CORPORATIONS REGULATIONS 1990 (REPEALED)
CHAPTER 1 - INTRODUCTORY
PART 1.0 - MISCELLANEOUS
REGULATION 1.0.01
1.0.01
NAME OF REGULATIONS
These Regulations are the Corporations Regulations 1990. REGULATION 1.0.02 INTERPRETATION 1.0.02(1)
In these Regulations, unless the contrary intention appears:
(a) consists of, or includes, the provision of financial services; or
(b) relates wholly or partly to the provision of financial services.
(a) in relation to a company - the number allotted to the company under paragraph 118(1)(a) or 601BD(1)(a) of the Corporations Law or subregulation 10.1.04(2); or
(b) in relation to a registered body - the number allotted to it under section 601CB or 601CE of the Corporations Law; or
(c) in relation to an auditor or a liquidator (including an official liquidator or a liquidator of a specified body corporate) - the number allotted to a person on registration of that person as an auditor or a liquidator.
1.0.02(3)
In these regulations, a reference to a form by number is a reference to the form so numbered in Schedule 2.
REGULATION 1.0.03 APPROVED AND PRESCRIBED FORMS 1.0.03(1)
A form in Schedule 2 mentioned in an item in column 4 of Schedule 1 is prescribed for the provision of the Corporations Law, or of these regulations, that is specified in the item in column 2.
1.0.03(2)
In a form, unless the contrary intention appears, a reference to a Chapter, Part, Division, section, subsection, paragraph or subparagraph is a reference to that Chapter, Part, Division, section, subsection, paragraph or subparagraph of the Corporations Law.
REGULATION 1.0.04 1.0.04 DIRECTIONS AND INSTRUCTIONS IN FORMS
A form must be completed in accordance with the directions and instructions specified in the form. REGULATION 1.0.05 DOCUMENTS AND INFORMATION REQUIRED BY FORMS 1.0.05(1)
If a form requires:
(a) the lodging of a document; or
(b) the giving of information:
1.0.05(2)
If the Corporations Law requires particulars to be provided by the giving of information in a form, the particulars included in the form are taken to be the particulars required:
(a) if the form is an approved form - for the provision of the Law, except section 348 or 349, for which the form is approved under paragraph 350(b) of the Law; and
(b) if the form is a prescribed form - for the provision of the Law for which the form is included in Schedule 2.
REGULATION 1.0.06 ANNEXURES ACCOMPANYING FORMS 1.0.06(1)
In this regulation, annexure includes a document that is with a form.
1.0.06(2)
An annexure to a form must:
(a) have an identifying mark; and
(b) be endorsed with the words:
(c) be signed by each person signing the form to which the document is annexed.
1.0.06(3)
The pages in an annexure must be numbered consecutively.
1.0.06(4)
If a form has a document annexed, the following particulars of the annexure must be written on the form:
(a) the identifying mark; and
(b) the number of pages.
REGULATION 1.0.07 1.0.07 GENERAL REQUIREMENTS FOR DOCUMENTS
Unless ASIC otherwise approves, a document to be lodged must:
(a) be on white or light pastel colour paper:
(b) be clearly printed or written in black or dark blue in a manner that is permanent and will make possible a reproduction, by photographic, computerised or other electronic means that is satisfactory to ASIC; and
(c) not be a carbon copy or a copy reproduced by any spirit duplication method; and
(d) subject to paragraph (h), have margins of not less than 10 millimetres on all sides; and
(e) if it comprises 2 or more sheets, be fastened together securely in the top left-hand corner; and
(f) display on the first page of the document or, if the document is a single sheet, on that sheet:
(g) have the following information at the top left-hand of the first sheet:
(h) at the top right-hand of the first sheet, have a blank space that measures 35 millimetres from the top of the page and 65 millimetres from the right-hand side of the page; and
(j) if the document is a form relating to a no liability company, be completed by inserting the words "No Liability" in place of the word "Limited"; and
(k) in the case of an unlimited company, have the word "Limited" omitted; and
(l) if the document contains maps or charts on which areas have been distinguished by colour, also distinguish those areas by hatching, numbering or lettering. REGULATION 1.0.08 1.0.08 INFORMATION TO ACCOMPANY FINANCIAL DOCUMENTS LODGED FOR FINANCIAL YEARS
A document lodged under subsection 319(1) of the Corporations Law for a financial year must be accompanied by the approved form setting out the following information:
(a) if the disclosing entity is a company:
(b) if the disclosing entity is a body (other than a company):
(c) if the disclosing entity is a registered scheme:
A document lodged under section 320 of the Corporations Law for a half-year must be accompanied by the approved form setting out the following information:
(a) if the disclosing entity is a company:
(b) if the disclosing entity is a body (other than a company):
(c) if the disclosing entity is a registered scheme:
A document lodged under section 1001B of the Corporations Law must be accompanied by Form 1003 setting out the following information:
(a) if the disclosing entity is a body:
(b) if the disclosing entity is a registered scheme:
Unless these regulations state otherwise, a document relating to a corporation that is a proprietary company to which section 224A of the Corporations Law applies that does not have a director or secretary must be signed by the personal representative or trustee mentioned in that section. REGULATION 1.0.12 1.0.12 FORM OF NOTICE OF RESOLUTION
A copy of a resolution lodged under subsection 136(5), 157(2), 162(3), 238(1A), 246F(3), 254H(4), 254N(2), 256C(3), 260B(7), 461(2), 491(2), 506(1B), 507(11) or 510(1A) of the Corporations Law must be set out in, or annexed to, a notice in accordance with the approved form. REGULATION 1.0.13 1.0.13 TIME FOR LODGING DOCUMENTS
If:
(a) a document must be lodged; and
(b) the period within which the document must be lodged is not prescribed;
(c) if paragraph (d) does not apply - within one month; or
(d) if the document is to be lodged by a foreign company and ASIC allows a further period because of special circumstances - that further period;
If notice must be given under these regulations of:
(a) the address of an office or a proposed office; or
(b) the address of a place of business;
(c) if applicable, the number of the room in which; and
(d) if applicable, the number of the floor or level on which; and
(e) the place in Australia in which;
An affidavit or statement in writing must be sworn or made, on behalf of a corporation, by a director or a secretary of the corporation.
1.0.15(2)
If an affidavit is sworn outside Australia, the affidavit is sufficient if it appears to be sworn in accordance with the requirements of the law of that place.
REGULATION 1.0.16 1.0.16 CERTIFICATION AND VERIFICATION OF CERTAIN DOCUMENTS
A document relating to a corporation or managed investment scheme that is to be certified or verified must be certified or verified in the approved form and signed by:
(a) a director or secretary of the corporation, or of the responsible entity of the scheme, who resides in Australia or an external territory; or
(b) an agent of the corporation or entity or, if the agent is a company, a director or secretary of the company who resides in Australia or an external territory. REGULATION 1.0.17 1.0.17 DOCUMENTS SIGNED OR SWORN IN ACCORDANCE WITH THE RULES
A document that is signed, or an affidavit or statement that is sworn or made, in accordance with the rules is taken to have been:
(a) signed in accordance with regulation 1.0.11; or
(b) sworn or made in accordance with regulation 1.0.15;
For the purposes of section 53 of the Corporations Law, the following provisions of that law are prescribed:
(a) section 657A;
(b) paragraph (c) of the definition of associate in section 9. REGULATION 1.0.19 CORRESPONDING LAW 1.0.19(1)
For the purposes of subparagraph 58(4)(a)(ii) of the Corporations Law, subsection 37(1A) of the Securities Industry Act 1980 is declared to be a provision of a previous law that corresponds to subsection 771(1) of the Corporations Law.
1.0.19(2)
For the purposes of subparagraph 58(4)(a)(ii) of the Corporations Law, subsection 45(2) of the Futures Industry Act 1986 is declared to be a provision of a previous law that corresponds to subsection 1127(1) of the Corporations Law.
REGULATION 1.0.20 1.0.20 COPIES OF ORDERS TO BE LODGED
A person who obtains an order of the Court under or for the purposes of:
(c) subsection 266(4); or
(d) section 274; or
(e) section 484; or
(f) section 583; or
(g) section 585; or
(h) section 601ND; or
(ha) subsection 1457(2); or
(j) section 1322;
If an order or copy of an order of a court is lodged with ASIC, it must be accompanied by a cover page in Form 105 identifying the legislative provision or other law under which the order was made and the nature of the order. REGULATION 1.0.22 1.0.22 MODIFICATION OF SECURITIES INDUSTRY ACT 1980
For the purposes of section 79 of the Corporations Act 1989, section 36B of the Securities Industry Act 1980 is modified by adding at the end:
The amount specified in an item in column 3 of Schedule 4 is prescribed in relation to the matter specified in the item in column 2. PART 1.2 - INTERPRETATION Division 1 - Share ratio contracts Subdivision A - Preliminary REGULATION 1.2.01 WHAT IS A SHARE RATIO CONTRACT? 1.2.01(1)
For the purposes of this Part, a share ratio contract is an agreement under which:
(a) a particular person will be under an obligation to pay, or will have a right to receive, an amount of money; and
(b) whether the obligation or right exists will depend on a state of affairs at a future time, where:
(c) the amount will be calculated in a manner specified in accordance with the agreement by reference to that state of affairs;
(d) has any other effect; or
(e) may be varied or discharged before that future time.
1.2.01(2)
For the purposes of subparagraph (1)(b)(ii), a relevant ratio is worked out in accordance with the ratio:
(a) the Australian Stock Exchange All Ordinaries Share Price Index;
(b) the Australian Stock Exchange Fifty Leaders Share Price Index;
(c) the Australian Stock Exchange Twenty Leaders Share Price Index;
(d) the Australian Stock Exchange All Industrials Share Price Index;
(e) the Australian Stock Exchange All Resources Share Price Index;
(f) the Australian Stock Exchange Gold Share Price Index.
Subdivision B - Application of Chapters 6D and 7 of the Corporations Law to share ratio contracts REGULATION 1.2.02 1.2.02 RELEVANT AGREEMENTS - PARAGRAPH 92A(1)(B) OF THE CORPORATIONS LAW
A share ratio contract is prescribed for the purposes of paragraph 92A(1)(b) of the Corporations Law. REGULATION 1.2.03 APPLICATION OF CHAPTER 7 OF THE CORPORATIONS LAW 1.2.03(1)
Subject to subregulation (2) and regulations 1.2.04, 1.2.05 and 1.2.06, Chapter 7 of the Corporations Law applies to share ratio contracts as if:
(a) the contracts were securities; and
(b) a reference to the sale of securities by a person were a reference to the disposal by the person of a share ratio contract; and
(c) a reference to the purchase of securities by a person were a reference to the person:
1.2.03(2)
For the purposes of paragraph (1)(b), a person disposes of a share ratio contract if the person takes, or causes to be taken, action that closes out the share ratio contract (whether the action is taken on behalf of that person or of another person).
1.2.03(3)
In this regulation:
(a) if the value of the contract at a particular future time is less, by a particular amount, than the value of the contract at a particular earlier time - an obligation to pay that amount; and
(b) if the value of the contract at a particular future time is greater, by a particular amount, than the value of the contract at a particular earlier time - a right to receive that amount.
(a) discharge the obligations of the person in the bought position, or sold position, under the share ratio contract as a result of the matching up of the share ratio contract with a share ratio contract of the same kind under which the person has assumed an offsetting sold position, or offsetting bought position, as the case may be; or
(b) otherwise discharge the obligations of a party to the share ratio contract.
(a) if the value of the contract at a particular future time is greater, by a particular amount, than the value of the contract at a particular earlier time - an obligation to pay that amount; and
(b) if the value of the contract at a particular future time is less, by a particular amount, than the value of the contract at a particular earlier time - a right to receive that amount.
REGULATION 1.2.04 1.2.04 APPLICATION OF DIVISION 2A OF PART 7.11 OF THE CORPORATIONS LAW TO SHARE RATIO CONTRACTS
Division 2A of Part 7.11 of the Corporations Law applies to a share ratio contract as if:
(a) the definition of securities were omitted from subsection 1002A(1) of the Law; and
(b) the contract were securities of a body corporate, where the shares of that body corporate are the shares to which the contract relates. REGULATION 1.2.05 1.2.05 APPLICATION OF CERTAIN PROVISIONS OF CHAPTER 7 OF THE CORPORATIONS LAW TO SHARE RATIO CONTRACTS
Sections 997, 1001 and 1013 of the Corporations Law apply to a share ratio contract as if the contract were securities of a body corporate, where the shares of that body corporate are the shares to which the contract relates. REGULATION 1.2.06 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW 1.2.06(1)
Chapter 6D of the Corporations Law does not apply to a share ratio contract.
1.2.06(2)
The following provisions of Chapter 7 of the Corporations Law do not apply to a share ratio contract:
(a) sections 775, 842, 843 and 844;
(b) Division 2 of Part 7.4;
(c) Part 7.13.
REGULATION 1.2.07 RESTRICTIONS ON DEALERS IN SHARE RATIO CONTRACTS 1.2.07(1)
In this regulation and in regulation 1.2.08:
1.2.07(2)
The holder of a dealers licence may deal in a share ratio contract on behalf of another person only if:
(a) the holder:
(b) ASIC approves, in writing, the holder to deal in those contracts; or
(c) subject to regulation 1.2.09, regulation 8.3.02 applies to the dealing in the contract.
REGULATION 1.2.08 1.2.08 RESTRICTIONS ON SECURITIES LICENSEES IN PROVIDING INVESTMENT ADVICE IN RELATION TO SHARE RATIO CONTRACTS
The holder of a securities licence may:
(a) carry on an investment advice business in relation to a share ratio contract; or
(b) hold himself or herself out as an investment adviser in relation to a share ratio contract;
(c) the holder:
(d) ASIC approves, in writing, the holder to carry on that business, or hold himself or herself out as an investment adviser, in relation to that contract; or
(e) subject to regulation 1.2.09, regulation 8.3.02 applies to the dealing in the contract to which the business, or the holding out as an adviser, relates.
For the purposes of paragraphs 1.2.07(2)(c) and 1.2.08(e), Part 8.3 of the Corporations Law is taken to apply to a dealing in a share ratio contract, being a dealing of a kind mentioned in either of those paragraphs, as if a reference to a futures brokers licence in subparagraph 8.3.02(2)(a)(ii), (d)(iv), (e)(iii) or (f)(ii) of these regulations were a reference to a dealers licence.
Chapter 8 of the Corporations Law, other than the following provisions of that Chapter, does not apply to a share ratio contract:
(a) subject to subregulation (2) - sections 1137, 1138, 1205 to 1208 and 1210;
(b) Part 8.7 (except sections 1258 and 1267).
1.2.10(2)
For the purposes of paragraph (1)(a):
(a) section 1207 applies as if paragraph 1207(1)(a) were omitted; and
(b) section 1210 applies as if the words "in the prescribed form" (in subparagraph 1210(a)(iii)) were omitted.
1.2.10(3)
The provisions of Chapter 8 of the Corporations Law specified in paragraphs (1)(a) and (b) apply to a dealing in a share ratio contract as if:
(a) a reference to a futures advice business were a reference to an investment advice business; and
(b) a reference to a futures broker were a reference to a dealer; and
(c) a reference to a futures exchange were a reference to a local stock exchange or an approved securities organisation; and
(d) a reference to a futures market were a reference to a stock market; and
(e) a reference to a clearing house for a futures market or a futures exchange were a reference to a body corporate that provides facilities for the registration of share ratio contracts acquired, or disposed of, on a stock market of a securities exchange.
Subdivision D - Miscellaneous REGULATION 1.2.11 1.2.11 SUBSECTION 93(7) OF THE CORPORATIONS LAW NOT TO APPLY IN CERTAIN CIRCUMSTANCES
Subsection 93(7) of the Corporations Law does not apply, in relation to a share ratio contract, to a person who does an act that constitutes, or does acts that together constitute, a dealing in the contract.Note This regulation is made under subsection 92A(2) of the Corporations Law.
Division 2 - Deliverable bond futures contracts
Subdivision A - Preliminary
REGULATION 1.2.12
WHAT IS A DELIVERABLE BOND FUTURES CONTRACT?
1.2.12(1)
For the purposes of this Division, a deliverable bond futures contract is a standardised agreement under which a person has a Chapter 8 obligation to transfer, or to accept a transfer of, a particular quantity of 3 year, or 10 year, Treasury bonds or a chose in action representing the bonds:
(a) at a particular future time; and
(b) for a particular price, or a price to be calculated in a particular manner.
1.2.12(2)
An agreement is a deliverable bond futures contract:
(a) whether or not the subject matter of the agreement is in existence; and
(b) whether or not the agreement has any other effect; and
(c) whether or not the agreement is capable of being varied or discharged before that future time; and
(d) where it appears likely at the time the agreement is entered into, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the agreement), that:
(e) whether the Chapter 8 obligation of a person in the sold position under the agreement to transfer bonds in accordance with that agreement is discharged by that person, or another person, effecting the transfer; and
(f) whether or not the Chapter 8 obligation referred to in paragraph (e) is discharged by the novation of a chose in action; and
(g) whether or not a person in the bought position under the agreement receives a proprietary interest in a particular bond.
Subdivision B - Application of Chapters 6D and 7 of the Corporations Law to deliverable bond futures contracts REGULATION 1.2.13 1.2.13 PRESCRIBED CHAPTER 8 AGREEMENT
A deliverable bond futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.14 1.2.14 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW
Chapters 6D and 7 of the Corporations Law do not apply to a deliverable bond futures contract. Subdivision C - Application of Chapter 8 of the Corporations Law to deliverable bond futures contracts REGULATION 1.2.15 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW 1.2.15(1)
Subject to subregulation (2), Chapter 8 of the Corporations Law applies in relation to a deliverable bond futures contract as if it were a futures contract.
1.2.15(2)
Where a member of the Reserve Bank Information and Transfer System (known as RITS) transfers bonds which are the subject of a deliverable bond futures contract then, for the purposes of that transfer, Part 8.3 and sections 1206, 1207, 1209, 1210, 1234 and 1235 of the Corporations Law do not apply to that member.
Subdivision D - Modifications of the Corporations Law applying in relation to deliverable bond futures contracts REGULATION 1.2.16 1.2.16 MODIFICATION OF SECTION 9 OF THE CORPORATIONS LAW
Section 9 of the Corporations Law is modified in relation to its application to deliverable bond futures contracts:
(a) by omitting the definition of bought position and substituting:
(b) by omitting the definition of sold position and substituting:
For the purposes of this Division:
(a) a futures option over a deliverable bond futures contract is an option, or a Chapter 8 right, to assume a bought position, or a sold position, in relation to the contract:
(b)
A futures option over a deliverable bond futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.19 1.2.19 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW
Chapters 6D and 7 of the Corporations Law do not apply to a futures option over a deliverable bond futures contract. Subdivision C - Application of Chapter 8 of the Corporations Law to futures options over deliverable bond futures contracts REGULATION 1.2.20 1.2.20 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW
Chapter 8 of the Corporations Law applies in relation to a futures option over a deliverable bond futures contract as if it were a futures contract.
For the purposes of this Division, a deliverable share futures contract is a standardised agreement under which a person has a Chapter 8 obligation to transfer, or to accept a transfer of, a particular quantity of shares of a listed corporation:
(a) at a particular future time; and
(b) for a particular price, or a price to be calculated in a particular manner.
1.2.21(2)
An agreement is a deliverable share futures contract:
(a) whether or not the subject matter of the agreement is in existence; and
(b) whether or not the agreement has any other effect; and
(c) whether or not the agreement is capable of being varied or discharged before that future time; and
(d) where it appears likely at the time the agreement is entered into, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the agreement), that:
(e) whether the Chapter 8 obligation of a person in the sold position under the agreement to transfer shares in accordance with that agreement is discharged by that person, or another person, effecting the transfer.
Subdivision B - Application of Chapters 6D and 7 of the Corporations Law to deliverable share futures contracts REGULATION 1.2.22 1.2.22 PRESCRIBED CHAPTER 8 AGREEMENT
A deliverable share futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.23 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW 1.2.23(1)
Chapter 6D of the Corporations Law does not apply to a deliverable share futures contract.
1.2.23(2)
Chapter 7 of the Corporations Law, except Part 7.2A, subsection 979(1) (as modified by regulation 1.2.26), sections 995 and 998, Division 2A of Part 7.11, Part 7.13 and section 1114, does not apply to a deliverable share futures contract.
1.2.23(3)
However, Part 7.10 of the Corporations Law applies if a claim does not relate directly to a transfer of shares between the person in the bought position and the person in the sold position under a deliverable share futures contract.
Subdivision C - Application of Chapter 8 of the Corporations Law to deliverable share futures contracts REGULATION 1.2.24 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW 1.2.24(1)
Subject to subregulation (2), Chapter 8 of the Corporations Law applies in relation to a deliverable share futures contract as if it were a futures contract.
1.2.24(2)
Where a SCH participant deals in shares which are the subject of a deliverable share futures contract then, for the purposes of that dealing, Part 8.3 and sections 1206, 1207, 1209, 1210, 1234 and 1235 of the Corporations Law do not apply to that participant.
Subdivision D - Modifications of the Corporations Law applying in relation to deliverable share futures contracts REGULATION 1.2.25 1.2.25 MODIFICATION OF SECTION 9 OF THE CORPORATIONS LAW
Section 9 of the Corporations Law is modified in relation to its application to deliverable share futures contracts:
(a) by omitting the definition of bought position and substituting:
(b) by omitting the definition of sold position and substituting:
Subsection 979(1) of the Corporations Law is modified, in its application to a deliverable share futures contract, by omitting all words after "The Board may" and substituting "seek the assistance of the Sydney Futures Exchange to determine whether a claim against SEGC relates to a deliverable share futures contract.". REGULATION 1.2.27 1.2.27 MODIFICATION OF DIVISION 1 OF PART 8.7 OF THE CORPORATIONS LAW
In spite of section 1251 of the Corporations Law, for the purposes of sections 1252 to 1257 (inclusive) of the Corporations Law, a deliverable share futures contract concerns a body corporate if the contract relates to shares of the body corporate.
For the purposes of this Division:
(a) a futures option over a deliverable share futures contract is an option, or a Chapter 8 right, to assume a bought position, or a sold position, in relation to the contract:
(b)
A futures option over a deliverable share futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.30 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW 1.2.30(1)
Chapter 6D of the Corporations Law does not apply to a futures option over a deliverable share futures contract.
1.2.30(2)
Chapter 7, except Division 2A of Part 7.11, of the Corporations Law does not apply to a futures option over a deliverable share futures contract.
Subdivision C - Application of Chapter 8 of the Corporations Law to futures options over deliverable share futures contracts REGULATION 1.2.31 1.2.31 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW
Chapter 8 of the Corporations Law applies in relation to a futures option over a deliverable share futures contract as if it were a futures contract. Subdivision D - Modifications of the Corporations Law applying in relation to futures options over deliverable share futures contracts REGULATION 1.2.32 1.2.32 MODIFICATION OF DIVISION 1 OF PART 8.7 OF THE CORPORATIONS LAW
In spite of section 1251 of the Corporations Law, for the purposes of sections 1252 to 1257 (inclusive) of the Corporations Law, a futures option over a deliverable share futures contract concerns a body corporate if the contract relates to shares of the body corporate.
For the purposes of section 111AJ of the Corporations Law, securities:
(a) of a body that, under the listing rules of the Australian Stock Exchange Limited, is an exempt foreign entity; or
(b) that are quoted on Australian Bloodstock Exchange Limited;
For the purposes of section 111AS of the Corporations Law, a foreign company is exempt from the disclosing entity provisions in respect of ED securities under section 111AG of the Law if:
(a) the company issues the securities in connection with a foreign takeover bid or foreign scheme of arrangement; and
(b) the securities issued are, at the time of issue, securities in a class of securities quoted on an approved foreign exchange; and
(c) the terms and conditions of the issue to citizens and Australian permanent residents are the same as those applying to each other person receiving securities that are in the same class; and
(d) the same notices, documents or other information (or, where applicable, an English translation of these) (modified, if necessary, to include any additional information for the purposes of complying with Chapter 6D of the Corporations Law) are given to Australian citizens or permanent residents as are given to each other person; and
(e) the notices, documents and other information are given to Australian citizens and permanent residents at the same time, or as soon as practicable after, they are given to those other persons; and
(f) in relation to the issue - the company complies with all legislative and stock exchange requirements in the place in which is located:
1.2A.02(2)
In this regulation:
(a) American Stock Exchange Inc.;
(b) New York Stock Exchange Inc.;
(c) New Zealand Stock Exchange;
(d) The Stock Exchange of Hong Kong Ltd;
(e) Stock Exchange of Singapore Limited;
(f) The Amsterdam Stock Exchange;
(g) the Frankfurt Stock Exchange;
(h) The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited;
(i) the Milan Stock Exchange;
(j) the NASDAQ National Market;
(k) the Paris Bourse;
(l) the Tokyo Stock Exchange;
(m) the Toronto Stock Exchange;
(n) the Zurich Stock Exchange.
(a) a foreign company and a class of its creditors; or
(b) a foreign company and a class of its members.
(a) all holders of a class of securities of a foreign company; or
(b) all holders of those securities except the bidder or the bidder and associates of the bidder.
REGULATION 1.2A.03 FOREIGN COMPANIES ISSUING SECURITIES UNDER EMPLOYEE SHARE SCHEME EXEMPT FROM THE DISCLOSING ENTITY PROVISIONS 1.2A.03(1)
For the purposes of section 111AS of the Corporations Law, a foreign company is exempt from the disclosing entity provisions in respect of an offer of shares in the company for issue or sale:
(a) that is made to employees of the company, or of an associated body corporate, under an employee share scheme; and
(b) in relation to which a disclosure document is lodged with ASIC.
1.2A.03(2)
Subregulation (1) is not affected by any action of an employee, the result of which is that another person who is not an employee acquires an interest in a share issued under the employee share scheme.
1.2A.03(3)
In this regulation:
(a) an employee share scheme is a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company only to a person who is a full-time or part-time director or employee of the company or of an associated body corporate when the offer is made; and
(b) a body corporate is an associated body corporate in relation to a foreign company if:
CHAPTER 2B - BASIC FEATURES OF A COMPANY PART 2B.6 - NAMES REGULATION 2B.6.01 AVAILABILITY OF NAMES (CORPORATIONS LAW, S 147) 2B.6.01(1)
For paragraphs 147(1)(a) and (b) of the Corporations Law, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.
2B.6.01(2)
For paragraph 147(1)(c) of the Corporations Law, a name is unacceptable for registration under the regulations if it is unacceptable under the rules set out in Part 2 of Schedule 6.
REGULATION 2B.6.02 CONSENTS REQUIRED FOR USE OF CERTAIN LETTERS, WORDS AND EXPRESSIONS 2B.6.02(1)
This regulation applies to a name if:
(a) the name:
(b) the name is, uses or includes:
2B.6.02(2)
In paragraph (1)(b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:
(a) as part of another word or expression; or
(b) in combination with other words or letters, or other symbols.
2B.6.02(3)
However, this regulation does not apply to use of the letters ADI as part of another word.
2B.6.02(4)
If an item in Part 4 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the Minister who is specified in the item.
2B.6.02(5)
If an item in Part 5 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.
REGULATION 2B.6.03 2B.6.03 EXEMPTIONS FROM REQUIREMENT TO SET OUT NAME AND ACN ON CERTAIN DOCUMENTS (CORPORATIONS LAW, S 155)
For section 155 of the Corporations Law, the exemptions provided for in Schedule 7 apply in relation to the requirements of subsection 153(2) of the Law. CHAPTER 2C - REGISTERS REGULATION 2C.1.01 2C.1.01 SECURITIES EXCHANGE (CORPORATIONS LAW, S 170(3))
For the purposes of subsection 170(3) of the Corporations Law, securities exchange means one of the following:
(a) Australian Stock Exchange Limited;
(b) The Ballarat Stock Exchange;
(c) The Bendigo Stock Exchange;
(d) The Stock Exchange of Newcastle Limited. REGULATION 2C.1.02 2C.1.02 FORM OF NOTICE (CORPORATIONS LAW, S 172(2))
A notice to be lodged under subsection 172(2) of the Corporations Law must be in the approved form. CHAPTER 2D - OFFICERS REGULATION 2D.1.02 2D.1.02 SECURITIES EXCHANGE (CORPORATIONS LAW S 205G)
For the purposes of subsection 205G(1) of the Corporations Law, securities exchange means one of the following:
(a) Australian Stock Exchange Limited;
(b) The Bendigo Stock Exchange;
(c) The Stock Exchange of Newcastle Limited. CHAPTER 2K - CHARGES PART 2K.2 - REGISTRATION REGULATION 2K.2.01 2K.2.01 LIEN OR CHARGE ON CROP, WOOL OR STOCK MORTGAGE THAT IS A REGISTRABLE SECURITY: PRESCRIBED LAW
For the purposes of subsection 262(5) of the Corporations Law, each of the following laws is a prescribed law of a State or Territory:
REGULATION 2K.2.02
2K.2.02
TIME PERIOD FOR THE PROVISIONAL REGISTRATION OF CHARGES
For the purposes of paragraph 265(5)(b) of the Corporations Law, the period in which a certificate must be produced to ASIC, being a certificate:
(a) to the effect set out in paragraph 265(4)(b) of the Law; and
(b) that relates to a notice, in respect of a charge on property of a company, that was lodged under section 263 or 264 of the Law at any time on or after the day commencing 30 days before the commencement of this regulation;
For the purposes of subsection 273(1) of the Corporations Law, the prescribed time is the date of commencement of section 273 of the Law. CHAPTER 2M - FINANCIAL REPORTS AND AUDIT PART 2M.3 - FINANCIAL REPORTING REGULATION 2M.3.01 FINANCIAL STATEMENTS - PRESCRIBED REQUIREMENTS (CORPORATIONS LAW, S 296(2)) 2M.3.01(1)
For subsection 296(2) of the Corporations Law, the financial report must comply:
(a) for a financial year commencing on or after 1 January 1991 and ending before 15 May 1997 - with the requirements set out in Schedule 5; and
(b) for a financial year commencing on or after 1 January 1991 and ending on or after 15 May 1997 but before 30 June 1997 with the requirements set out:
2M.3.01(2)
Subregulation (1) does not apply to a half-year accounting period of a disclosing entity unless the entity is a borrower in relation to debentures.
PART 2M.4 - AUDITOR REGULATION 2M.4.01 2M.4.01 NOTICE OF APPOINTMENT OF AUDITORS
The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC of the appointment by the entity of an auditor of the scheme under section 331AB of the Corporations Law within 14 days of the appointment. PART 2M.6 - MODIFICATION OF THE OPERATION OF CHAPTER 2M OF THE CORPORATIONS LAW REGULATION 2M.6.01 2M.6.01 MODIFICATIONS (CORPORATIONS LAW, S 343)
For section 343 of the Corporations Law, the operation of Chapter 2M of the Law is modified in accordance with this Part. REGULATION 2M.6.02 SPECIFIC EXEMPTION AND CLASS ORDERS - CERTAIN CORPORATIONS (CORPORATIONS LAW, PART 2M.6) 2M.6.02(1)
In this regulation:
(a) a company that is a wholly-owned subsidiary of a body corporate; or
(b) an Australian bank and each related body corporate; or
(c) BNP Pacific (Australia) Limited and each related body corporate; or
(d) Orix Australia Corporation Limited and each related body corporate.
2M.6.02(2)
Part 2M.6 of the Corporations Law has effect in relation to a prescribed corporation as if the references in sections 340, 341 and 342 of the Law to Parts 2M.2 and 2M.3 of the Law included a reference to Part 2M.4 of the Law.
REGULATION 2M.6.03 2M.6.03 FINANCIAL REPORTING - AUSTRALIAN BANKS AND LIFE OFFICES
The operation of Chapter 2M of the Corporations Law in relation to financial reporting in respect of Australian banks and life offices is modified in accordance with Schedule 5A. CHAPTER 5B - BODIES CORPORATE REGISTERED AS COMPANIES, AND REGISTRABLE BODIES PART 5B.2 - REGISTRABLE BODIES REGULATION 5B.2.01 5B.2.01 CERTIFIED COPIES OF CERTIFICATES OF INCORPORATION ETC
For the purposes of paragraphs 601CB(a) and 601CE(a) of the Corporations Law, a certified copy of a current certificate of the incorporation or registration in its place of origin of:
(a) a registrable Australian body; or
(b) a foreign company;
(c) within the period of 3 months immediately preceding the day on which it is lodged; or
(d) if ASIC permits - within a longer period;
(e) to whom the custody of the original document is committed under a law in force in the place of origin of the corporation or company; and
(f) being a person who exercises under that law functions similar to those exercised by ASIC. REGULATION 5B.2.02 5B.2.02 MANNER OF CERTIFYING CONSTITUENT DOCUMENTS
For the purposes of paragraphs 601CB(b) and 601CE(b) of the Corporations Law, a certified copy of a constitution of:
(a) a registrable Australian body; or
(b) a foreign company;
(c) within the period of 3 months immediately preceding the day on which it is lodged; or
(d) if ASIC permits - a longer period;
(e) by a person:
(f) by a notary public; or
(g) by a director or secretary of the body:
For the purposes of subsections 601CC(2) and 601CL(3) of the Corporations Law, a letter must be sent by post. REGULATION 5B.2.04 5B.2.04 MANNER OF SENDING NOTICES (CORPORATIONS LAW, SS 601CC(3) AND 601CL(4))
For the purposes of subsections 601CC(3) and 601CL(4) of the Corporations Law, a notice must be sent by prepaid certified mail. REGULATION 5B.2.05 5B.2.05 BALANCE SHEETS AND OTHER DOCUMENTS
The following particulars are prescribed for the purposes of Form 406 in relation to a return required under subsection 601CK(9) of the Corporations Law:
(a) the name of the company lodging the return;
(b) the day, month and year of the annual general meeting up to which the return is made;
(c) the address of the company's registered office in Australia, including, on separate lines:
(d) the amount of the authorised share capital of the company;
(e) the amount of paid up capital of the company;
(f) for each director of the company who is a natural person:
(g) for each director of the company that is a body corporate:
(h) for the agent of the company in Australia:
(i) a statement that the company is an exempt foreign company;
(j) the signature of a director, a secretary or the agent of the company;
(k) identification of the person who signed the return and the date on which it was signed;
(l) a certificate, signed and dated by the agent of the company, that the provisions of the Corporations Law relating to unclaimed moneys have been complied with in relation to the company. REGULATION 5B.2.06 NOTICES (CORPORATIONS LAW, S 601CV(1)) 5B.2.06(1)
A notice in writing of a change of name in accordance with paragraph 601CV(1)(a) of the Corporations Law, must have annexed to it:
(a) a copy of the certificate of incorporation or registration of the registered body, or a document of similar effect, being a certificate or document evidencing the change; or
(b) if no certificate or document of that kind exists - a copy of the instrument effecting the change;
5B.2.06(2)
A notice in writing of a change in a constitution or other document, in accordance with paragraph 601CV(1)(b) of the Corporations Law, must have annexed to it a copy of the instrument effecting the change or a copy of the document as changed, being a copy that is certified to be a true copy of that instrument or document by a person mentioned in paragraph 5B.2.02(e), (f) or (g).
5B.2.06(3)
A notice in writing of a change in director's powers, in accordance with subparagraph 601CV(1)(d)(i) of the Corporations Law, must have with it a memorandum in writing executed by or on behalf of the foreign company after a change in those powers stating the powers of its directors as changed.
PART 5B.3 - NAMES OF REGISTRABLE AUSTRALIAN BODIES AND FOREIGN COMPANIES REGULATION 5B.3.01 AVAILABILITY OF NAMES (CORPORATIONS LAW, S 601DC) 5B.3.01(1)
For paragraphs 601DC(1)(a) and (b) of the Corporations Law, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.
5B.3.01(2)
For paragraph 601DC(1)(c) of the Corporations Law, a name is unacceptable for registration under the regulations if the name is unacceptable under the rules set out in Part 2 of Schedule 6.
REGULATION 5B.3.02 CONSENTS REQUIRED FOR USE OF CERTAIN LETTERS, WORDS AND EXPRESSIONS 5B.3.02(1)
This regulation applies to a name if:
(a) the name:
(b) the name is, uses or includes:
5B.3.02(2)
In paragraph (1)(b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:
(a) as part of another word or expression; or
(b) in combination with other words or letters, or other symbols.
5B.3.02(3)
However, this regulation does not apply to use of the letters ADI as part of another word.
5B.3.02(4)
If an item in Part 4 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the Minister who is specified in the item.
5B.3.02(5)
If an item in Part 5 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.
REGULATION 5B.3.03 5B.3.03 EXEMPTIONS FROM REQUIREMENT TO SET OUT ARBN ETC ON CERTAIN DOCUMENTS (CORPORATIONS LAW, S 601DG)
For section 601DG of the Corporations Law, the exemptions provided for in Schedule 7 apply in relation to the requirements of paragraphs 601DE(1)(b), (c) and (d) of the Law. CHAPTER 5C - MANAGED INVESTMENT SCHEMES PART 5C.1 - REGISTRATION OF MANAGED INVESTMENT SCHEMES REGULATION 5C.1.01 APPLYING FOR REGISTRATION 5C.1.01(1)
An application under section 601EA of the Corporations Law to register a managed investment scheme must be in the approved form.
5C.1.01(2)
The form must state the name of the managed investment scheme.
5C.1.01(3)
The stated name must not be the same as the name of:
(a) another managed investment scheme that is the subject of an application for registration that is lodged but not yet determined; or
(b) a registered scheme.
5C.1.01(4)
A statement made for paragraph 601EA(4)(c) of the Corporations Law must be in the approved form.
REGULATION 5C.1.02 CHANGE OF NAME OF REGISTERED SCHEMES 5C.1.02(1)
To change the name of a registered scheme, the responsible entity of the scheme must lodge a notice in the approved form stating the proposed name of the scheme.
5C.1.02(2)
The stated name must not be the same as the name of:
(a) another managed investment scheme that is the subject of an application for registration under section 601EB of the Corporations Law that is lodged but not yet determined; or
(b) a registered scheme.
5C.1.02(3)
On application in accordance with this regulation, ASIC must amend the record of the registration of the scheme to include the name of the scheme as proposed to be amended.
REGULATION 5C.1.03 MODIFICATION (CORPORATIONS LAW S 601QB) 5C.1.03(1)
For the purposes of section 601QB of the Corporations Law, the operation of Chapter 5C of the Law is modified in accordance with this regulation.
5C.1.03(2)
If:
(a) a managed investment scheme is registered under section 601EB of the Corporations Law; and
(b) the managed investment scheme is also registered on the Australian Business Register; and
(c) the last 9 digits of the ABN of the registered scheme are the same, and in the same order, as the last 9 digits of its ARSN; and
(d) a document relating to the scheme is lodged with ASIC, and displays that ABN;
PART 5C.2 - THE RESPONSIBLE ENTITY REGULATION 5C.2.01 5C.2.01 DUTY OF RESPONSIBLE ENTITIES' AGENTS - SURVEILLANCE CHECKS
The agent of a responsible entity must take all reasonable steps to assist the entity and ASIC when ASIC is conducting a check whether the entity is complying with the constitution and compliance plan of a registered scheme and with the Corporations Law. REGULATION 5C.2.02 5C.2.02 APPOINTMENT OF TEMPORARY RESPONSIBLE ENTITIES
ASIC, or a member of a registered scheme, may apply to the Court for the appointment of a temporary responsible entity of the scheme if ASIC or member reasonably believes that the appointment is necessary to protect scheme property or the interests of members of the scheme. REGULATION 5C.2.03 5C.2.03 FORM OF NOTICES (CORPORATIONS LAW, SS 601FL(2) AND 601FM(2))
A notice to be lodged under subsection 601FL(2) or 601FM(2) of the Corporations Law must be in the approved form. REGULATION 5C.2.04 5C.2.04 NOTICE OF APPOINTMENT OF TEMPORARY RESPONSIBLE ENTITIES
As soon as practicable after the Court appoints a temporary responsible entity for a registered scheme on application by a member of the scheme under section 601FN of the Corporations Law, the member must lodge a notice in the approved form that tells ASIC of the appointment. REGULATION 5C.2.05 5C.2.05 FORM OF NOTICES (CORPORATIONS LAW, S 601FP(3))
A notice to be lodged under subsection 601FP(3) of the Corporations Law must be in the approved form. PART 5C.4 - THE COMPLIANCE PLAN REGULATION 5C.4.01 5C.4.01 AGENTS' AUTHORITIES TO BE LODGED
If a compliance plan, or modification of a plan, lodged with ASIC under section 601HC or subsection 601HE(3) of the Corporations Law is signed by an agent of the directors of the responsible entity of the registered scheme to which the plan relates, the authority to do so, or a copy of the authority verified by a director of the entity, must be attached to the plan or modification. REGULATION 5C.4.02 5C.4.02 AGENTS TO ASSIST AUDITORS OF COMPLIANCE PLANS
An agent of the responsible entity of a registered scheme, and an officer of the agent, must:
(a) allow the auditor of the scheme's compliance plan to have access to the books of the scheme; and
(b) if the auditor requires the agent or entity to give the auditor information or an explanation for the audit - give the information or explanation to the auditor; and
(c) otherwise assist the conduct of the audit. PART 5C.5 - THE COMPLIANCE COMMITTEE REGULATION 5C.5.01 RESPONSIBLE ENTITIES ETC TO ASSIST COMPLIANCE COMMITTEES 5C.5.01(1)
This regulation applies to a person who is the responsible entity of a registered scheme, an officer of the entity, an agent of the entity or an officer of the agent.
5C.5.01(2)
The person must:
(a) allow the compliance committee to have access to the books of the scheme; and
(b) if the committee requires the person to give the committee information or an explanation about the scheme - give the information or explanation to the committee; and
(c) otherwise assist the committee in the performance of its functions.
PART 5C.9 - WINDING UP REGULATION 5C.9.01 5C.9.01 NOTICE OF COMMENCEMENT OF WINDING UP
The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC that winding up of the scheme has commenced, or been completed, within 14 days of the commencement or completion. PART 5C.11 - EXEMPTIONS AND MODIFICATIONS Division 1 - Exemptions REGULATION 5C.11.01 5C.11.01 CERTAIN FUNDS NOT MANAGED INVESTMENT FUNDS
For paragraph (n) of the definition of managed investment scheme in section 9 of the Corporations Law, an approved benefit fund within the meaning of section 16B of the Life Insurance Act 1995 is not a managed investment scheme. Division 2 - Modifications REGULATION 5C.11.02 5C.11.02 MODIFICATIONS
For section 601QB of the Corporations Law, the operation of the Law is modified in accordance with this Division. REGULATION 5C.11.03 5C.11.03 REGISTER OF MEMBERS OF REGISTERED SCHEMES (CORPORATIONS LAW, S 169(1))
The register of members of a registered scheme need not contain information about a member whose only interest in the scheme is as the holder of an option. REGULATION 5C.11.04 5C.11.04 NAMES OF REGISTERED SCHEMES (CORPORATIONS LAW, S 601EB(1))
ASIC must not register a managed investment scheme if the name of the scheme stated under subregulation 5C.1.01(2) does not comply with subregulation 5C.1.01(3). REGULATION 5C.11.05 5C.11.05 RELATED PARTIES - FINANCIAL BENEFITS (CORPORATIONS LAW, S 243J(1))
Subsection 243J(1) of the Corporations Law has effect in relation to a registered scheme as if the reference to the day on and after which section 243H of the Law applies to the responsible entity of the scheme because of section 1376 of the Law were a reference to the commencement of this regulation. REGULATION 5C.11.05A 5C.11.05A SCHEMES NOT REQUIRED TO BE REGISTERED (CORPORATIONS LAW S 601ED)
Subsection 601ED(2) of the Corporations Law has effect as if a managed investment scheme does not have to be registered if all the issues of interests in the scheme that have been made would not have needed disclosure to investors under Part 6D.2 of the Law if the scheme had been registered when the issues were made. REGULATION 5C.11.06 5C.11.06 LIABILITY OF RESPONSIBLE ENTITIES (CORPORATIONS LAW, S 601FB(4))
In determining the liability under subsection 601FB(2) of the Corporations Law of the responsible entity of a registered scheme to the members of the scheme for an act or omission of an agent appointed by the entity under that subsection, the amount recovered under subsection 601FB(4) of the Law is to be disregarded. REGULATION 5C.11.08 5C.11.08 TRUSTEES ETC NOT LIABLE IN CERTAIN CIRCUMSTANCES (CORPORATIONS LAW, S 1463)
The trustee, representative or management company is not liable in a civil action or civil proceeding for deciding to retire, or giving a retirement notice, under section 1455 of the Corporations Law. CHAPTER 5 - EXTERNAL ADMINISTRATION PART 5.1 - ARRANGEMENTS AND RECONSTRUCTIONS REGULATION 5.1.01 PRESCRIBED INFORMATION FOR THE PURPOSES OF PARAGRAPH 411(3)(b) AND SUBPARAGRAPH 412(1)(a)(ii) OF THE CORPORATIONS LAW 5.1.01(1)
For the purposes of paragraph 411(3)(b) and subparagraph 412(1)(a)(ii) of the Corporations Law, unless ASIC otherwise allows, the explanatory statement must:
(a) for a proposed arrangement between a Part 5.1 body and its creditors, or a class of its creditors:
(b) for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, other than a proposed arrangement referred to in paragraph (c):
(c) for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, in relation to the reconstruction of a corporation, or the amalgamation of 2 or more corporations, if:
5.1.01(2)
For the purposes of Schedule 8, securities exchange means Australian Stock Exchange Limited.
REGULATION 5.1.02 5.1.02 GIVING NOTICE UNDER SUBSECTION 414(2) OR (9) OF THE CORPORATIONS LAW
A notice under subsection 414(2) or (9) of the Corporations Law must be given to a person:
(a) by personal delivery; or
(b) by prepaid post to the person's address shown in the books of the transferor company. PART 5.2 - RECEIVERS, AND OTHER CONTROLLERS, OF CORPORATIONS REGULATION 5.2.001 5.2.001 CONTROLLER'S NOTICE TO OWNER OR LESSOR OF PROPERTY - HOW GIVEN
A notice under subsection 419A(3) of the Corporations Law must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner's or lessor's usual place of residence or business or the place of residence or business last known to the controller. REGULATION 5.2.01 5.2.01 CERTIFIED COPIES OF REPORTS
A copy of:
(a) a report that must be lodged; and
(b) a certificate or other document annexed to that report;
(c) for a copy lodged for the purposes of paragraph 429(2)(c) of the Corporations Law - the controller of property of the corporation; or
(f) for a copy lodged for the purposes of subsection 475(7) of the Corporations Law - by the liquidator or provisional liquidator of the company. PART 5.3A - ADMINISTRATION OF A COMPANY'S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT REGULATION 5.3A.01 ADMINISTRATOR'S NOTICE OF ENDING OF ADMINISTRATION 5.3A.01(1)
If the administration of a company ends on the happening of an event of a kind referred to in subsection 435C(2) or (3) of the Corporations Law, the administrator of the company or of the deed of company arrangement (as the case may be) must lodge a notice of the happening of the event and the ending of the administration of the company as soon as practicable after the event.
5.3A.01(2)
Subregulation (1) does not apply if a notice of the happening of the event is lodged in accordance with the Corporations Law or a provision of these regulations other than this regulation.
REGULATION 5.3A.02 5.3A.02 ADMINISTRATOR TO SPECIFY VOIDABLE TRANSACTIONS IN STATEMENT
The administrator of a company under administration, in setting out his or her opinions in a statement referred to in paragraph 439A(4)(b) of the Corporations Law, must specify whether there are any transactions that appear to the administrator to be voidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator under Part 5.7B of the Corporations Law. REGULATION 5.3A.03 5.3A.03 ADMINISTRATOR TO LODGE NOTICE OF APPOINTMENT
If an administrator is appointed under subsection 436E(4), subsection 444A(2), section 449B, subsection 449C(1), (4) or (6), or subsection 449D(1) or (2), of the Corporations Law, the administrator must lodge a notice of the appointment before the end of the next business day after the appointment. REGULATION 5.3A.04 5.3A.04 NOTICE OF CHANGE OF ADMINISTRATOR'S ADDRESS
An administrator of a company under administration or of a deed of company arrangement must, within 14 days after a change in the location of the administrator's office, lodge notice of the change. REGULATION 5.3A.05 5.3A.05 ADMINISTRATOR'S NOTICE TO OWNER OR LESSOR OF PROPERTY - HOW GIVEN
A notice under subsection 443B(3) of the Corporations Law must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner's or lessor's usual place of residence or business or the place of residence or business last known to the administrator. REGULATION 5.3A.06 5.3A.06 PROVISIONS INCLUDED IN DEED OF COMPANY ARRANGEMENT
For the purposes of subsection 444A(5) of the Corporations Law, the prescribed provisions are those set out in Schedule 8A. REGULATION 5.3A.07 ADMINISTRATOR BECOMES LIQUIDATOR - ADDITIONAL CASES 5.3A.07(1)
For the purposes of subsection 446B(1) of the Corporations Law, a company that has executed a deed of company arrangement is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:
(a) if the Court at a particular time makes an order under section 445D of the Corporations Law terminating the deed of company arrangement; or
(b) if the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up - if those circumstances exist at a particular time.
5.3A.07(2)
The company is taken to have passed the special resolution:
(a) at the time referred to in paragraph (1)(a) or (b), as the case may be; and
(b) without a declaration having been made and lodged under section 494 of the Corporations Law.
5.3A.07(3)
Section 497 of the Corporations Law is taken to have been complied with in relation to the winding up.
5.3A.07(4)
For the purposes of subsection 499(1) of the Corporations Law:
(a) the company is taken to have nominated the administrator of the deed of company arrangement to be liquidator for the purposes of the winding up; and
(b) the creditors are taken not to have nominated anyone.
5.3A.07(5)
The liquidator must:
(a) within 7 days after the day on which the company is taken to have passed the resolution, lodge a written notice stating that the company is taken because of this regulation to have passed such a resolution and specifying that day; and
(b) cause a notice of that kind to be published, within 21 days after that day:
5.3A.07(6)
Section 482 of the Corporations Law applies in relation to the winding up as if it were a winding up in insolvency or by the Court.
5.3A.07(7)
An application under section 482 of the Corporations Law as applying because of subregulation (6) may be made:
(a) despite subsection 499(4) of the Corporations Law, by the company pursuant to a resolution of the board; or
(b) by the liquidator; or
(c) by a creditor; or
(d) by a contributory.
REGULATION 5.3A.08 5.3A.08 PUBLICATION OF NOTICE OF FAILURE TO EXECUTE INSTRUMENT OF TERMS OF DEED
For the purposes of paragraph 450C(b) of the Corporations Law, a notice under paragraph 450C(a) of the Corporations Law must be published:
(a) in a national newspaper; or
(b) in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction. REGULATION 5.3A.09 5.3A.09 PUBLICATION OF NOTICE OF TERMINATION OF DEED BY CREDITORS
For the purposes of paragraph 450D(c) of the Corporations Law, a notice under paragraph 450D(a) of the Corporations Law must be published:
(a) in a national newspaper; or
(b) in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction. PART 5.4 - WINDING UP IN INSOLVENCY REGULATION 5.4.01 5.4.01 APPLICATION TO COURT FOR WINDING UP - PRESCRIBED AGENCY
The Australian Prudential Regulation Authority is a prescribed agency for the purposes of paragraph 459P(1)(g) of the Corporations Law. PART 5.6 - WINDING UP GENERALLY REGULATION 5.6.01 5.6.01 MATTERS FOR ENTRY IN LIQUIDATOR'S OR PROVISIONAL LIQUIDATOR'S BOOKS
For the purposes of section 531 of the Corporations Law, the prescribed matters are those that are required to give a complete and correct record of the liquidator's or provisional liquidator's administration of the company's affairs. REGULATION 5.6.02 5.6.02 INSPECTION OF BOOKS KEPT UNDER SECTION 531 OF THE CORPORATIONS LAW
The liquidator or provisional liquidator must ensure that the books kept under section 531 of the Corporations Law are available at his or her office for inspection in accordance with that section. REGULATION 5.6.06 5.6.06 PAYMENT INTO LIQUIDATOR'S GENERAL ACCOUNT
A liquidator must:
(a) unless otherwise directed by the Court or the committee of inspection - open a bank account to be known as the liquidator's general account; and
(b) pay into that account all money received by the liquidator not later than 7 days after it has been received. REGULATION 5.6.07 5.6.07 DEPOSIT OF SECURITIES
A liquidator must deposit in the bank with which the liquidator's general account was opened:
(a) the bills; and
(b) the notes; and
(c) any other securities;
All bills, notes or other securities deposited in a bank in accordance with regulation 5.6.07 must be delivered out on the signed request of the liquidator. REGULATION 5.6.09 SPECIAL BANK ACCOUNT 5.6.09(1)
The Court may give directions regarding the payment, deposit or custody of:
(a) money; and
(b) bills, notes or other securities;
5.6.09(2)
If an application is made to the Court to authorise the liquidator to make payments into and out of a special bank account, the Court may:
(a) authorise the payments for the time and on the terms as it thinks fit; and
(b) if the Court thinks that the account is no longer required - at any time order it to be closed.
5.6.09(3)
An office copy of an order under subregulation (2) must be served by the liquidator on the bank with which the special bank account has been opened.
REGULATION 5.6.10 PAYMENTS OUT OF LIQUIDATOR'S GENERAL ACCOUNT 5.6.10(1)
All payments out of the liquidator's general account must be made by cheque.
5.6.10(2)
A cheque to which subregulation (1) refers must:
(a) have the name of the company marked or written on the face of it; and
(b) be signed by the liquidator.
REGULATION 5.6.11 APPLICATION 5.6.11(1)
In regulations 5.6.12 to 5.6.57, unless the contrary intention appears, proof of debt or claim includes a statement of particulars of a debt or claim submitted in accordance with regulation 5.6.39, as well as a formal proof of debt or claim.
5.6.11(2)
Subject to subregulation (3), regulations 5.6.12 to 5.6.36A apply to the convening and conduct of, and voting at:
(a) a meeting convened under Part 5.3A, 5.4, 5.4B, 5.5 or 5.6 of the Corporations Law that is:
(b) a meeting of creditors of a company held under a deed of company arrangement.
5.6.11(3)
Regulations 5.6.12 to 5.6.36A do not apply to:
(a) a meeting of the directors of a company; or
(b) a meeting of the members of a company, other than a meeting referred to in paragraph (2)(a); or
(c) if those regulations are inconsistent with a particular requirement of the Corporations Law, these Regulations or the rules - a meeting mentioned in paragraph (2)(a) or (b).
REGULATION 5.6.12 NOTICE OF MEETING 5.6.12(1)
The convenor of a meeting must give notice in writing of the meeting to every person appearing on the company's books or otherwise to be:
(a) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(i) - a member, creditor or contributory of the company; or
(b) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(ii) - a member or creditor of the company; or
(c) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(iii) - a member of the committee of inspection; or
(d) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(iv) - a member of the committee of creditors; or
(e) in the case of a meeting referred to in paragraph 5.6.11(2)(b) - a creditor of the company.
5.6.12(1A)
The notice must be given to a person:
(a) by delivering it personally; or
(b) by sending it to the person by prepaid post; or
(c) if the person has a facsimile transmission number to which notices may be sent to the person - by faxing it to the person at that number; or
(d) if the person has a document exchange number to which notices may be sent to the person - by lodging it with the exchange at, or for delivery to, the person's receiving facilities identified by that number.
5.6.12(1B)
The notice must be given not less than 14 days before the day of the meeting, except:
(a) in the case of a meeting of creditors under section 436E, 439A or 445F, or subsection 449C(4), of the Corporations Law; or
(b) as provided by subregulation (1C) or (1D).
5.6.12(1C)
If a liquidator thinks it appropriate, he or she may convene a meeting of a committee of inspection by giving less than 14 days' notice of the meeting in accordance with subregulations (1) and (1A).
5.6.12(1D)
If the administrator of a company under administration thinks it appropriate, he or she may convene a meeting of a committee of creditors by giving less than 14 days' notice of the meeting in accordance with subregulations (1) and (1A).
5.6.12(2)
The notice referred to in subregulation (1) must be:
(a) if convening a meeting of creditors under subsection 496(1) of the Corporations Law - in accordance with Form 521; or
(aa) if convening a meeting of creditors under section 436E of the Corporations Law - in accordance with Form 529A; or
(b) in any other case - in accordance with Form 529.
5.6.12(3)
A notice of a joint meeting of the creditors and members of a company must be sent to the creditors of the company at the same time as it is sent to the members of the company.
5.6.12(4)
A notice to a creditor must be sent by the person convening the meeting:
(a) to the address given by the creditor in his or her proof of debt or claim; or
(b) if the creditor has not lodged a proof, to the address given in the report on the affairs of the company; or
(c) to any other address known to the person.
5.6.12(5)
A notice of a meeting must be sent by the convenor of the meeting:
(a) to the address given in the company's books as the address of that person; or
(b) to any other address known to the person convening the meeting.
REGULATION 5.6.13 5.6.13 PROOF OF NOTICE
A statement in writing in accordance with Form 530 by:
(a) the person convening a meeting; or
(b) a person acting on his or her behalf;
If telephone conference facilities are expected to be available at the place where the meeting is to be held and the convenor of the meeting considers that, having regard to all the circumstances, it will be appropriate to use those facilities, the notice of the meeting must:
(a) set out the relevant telephone number; and
(b) indicate that a person, or the proxy or attorney of a person, who wishes to participate in the meeting by telephone must give to the convenor, not later than the second-last working day before the day on which the meeting is to be held, a written statement setting out:
(c) indicate that a person, or the proxy or attorney of a person, who participates in the meeting by telephone must pay any costs incurred by the person, proxy or attorney in participating and is not entitled to be reimbursed for those costs from the assets of the company. REGULATION 5.6.13B PERSONS, OR THEIR PROXIES OR ATTORNEYS, PARTICIPATING BY TELEPHONE 5.6.13B(1)
If a person, or a person's proxy or attorney, who wishes to participate in a meeting by means of telephone conference facilities, has given the convenor of the meeting a statement in accordance with regulation 5.6.13A, the convenor must take all reasonable steps to ensure that the person, or the person's proxy or attorney, is contacted before the start of the meeting on the telephone number provided by that person.
5.6.13B(2)
If the person, proxy or attorney is contacted, the convenor must take all reasonable steps to ensure that the person, proxy or attorney can hear the proceedings, and can be heard, by means of those facilities, so that the person, proxy or attorney can participate in the meeting.
5.6.13B(3)
A person who, or whose proxy or attorney, participates in the meeting by telephone in accordance with this regulation is taken to be present in person at the meeting.
REGULATION 5.6.14 TIME AND PLACE OF MEETING 5.6.14(1)
The convenor of a meeting must convene the meeting at the time and place that he or she thinks are most convenient for the majority of persons entitled to receive notice of the meeting.
5.6.14(2)
The convenor must give not less than 7 days' notice of the time and place of the meeting, except in the case of:
(a) a meeting of creditors under section 436E, 439A or 445F, or subsection 449C(4), of the Corporations Law; or
(b) a meeting of a committee of creditors; or
(c) a meeting of a committee of inspection.
REGULATION 5.6.14A 5.6.14A ADVERTISEMENT OF A MEETING
The convenor of a meeting must advertise the meeting in each State, Territory and excluded Territory in which the company carries on business, or has carried on business at any time during the 2 years immediately before the day of the meeting, in a daily newspaper circulating generally in that State, Territory or excluded Territory. REGULATION 5.6.14B 5.6.14B MEETINGS NOT CONVENED IN ACCORDANCE WITH REGULATIONS
A meeting may be held if all the persons who are entitled to be present at, and to vote at, the meeting agree, even if it has not been convened in accordance with these regulations. REGULATION 5.6.15 COSTS OF CONVENING MEETINGS OF CREDITORS ETC 5.6.15(1)
A person (other than a liquidator or administrator of a company under administration or of a deed of company arrangement) at whose request a meeting of creditors or contributories is convened must:
(a) if the liquidator or administrator requires a security for the payment of costs before the meeting is convened - deposit with theliquidator or administrator a sum of money; and
(b) pay the costs of convening the meeting.
5.6.15(2)
The costs of convening a meeting of a committee of inspection or a committee of creditors must be repaid out of the assets of the company to the person causing it to be convened if:
(a) the Court so orders; or
(b) the committee by resolution so directs.
REGULATION 5.6.16 QUORUM 5.6.16(1)
Subject to subregulation (3), a meeting must not act for any purpose except:
(a) the election of a chairperson; and
(b) the proving of debts; and
(c) the adjournment of the meeting;
5.6.16(2)
A quorum consists of:
(a) if the number of persons entitled to vote exceeds 2 - at least 2 of those persons; or
(b) if only one person is, or 2 persons are, entitled to vote - that person or those persons;
5.6.16(3)
A meeting is sufficiently constituted if only one person is present in person at the meeting if the person represents personally or by proxy or otherwise a number of persons sufficient to constitute a quorum.
5.6.16(4)
If within 30 minutes after the time appointed for a meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
(c) to the same day in the next week at the same time and place; or
(d) to the day (not being less than 7 or more than 21 days after the day on which the meeting is adjourned) and at the time and place that the chairperson appoints.
5.6.16(4A)
A meeting convened under section 439A of the Corporations Law must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.
5.6.16(4B)
The convenor of the meeting, or a person nominated by the convenor, must immediately give notice of the adjournment to the persons to whom notice of the meeting must be given under regulation 5.6.12.
5.6.16(4C)
A meeting on the date and at the place to which the meeting is adjourned is not to be taken to be incompetent to act only because of a failure to comply with subregulation (4B) unless the Court, on the application of the convenor of the meeting, or of a creditor or contributory, otherwise declares.
5.6.16(5)
If within 30 minutes after the time appointed for the adjourned meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
REGULATION 5.6.17 CHAIRPERSON 5.6.17(1)
If a meeting is convened by:
(a) a liquidator; or
(b) a provisional liquidator; or
(c) an administrator of the company under administration or of a deed of company arrangement;
5.6.17(2)
In any other case, the persons present and entitled to vote at a meeting must elect one of their number to be chairperson of the meeting.
REGULATION 5.6.18 ADJOURNMENT OF MEETING 5.6.18(1)
The chairperson of a meeting:
(a) if so directed by the meeting - must; or
(b) with the consent of the meeting - may;
5.6.18(1A)
A meeting convened under section 439A of the Corporations Law must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.
5.6.18(2)
An adjourned meeting must be held at the place of the original meeting unless:
(a) the resolution for adjournment specifies another place; or
(b) the Court otherwise orders; or
(c) the liquidator or provisional liquidator, or the administrator of a company under administration or of a deed of company arrangement, otherwise orders; or
(d) the place of the original meeting is unavailable, in which case the chairperson may appoint another place.
REGULATION 5.6.19 VOTING ON RESOLUTIONS 5.6.19(1)
A resolution put to the vote of a meeting must be decided on the voices unless, subject to subregulation (5), a poll is demanded, before or on the declaration of the result of the voices:
(a) by the chairperson; or
(b) by at least 2 persons present in person, by proxy or by attorney and entitled to vote at the meeting; or
(c) by a person present in person, by proxy or by attorney and representing not less than 10% of the total voting rights of all the persons entitled to vote at the meeting; or
(d) in the case of a meeting of members - by a member or members holding shares in the company conferring a right to vote at a meeting, being shares on which the total sum paid up is not less than 10% of the total sum paid up on all the shares conferring that right.
5.6.19(2)
Unless a poll is demanded, the chairperson must declare that a resolution has been:
(a) carried; or
(b) carried unanimously; or
(c) carried by a particular majority; or
(d) lost;
5.6.19(3)
A declaration is conclusive evidence of the result to which it refers, without proof of the number or proportion of the votes recorded in favour of or against the resolution, unless a poll is demanded.
5.6.19(4)
A demand for a poll may be withdrawn.
5.6.19(5)
A vote taken at a joint meeting of creditors and members of a company must be decided on the voices.
5.6.19(6)
If a creditor of a company, by contract, surrenders or limits all or some of his or her rights to vote at a meeting of creditors, then the creditor must not vote except in accordance with the contract and any vote which is not in accordance with the contract will not be counted.
REGULATION 5.6.20 TAKING A POLL 5.6.20(1)
Subject to subregulation (2), if a poll is demanded:
(a) the manner in which it is to be taken; and
(b) the time at which it is to be taken;
5.6.20(2)
A poll demanded on the election of a chairperson or on a question of adjournment must be taken at once.
REGULATION 5.6.21 CARRYING OF RESOLUTIONS AFTER A POLL HAS BEEN DEMANDED AT A MEETING OF CREDITORS 5.6.21(1)
This regulation applies to a poll taken at a meeting of creditors.
5.6.21(2)
A resolution is carried if:
(a) a majority of the creditors voting (whether in person, by attorney or by proxy) vote in favour of the resolution; and
(b) the value of the debts owed by the corporation to those voting in favour of the resolution is more than half the total debts owed to all the creditors voting (whether in person, by proxy or by attorney).
5.6.21(3)
A resolution is not carried if:
(a) a majority of creditors voting (whether in person, by proxy or by attorney) vote against the resolution; and
(b) the value of the debts owed by the corporation to those voting against the resolution is more than half the total debts owed to all creditors voting (whether in person, by proxy or by attorney).
5.6.21(4)
If no result is reached under subregulation (2) or (3), then:
(a) the person presiding at the meeting may exercise a casting vote in favour of the resolution, in which case the resolution is carried; or
(b) the person presiding at the meeting may exercise a casting vote against the resolution, in which case the resolution is not carried.
5.6.21(5)
In this regulation, creditor includes a debenture holder.
REGULATION 5.6.22 CARRYING OF RESOLUTION AFTER A POLL HAS BEEN DEMANDED AT A MEETING OF CONTRIBUTORIES OR MEMBERS 5.6.22(1)
This regulation applies to a poll taken at a meeting of contributories or members.
5.6.22(2)
In counting the majority on a poll demanded on the question that a resolution be carried, regard must be made to:
(a) the number of votes cast for or against the resolution; and
(b) the number of votes to which each member is entitled by the Corporations Law or the articles of the company.
5.6.22(3)
The chairperson of the meeting has a casting vote in addition to his or her deliberative vote.
REGULATION 5.6.23 CREDITORS WHO MAY VOTE 5.6.23(1)
A person is not entitled to vote as a creditor at a meeting of creditors unless:
(a) his or her debt or claim has been admitted wholly or in part by the liquidator or administrator of a company under administration or of a deed of company arrangement; or
(b) he or she has lodged, with the chairperson of the meeting or with the person named in the notice convening the meeting as the person who may receive particulars of the debt or claim:
5.6.23(2)
A creditor must not vote in respect of:
(a) an unliquidated debt; or
(b) a contingent debt; or
(c) an unliquidated or a contingent claim; or
(d) a debt the value of which is not established;
5.6.23(3)
A creditor must not vote in respect of:
(a) a debt or a claim on or secured by:
(b) to treat the liability to him or her on the instrument or security of a prescribed person as a security in his or her hands; or
(c) to estimate its value; and
(d) for the purposes of voting (but not for the purposes of dividend), to deduct it from his or her debt or claim.
5.6.23(4)
For the purposes of paragraph 5.6.23(3)(b), a prescribed person is a person whose liability is referred to in paragraph 5.6.23(3)(a) who:
(a) is liable to the company directly; or
(b) may be liable to the company on the default of another person with respect to the liability;
(c) an insolvent under administration; or
(d) a person against whom a winding up order is in force.
REGULATION 5.6.24 VOTES OF SECURED CREDITORS 5.6.24(1)
For the purposes of voting, a secured creditor must state in the creditor's proof of debt or claim:
(a) the particulars of his or her security; and
(b) the date when it was given; and
(c) the creditor's estimate of the value of the security;
5.6.24(2)
A creditor is entitled to vote only in respect of the balance, if any, due to him or her after deducting the value of his or her security as estimated by him or her in accordance with regulation 5.6.41.
5.6.24(3)
If a secured creditor votes in respect of his or her whole debt or claim, the creditor must be taken to have surrendered his or her security unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.
5.6.24(4)
This regulation does not apply to a meeting of creditors convened under Part 5.3A of the Corporations Law.
REGULATION 5.6.26 ADMISSION AND REJECTION OF PROOFS FOR PURPOSES OF VOTING 5.6.26(1)
The chairperson of a meeting has power to admit or reject a proof of debt or claim for the purposes of voting.
5.6.26(2)
If the chairperson is in doubt whether a proof of debt or claim should be admitted or rejected, he or she must mark that proof as objected to and allow the creditor to vote, subject to the vote being declared invalid if the objection is sustained.
5.6.26(3)
A decision by the chairperson to admit or reject a proof of debt or claim for the purposes of voting may be appealed against to the Court within 14 days after the decision.
REGULATION 5.6.27 MINUTES OF MEETING 5.6.27(1)
The chairperson must, within the period specified in subregulation (6):
(a) cause minutes of the proceedings to be drawn up and entered in a record kept for the purpose; and
(b) sign the minutes after they have been entered in the record.
5.6.27(2)
A record of the persons present in person, by proxy or by attorney at a meeting must be prepared and kept:
(a) if the meeting is of members or contributories - in accordance with Form 531A; and
(b) if the meeting is of creditors or debenture holders - in accordance with Form 531B; and
(c) if the meeting is of a committee of inspection or a committee of creditors - in accordance with Form 531C.
5.6.27(3)
The chairperson at a meeting (other than a meeting of holders of debentures) must lodge a copy of the minutes of the meeting certified by him or her to be a true copy within the period specified in subregulation (6).
5.6.27(3A)
If the chairperson:
(a) dies without having signed the minutes as required by subregulation (1), or without having lodged a certified copy of the minutes as required by subregulation (3); or
(b) becomes incapable, whether through illness or other cause, of signing the minutes as required by subregulation (1), or of lodging a certified copy of the minutes as required by subregulation (3);
5.6.27(4)
The administrator of a company under administration or of a deed of company arrangement, after a meeting of creditors, must cause:
(a) the minutes; and
(b) the record of persons present at the meeting;
5.6.27(5)
The liquidator must cause:
(a) the minutes; and
(b) the record of persons present at the meeting;
5.6.27(6)
For the purposes of subregulations (1) and (3), the specified period is:
(a) for a meeting other than a meeting convened under section 436E or 439A of the Corporations Law - 1 month after the end of the meeting; or
(b) for a meeting convened under section 436E or 439A of the Corporations Law - 14 days after the end of the meeting.
REGULATION 5.6.28 APPOINTMENT OF PROXIES 5.6.28(1)
A person entitled to attend and vote at a meeting may appoint a natural person over the age of 18 years as his or her proxy to attend and vote at the meeting.
5.6.28(2)
Subject to subregulation (3) and to regulation 5.6.30, a proxy appointed under this regulation has the same right to speak and vote at the meeting as the person who appointed the proxy.
5.6.28(3)
A person claiming to be the proxy of a person entitled to attend and vote at a meeting is not entitled to speak or vote as proxy at the meeting (except in relation to the election of a chairperson) unless the instrument of appointment of the proxy, as required by regulation 5.6.29, or a facsimile copy of the instrument, has been lodged with the person named in the notice convening the meeting as the person who is to receive the instrument, or with the chairperson.
REGULATION 5.6.29 FORM OF PROXIES 5.6.29(1)
The appointment of a person as a proxy must be by an instrument in accordance with Form 532.
5.6.29(2)
The person appointing the proxy must sign the instrument of proxy, or, if incapable of writing, attach his or her mark to it.
5.6.29(3)
The proxy of a person who is blind or incapable of writing must not be accepted unless:
(a) the person attaches his or her signature or mark to the instrument appointing the proxy after it has been completed; and
(b) the instrument is read to him or her by a witness to his or her signature or mark (not being the person nominated as proxy) who completes the certificate of witness set out in Form 532.
REGULATION 5.6.30 5.6.30 INSTRUMENTS OF PROXY
An instrument appointing a proxy may specify the manner in which the proxy is to vote on a particular resolution, and the proxy is not entitled to vote on the resolution except as specified in the instrument. REGULATION 5.6.31 5.6.31 PROXY FORMS TO ACCOMPANY NOTICE OF MEETINGS
A person convening a meeting must:
(a) send a form of proxy with each notice of the meeting; and
(b) ensure that neither the name or description of any person is printed or inserted in the body of the form of proxy before it is sent out. REGULATION 5.6.31A PERSON MAY ATTEND AND VOTE BY ATTORNEY 5.6.31A(1)
A person entitled to attend and vote at a meeting may attend and vote at a meeting by his or her attorney.
5.6.31A(2)
A person claiming to be the attorney of a person entitled to attend and vote at a meeting is not entitled to speak or vote as attorney at the meeting (except in relation to the election of a chairperson) unless:
(a) the instrument by which the person was appointed as attorney has been produced to the chairperson; or
(b) the chairperson is otherwise satisfied that the person claiming to be the attorney of the person entitled to vote is the duly authorised attorney of that person.
REGULATION 5.6.32 5.6.32 LIQUIDATOR ETC MAY ACT AS PROXY
A person may appoint:
(a) the liquidator; or
(b) the provisional liquidator; or
(c) the administrator of a company under administration or of a deed of company arrangement; or
(d) the chairperson of a meeting;
Subject to subregulations (2) and (3), a person acting under:
(a) a general proxy; or
(b) a special proxy;
(c) the person; or
(d) the person's partner; or
(e) the person's employer;
5.6.33(2)
If a person holds a special proxy to vote for an application to the Court in favour of his or her appointment as liquidator, he or she may use the proxy and vote accordingly.
5.6.33(3)
If a person holds a special proxy to vote:
(a) in favour of his or her appointment as the administrator of a company under administration or of a deed of company arrangement; or
(b) against the termination of his or her appointment as the administrator of a company under administration or of a deed of company arrangement;
REGULATION 5.6.34 5.6.34 LIQUIDATOR ETC MAY APPOINT DEPUTY
If:
(a) a liquidator; or
(b) an administrator of a company under administration or of a deed of company arrangement; or
(c) a trustee for debenture holders;
(d) use the proxy:
(e) if the person has been appointed by a liquidator - comply with regulation 5.6.33 as if the person were the liquidator. REGULATION 5.6.35 5.6.35 PROXIES APPOINTED BY A CORPORATION
A document:
(a) purporting to be a copy of a resolution under subsection 249(3) of the Corporations Law authorising a person to act as proxy at a meeting; and
(b) that has been verified as a true copy of the resolution or that is under the seal of the corporation;
A person named in a notice convening a meeting as the person who is to receive:
(a) an instrument appointing a proxy; or
(b) any other document relating to the validity of the appointment of a proxy;
A person who, for the purposes of a meeting, lodges a faxed copy of an instrument appointing a proxy or of any document relating to the validity of the appointment, must lodge the original instrument or document in the manner referred to in subregulation 5.6.28(3) within 72 hours after lodging the faxed copy.
5.6.36A(2)
A failure by a person to comply with subregulation (1) will not invalidate the meeting or anything done at the meeting unless the Court, on the application of the convenor of the meeting or of a creditor, member or contributory, otherwise declares.
REGULATION 5.6.37 5.6.37 ESTABLISHING TITLE TO PRIORITY
Regulations 5.6.39 to 5.6.57 (inclusive) apply to the establishment of a title to priority as if it were a debt or claim. REGULATION 5.6.39 NOTICE TO SUBMIT PARTICULARS OF DEBT OR CLAIM 5.6.39(1)
A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which a creditor may submit particulars of his or her debt or claim.
5.6.39(2)
A liquidator must, at least once, give notice in writing of the day fixed under subregulation (1) by advertising the date in a daily newspaper circulating generally in the jurisdiction.
5.6.39(3)
An advertisement mentioned in subregulation (2) must be in accordance with Form 533.
REGULATION 5.6.40 PREPARATION OF A PROOF OF DEBT OR CLAIM 5.6.40(1)
A proof of debt or claim may be prepared by the creditor personally or by a person authorised by the creditor.
5.6.40(2)
A proof prepared by an authorised person must state his or her authority and means of knowledge.
REGULATION 5.6.41 5.6.41 DISCLOSURE OF SECURITY
A proof of debt or claim must state:
(a) whether the creditor is or is not a secured creditor; and
(b) the value and nature of the creditor's security (if any); and
(c) whether the debt is secured wholly or in part. REGULATION 5.6.42 5.6.42 DISCOUNTS
In preparing a proof of debt or claim, a creditor must allow for all discounts for which an allowance would have been made if the company were not being wound up. REGULATION 5.6.43 PERIODICAL PAYMENTS 5.6.43(1)
If rent or any other payment:
(a) falls due at stated times; and
(b) the relevant date is a time other than one of those times;
5.6.43(2)
If the liquidator remains in control of premises rented to a company that is being wound up, subregulation (1) does not affect the right of the landlord of the premises to claim payment of rent by the company or the liquidator during the period of the company's occupation or the liquidator's control.
REGULATION 5.6.43A DEBT OR CLAIM OF UNCERTAIN VALUE - APPEAL TO COURT 5.6.43A(1)
An appeal to the Court under subsection 554A(3) of the Corporations Law must be made:
(a) within 21 days after the person aggrieved becomes aware of the liquidator's estimate or, if the period is extended under subregulation (2), within the extended period; and
(b) in accordance with the rules.
5.6.43A(2)
Upon application by the person aggrieved before or after the end of the period of 21 days referred to in subregulation (1), the Court may extend the period within which an appeal must be made.
REGULATION 5.6.44 5.6.44 DEBT DISCOUNT RATE (CORPORATIONS LAW, S 554B)
The discount by which the amount payable on the future date is to be reduced under section 554B of the Corporations Law is 8% per year calculated from the declaration of the dividend to the time when the debt would have become payable according to the terms on which it was contracted. REGULATION 5.6.45 EMPLOYEES' WAGES 5.6.45(1)
If the employees of a company make demands:
(a) for wages or salaries (whether or not earned wholly or in part by way of commission), whether or not payable to the employees for annual leave or long service leave; or
(b) for retrenchment payments;
5.6.45(2)
A proof of debt or claim prepared and submitted under subregulation (1):
(a) must have annexed to it a schedule setting out the names of the employees and the amounts due to each of them; and
(b) has the same effect as if separate proofs had been prepared and submitted by each of the employees named in the schedule.
REGULATION 5.6.46 5.6.46 PRODUCTION OF BILL OF EXCHANGE AND PROMISSORY NOTE
If a company is, or may become, liable on:
(a) a bill of exchange; or
(b) a promissory note; or
(c) any other negotiable instrument or security;
If a liquidator admits a debt or claim without formal proof, it is not necessary for the liquidator formally to admit the debt or claim in writing.
5.6.47(3)
If a creditor's debt or claim has been admitted without formal proof, a notice of dividend is sufficient notice of the admission.
5.6.47(4)
A liquidator must not reject a debt or claim without:
(a) notifying the creditor of the grounds of the liquidator's rejection; and
(b) requiring that a formal proof of debt or claim be submitted for that debt or claim.
REGULATION 5.6.48 NOTICE TO CREDITORS TO SUBMIT FORMAL PROOF 5.6.48(1)
A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which creditors of the company whose debts or claims have not been admitted are formally to prove their debts or claims.
5.6.48(2)
A liquidator must give notice in writing of the day fixed under subregulation (1):
(a) by advertising the day, in each State, Territory and excluded Territory in which the company carried on business at any time during the 2 years immediately preceding the relevant date, in a daily newspaper circulating generally in the State, Territory or excluded Territory; and
(b) to every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and whose debt or claim has not been admitted.
5.6.48(3)
An advertisement mentioned in subregulation (2) must be in accordance with Form 534.
5.6.48(4)
A creditor of the company who fails to comply with a requirement of a liquidator under subregulation (1) is excluded:
(a) from the benefit of a distribution made before his or her debt or claim is admitted; and
(b) from objecting to that distribution.
REGULATION 5.6.49 FORMAL PROOF OF DEBT OR CLAIM 5.6.49(1)
A debt or claim may be formally proved by delivering or sending by post a formal proof of debt or claim to the liquidator.
5.6.49(2)
A formal proof of debt or claim:
(a) that is prepared and submitted in accordance with regulation 5.6.45 - must be in accordance with Form 536; and
(b) in any other case - must be in accordance with Form 535.
REGULATION 5.6.50 CONTENTS OF FORMAL PROOF OF DEBT OR CLAIM 5.6.50(1)
A formal proof of debt or claim must:
(a) contain detailed particulars of the debt or claim sought to be proved; and
(b) in the case of a debt, include a statement of account; and
(c) specify the vouchers (if any) by which the statement can be substantiated.
5.6.50(2)
The liquidator may at any time call for the production of the vouchers referred to in subregulation (1).
REGULATION 5.6.51 5.6.51 COSTS OF PROOF
A creditor must bear the cost:
(a) of proving his or her debt or claim; or
(b) of amending a proof of debt or claim;
If a liquidator is requested to do so by the person submitting a proof of debt or claim, the liquidator must notify that person of the receipt of the proof and whether or not it has been admitted under regulation 5.6.47. REGULATION 5.6.53 TIME FOR LIQUIDATOR TO DEAL WITH PROOFS 5.6.53(1)
A liquidator must, within:
(a) 28 days after receiving a request in writing from a creditor to do so; or
(b) if ASIC allows - any further period;
(c) admit all or part of the formal proof of debt or claim submitted by the creditor; or
(d) reject all or part of the formal proof of debt or claim; or
(e) require further evidence in support of it.
5.6.53(2)
If the liquidator does not deal with a request under subregulation (1) in accordance with that subregulation, the creditor who submitted the proof may apply to the Court for a decision in respect of it.
5.6.53(3)
If the liquidator gives notice in writing to a creditor that further evidence is required in support of the formal proof of debt or claim submitted by the creditor under subregulation (1), the period referred to in that subregulation is taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her notice.
REGULATION 5.6.54 GROUNDS OF REJECTION AND NOTICE TO CREDITOR 5.6.54(1)
Within 7 days after the liquidator has rejected all or part of a formal proof of debt or claim, the liquidator must:
(a) notify the creditor of the grounds for that rejection in accordance with Form 537; and
(b) give notice to the creditor at the same time:
5.6.54(2)
A person may appeal against the rejection of a formal proof of debt or claim within:
(a) the time specified in the notice of the grounds of rejection; or
(b) if the Court allows - any further period.
5.6.54(3)
The Court may extend the time for filing an appeal under subregulation (2), even if the period specified in the notice has expired.
5.6.54(4)
If the liquidator has admitted a formal proof of debt or claim, the notice of dividend is sufficient notice of the admission.
REGULATION 5.6.55 REVOCATION OR AMENDMENT OF DECISION OF LIQUIDATOR 5.6.55(1)
If the liquidator considers that a proof of debt or claim has been wrongly admitted, the liquidator may:
(a) revoke the decision to admit the proof and reject all of it; or
(b) amend the decision to admit the proof by increasing or reducing the amount of the admitted debt or claim.
5.6.55(2)
If the liquidator considers that all of a proof of debt or claim has been wrongly rejected, the liquidator may:
(a) revoke the decision to reject the proof of debt or claim; and
(b) admit all of the proof or admit part of it and reject part of it.
5.6.55(3)
If the liquidator:
(a) revokes a decision to admit a proof of debt or claim and rejects all of it; or
(b) amends that decision by reducing the amount of the admitted debt or claim;
5.6.55(4)
If the liquidator revokes a decision to admit a proof of debt or claim and rejects all of it, or amends that decision by reducing the amount of the admitted debt or claim, the creditor must at once repay to the liquidator:
(a) the amount received as dividend for the proof; or
(b) the amount received as dividend that exceeds the amount that the creditor would have been entitled to receive if his or her debt or claim had been originally admitted for the reduced amount.
5.6.55(5)
If the liquidator:
(a) revokes a decision to reject all of a proof of debt or claim; or
(b) amends a decision to admit part of a proof of debt or claim;
(c) the dividend; or
(d) an additional amount of dividend;
5.6.55(6)
The creditor is not entitled to disturb the distribution of any dividends declared before the liquidator revoked or amended the decision.
REGULATION 5.6.56 5.6.56 WITHDRAWAL OR VARIATION OF PROOF OF DEBT OR CLAIM
A proof of debt or claim may be withdrawn, reduced or varied by a creditor with the consent ofthe liquidator. REGULATION 5.6.57 5.6.57 OATHS
The liquidator in a winding up by the Court may:
(a) administer an affirmation or oath; and
(b) take an affidavit;
If the liquidator of a company considers it necessary to make calls on or adjust the rights of contributories, the liquidator must, as soon as practicable, make out a provisional list of contributories in accordance with Form 538. REGULATION 5.6.59 TIME AND PLACE FOR SETTLEMENT OF LIST 5.6.59(1)
The liquidator must give to each person included in the list not less than 14 days' notice in writing, in accordance with Form 539, of the time and place appointed to settle the list.
5.6.59(2)
The liquidator or a person acting on his or her behalf must lodge a statement in writing in accordance with Form 540 that notice under subregulation (1) was given to each person included in the provisional list of contributories.
5.6.59(3)
A statement under subregulation (2) is evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.
REGULATION 5.6.60 SETTLEMENT OF LIST OF CONTRIBUTORIES 5.6.60(1)
Before settling the list of contributories, the liquidator must hear and determine any objection by a person to being included in the list.
5.6.60(2)
The liquidator must settle the list of contributories and certify it, in accordance with Form 541, at the time and place specified in the notice given under regulation 5.6.59.
REGULATION 5.6.61 SUPPLEMENTARY LIST 5.6.61(1)
The liquidator may at any time vary or add to the list of contributories by:
(a) making out a provisional supplementary list of contributories in accordance with Form 542; and
(b) settling and certifying that list in accordance with Form 543.
5.6.61(2)
Regulation 5.6.59 and subregulation 5.6.60(1) apply to making out, or settling and certifying, a supplementary list by the liquidator.
REGULATION 5.6.62 NOTICE TO CONTRIBUTORIES 5.6.62(1)
Within 14 days after the settlement of the list, or supplementary list, of contributories, the liquidator must:
(a) notify each person included in the list, or supplementary list, of his or her inclusion; and
(b) at the same time give each person notice that he or she may appeal to the Court against his or her inclusion within:
5.6.62(2)
A person may appeal against his or her inclusion in the list, or supplementary list, of contributories, within:
(a) 21 days after service on the person of the notice under subregulation (1); or
(b) if the Court allows - any further period.
5.6.62(3)
The Court may extend the time for filing an appeal under subregulation (2), even if the period of 21 days specified in subregulation (1) has expired.
5.6.62(4)
A notice for the purposes of subregulation (1) must be in accordance with Form 544.
5.6.62(5)
The liquidator, or a person acting on the liquidator's behalf, must lodge a statement in writing in accordance with Form 545 that notice under subregulation (1) was given to each person placed on the list, or supplementary list, of contributories.
5.6.62(6)
A statement under subregulation (5) is sufficient evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.
REGULATION 5.6.63 5.6.63 DIVIDEND PAYABLE ONLY ON ADMISSION OF A DEBT OR CLAIM
A dividend in the winding up of the affairs of a company may be paid only to a creditor whose debt or claim has been admitted by the liquidator at the date of the distribution of dividends. REGULATION 5.6.64 5.6.64 APPLICATION OF REGULATIONS 5.6.37 TO 5.6.57
For the purposes of regulations 5.6.64 to 5.6.71, regulations 5.6.37 to 5.6.57 apply:
(a) to the formal proof of a debt or claim; and
(b) to the rejection and to an appeal against the rejection of all or part of a formal proof of a debt or claim. REGULATION 5.6.65 LIQUIDATOR TO GIVE NOTICE OF INTENTION TO DECLARE A DIVIDEND 5.6.65(1)
The liquidator must give notice of his or her intention to declare a dividend not more than 2 months before the intended date:
(a) by publishing a notice in the Gazette in accordance with Form 546; and
(b) in writing, in accordance with Form 547 or, for a final dividend, in accordance with Form 548, to any person whose debt or claim has not been admitted and who:
5.6.65(2)
A notice in accordance with subregulation (1) must specify a date, not less than 21 days after the date of the notice, on or before which formal proof, in accordance with Form 535 or 536, of a debt or claim must be submitted to participate in the distribution.
5.6.65(3)
Subject to regulation 5.6.68, a person:
(a) who claims to be a creditor; and
(b) who does not submit a formal proof of a debt or claim on or before the date specified in the notice given under subregulation (1);
REGULATION 5.6.66 TIME ALLOWED FOR DEALING WITH FORMAL PROOF OF DEBT OR CLAIM 5.6.66(1)
If the liquidator has given notice in accordance with subregulation 5.6.65 (1), the liquidator must:
(a) within 14 days after the date shown in the notice; or
(b) within such further period as ASIC allows;
(c) before the end of that period:
(d) give notice of the liquidator's decision to the creditor who submitted the proof.
5.6.66(2)
If, within whichever period is applicable under paragraph (1)(a) or (b) or subregulation (3), the liquidator does not, in writing, deal with a formal proof of debt or claim in accordance with paragraphs (1)(c) and (d), the creditor who submitted the proof may apply to the Court for a decision on it.
5.6.66(3)
If the liquidator gives notice to a creditor that further evidence is required in relation to a formal proof of debt or claim submitted by the creditor:
(a) the liquidator must, in writing, deal with the formal proof of debt or claim in accordance with paragraphs (1)(c) and (d), within whichever period referred to in paragraph (1)(a) or (b) is applicable; and
(b) that period must be taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her request.
REGULATION 5.6.67 DECLARATION AND DISTRIBUTION OF DIVIDEND 5.6.67(1)
The liquidator must, as soon as practicable, declare and distribute a dividend among the creditors whose debts or claims have been admitted.
5.6.67(2)
The liquidator must distribute as dividend all money in hand except enough:
(a) to meet the costs of administration; or
(b) to give effect to the provisions of the Corporations Law.
5.6.67(3)
If the liquidator declares a dividend, he or she must send a notice of that declaration, in accordance with Form 549, to every person entitled to receive payment of the dividend.
REGULATION 5.6.68 RIGHTS OF CREDITOR WHO HAS NOT PROVED DEBT BEFORE DECLARATION OF DIVIDEND 5.6.68(1)
If:
(a) a creditor's debt or claim has not been admitted before the declaration of a dividend; and
(b) the debt or claim is admitted;
5.6.68(2)
A creditor is not entitled to disturb the distribution of a dividend declared before the creditor's debt or claim was admitted.
REGULATION 5.6.69 5.6.69 POSTPONEMENT OF DECLARATION
If the liquidator postpones the declaration of a dividend past the date shown for that purpose in the notice published in the Gazette, the liquidator must publish a further notice in the Gazette, in accordance with Form 546, of the liquidator's intention to declare a dividend. REGULATION 5.6.70 5.6.70 PAYMENT OF DIVIDEND TO A PERSON NAMED
If a person to whom a dividend is payable lodges an authority in accordance with Form 550 with the liquidator, the liquidator must pay the dividend to the person to whom payment is directed by that authority. REGULATION 5.6.70A 5.6.70A PRESCRIBED RATE OF INTEREST ON DEBTS AND CLAIMS FROM RELEVANT DATE TO DATE OF PAYMENT
For the purposes of section 563B of the Corporations Law, the prescribed rate of interest on the amount paid in respect of an admitted debt or claim for the period starting on the relevant date and ending on the day on which the payment is made is 8% per year. REGULATION 5.6.71 DISTRIBUTION OF SURPLUS IN A WINDING UP BY THE COURT 5.6.71(1)
An order in a winding up by the Court authorising the liquidator to distribute any surplus to a person entitled to it must, unless the Court otherwise directs, have annexed to it a schedule in accordance with Form 551.
5.6.71(2)
The liquidator must send to each person to whom any surplus is distributed a notice in accordance with Form 552.
REGULATION 5.6.72 5.6.72 DISTRIBUTION OF SURPLUS AS DIRECTED
If a person who receives a notice of distribution of surplus in accordance with subregulation 5.6.71(2) lodges with the liquidator an authority in accordance with Form 553, the liquidator must distribute that surplus to the person to whom payment is directed by that authority. REGULATION 5.6.74 5.6.74 INTERPRETATION: PRESCRIBED COUNTRIES
For the purposes of the definition of prescribed country in section 580 of the Corporations Law, the following countries are prescribed:
(a) the Bailiwick of Jersey;
(b) Canada;
(c) the Independent State of Papua New Guinea;
(d) Malaysia;
(e) New Zealand;
(f) the Republic of Singapore;
(g) Switzerland;
(h) the United Kingdom;
(i) the United States of America. CHAPTER 6 - TAKEOVERS PART 6.2 - EXCEPTIONS TO THE PROHIBITION REGULATION 6.2.01 6.2.01 PRESCRIBED CIRCUMSTANCES (CORPORATIONS LAW S 611)
For the purposes of item 20 in the table in section 611 of the Corporations Law, the acquisition of a relevant interest in voting shares in a following body corporate is prescribed:
(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown in right of a State or Territory;
(b) a corporation sole;
(c) a society, association or union registered under Co-operation Act, 1923 of New South Wales;
(f) a foreign company or recognised company in respect of which an exemption from compliance with subsection 61(1) of the Co-operation Act 1923 of New South Wales is in force;
(g) a society within the meaning of The Co-operative and Other Societies Act of 1967 or The Co-operative Housing Societies Act of 1958 of Queensland;
(i) an association within the meaning of The Primary Producers' Co-operative Associations Act of 1923 of Queensland;
(j) an association, society, institution or body incorporated under the Associations Incorporation Act 1981 of Queensland;
(k) a body incorporated or deemed to be incorporated by or under a law of South Australia other than the Companies Code (South Australia) or a corresponding previous enactment of South Australia;
(l) a society (other than a society that is a financial institution) within the meaning of section 5 of the Building Societies Act 1976 of Western Australia;
(n) a co-operative company registered under Part VI of the Companies (Co-operative) Act 1943 or a corresponding previous enactment of Western Australia;
(o) a society registered under the Co-operative and Provident Societies Act 1903 of Western Australia;
(p) an association, society, institution or body incorporated under the Associations Incorporation Act 1895 of Western Australia;
(q) a trustee bank registered under the Trustee Banks Act 1984 of Tasmania;
(r) a society (other than a society that is a financial institution) registered under the Co-operative Industrial Societies Act 1928 of Tasmania;
(ra) a society registered under the Co-operative Housing Societies Act 1963 of Tasmania;
(s) an association, society, institution or body incorporated under the Associations Incorporations Act 1964 of Tasmania;
(t) a body corporate created by section 75Q of the Conveyancing and Law of Property Act 1884 of Tasmania;
(u) a society (other than a society that is a financial institution) registered under the Co-operative Societies Act 1939 of the Australian Capital Territory;
(v) an association, society, institution or body incorporated under the Associations Incorporation Act 1953 of the Australian Capital Territory;
(w) a corporation constituted under the Unit Titles Act 1970 of the Australian Capital Territory;
(x) a society registered under the Co-operatives Act 1997 of the Northern Territory. REGULATION 6.2.02 6.2.02 OTHER PRESCRIBED CIRCUMSTANCES (CORPORATIONS LAW S 611)
For the purposes of item 20 in the table in section 611 of the Corporations Law, the acquisition by a person of a relevant interest in voting shares in a body corporate that results from the person holding an office specified in Schedule 3 is prescribed. PART 6.10 - REVIEW AND INTERVENTION REGULATION 6.10.01 6.10.01 APPLICATION FOR REVIEW OF PANEL DECISION (CORPORATIONS LAW S 657EA)
For the purposes of subsection 657EA(3) of the Corporations Law, an application for review of a decision of the Panel must not be made later than 2 business days after the day on which the decision was made. CHAPTER 6D - FUNDRAISING PART 6D.2 - DISCLOSURE TO INVESTORS ABOUT SECURITIES REGULATION 6D.2.01 6D.2.01 EXEMPTION - MEMBER SHARES
Part 6D.2 of the Corporations Law does not apply to an offer of a member share within the meaning given by regulation 12.8.03. REGULATION 6D.2.02 6D.2.02 EXEMPTION - FOREIGN COMPANIES
Part 6D.2 of the Corporations Law does not apply to an offer under a dividend reinvestment plan or bonus share plan of fully-paid shares in a foreign company to an existing holder of shares in the foreign company. CHAPTER 7 - SECURITIES PART 7.1 - INTERPRETATION REGULATION 7.1.01 7.1.01 DEFINITION OF AUTHORISED TRUSTEE CORPORATION
For the purposes of the definition of authorised trustee corporation in section 9 of the Corporations Law, each of the bodies corporate listed in Schedule 9 is declared to be an authorised trustee corporation for the purposes of the provision in which the expression appears. REGULATION 7.1.03 7.1.03 OPTION CONTRACT - PRESCRIBED INDEXES
The following indexes are prescribed for subparagraph (b)(ii) of the definition of option contract in section 9 of the Corporations Law:
(a) S&P/ASX 50 Share Price Index;
(b) S&P/ASX 20 Share Price Index;
(c) S&P/ASX All Industrials Share Price Index;
(d) S&P/ASX All Resources Share Price Index;
(e) S&P/ASX Gold Share Price Index;
(f) Dow Jones Asia-Pacific Extra Liquid Series - Australia Equity Index;
(g) Dow Jones Asia-Pacific Extra Liquid Series - Hong Kong Equity Index;
(h) Dow Jones Asia-Pacific Extra Liquid Series - Japan Equity Index;
(i) Dow Jones Asia-Pacific Extra Liquid Series - Pan Pacific Equity Index;
(j) FT-SE 100 Index;
(k) Nikkei Index;
(l) S&P 500 Composite Stock Price Index;
(m) S&P/ASX 100 Accumulation Index;
(n) All Ordinaries Accumulation Index;
(o) S&P/ASX 100 Share Price Index;
(p) S&P/ASX 200 Share Price Index;
(q) S&P/ASX 300 Share Price Index;
(r) S&P/ASX Small Ordinaries Share Price Index;
(s) S&P/ASX Small Ordinaries Accumulation Index;
(t) Share Price Index. PART 7.2 - SECURITIES EXCHANGES REGULATION 7.2.01 SECURITIES EXCHANGES - INFORMATION EXEMPT FROM LODGEMENT REQUIREMENTS 7.2.01(1)
For the purposes of subsection 776(2C) of the Corporations Law, subsection 776(2B) of the Corporations Law does not apply to the following information:
(a) a Stock Exchange Automated Trading System notification message;
(b) an Australian Stock Exchange voiceline announcement.
7.2.01(2)
In this regulation:
REGULATION 7.2.02 7.2.02 COMPLIANCE MONITORING - SECTION 770A STOCK MARKETS
For the purposes of paragraph 770A(2)(b) of the Corporations Law, a person or partnership is not qualified to monitor compliance with the business rules of the responsible entity of a registered scheme in the conduct of a stock market that is approved by the Minister under subsection 770A(1) of that Law, if:
(a) that person or partnership is an associate of the responsible entity; and
(b) the person is not registered as an auditor under Part 9.2 of the Law; and
(c) no member of the partnership is so registered. PART 7.3 - PARTICIPANTS IN THE SECURITIES INDUSTRY REGULATION 7.3.01 7.3.01 LICENSEE TO NOTIFY EVENTS ADVERSELY AFFECTING FINANCIAL POSITION
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to a condition that if any event occurs that may adversely affect the financial position of the holder of a licence, the holder must, not later than the day after the day on which he or she becomes aware of it, give notice in writing to ASIC setting out particulars of the event. REGULATION 7.3.01A EXEMPTIONS FROM CHAPTER 7 OF THE CORPORATIONS LAW 7.3.01A(1)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to a dealing in securities by the Exchange or a subsidiary of the Exchange for the purpose of, or in connection with, providing a facility:
(a) under the Exchange's transfer delivery service provisions as defined in subsection 920(1) of the Corporations Law; or
(b) for the provision of a guaranteed securities loan as defined in subsection 954B(1) of the Corporations Law; or
(c) under the provisions of business rules of a kind referred to in paragraphs 954N(1)(a) and (b) or 954P(1)(a) and (b) of the Corporations Law.
7.3.01A(2)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to an act carried out by:
(a) an employee of the Exchange or a subsidiary of the Exchange; or
(b) a person acting for the Exchange or a subsidiary of the Exchange; or
(c) a person acting under an agreement with the Exchange or a subsidiary of the Exchange;
REGULATION 7.3.01B EXEMPTIONS FROM CHAPTER 7 OF THE CORPORATIONS LAW - DEALINGS BY THE EXCHANGE OR OCH 7.3.01B(1)
In this regulation:
7.3.01B(2)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to a dealing in securities or in a relevant agreement if that dealing is effected by the Exchange or OCH for the purposes of, or in connection with, the establishment, enforcement, administration or observance of the business rules of the Exchange that relate to securities or relevant agreements registered or to be registered with OCH.
7.3.01B(3)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to an act carried out by:
(a) an employee of the Exchange or OCH; or
(b) a person acting for the Exchange or OCH; or
(c) a person acting under an agreement with the Exchange or OCH;
REGULATION 7.3.02 CONDITIONS TO WHICH LICENCES ARE SUBJECT 7.3.02(1)
For the purposes of section 786 of the Corporations Law, a licence is subject to the conditions that the holder of the licence must ensure that each representative of the holder:
(a) is adequately supervised in the performance of the duties that he or she is required by the holder to perform; and
(b) is sufficiently trained in relation to those duties before acting as a representative; and
(c) keeps up to date in relation to those duties by means of continuing training programs.
7.3.02(2)
ASIC may, by notice in writing, require a holder of a licence to satisfy it that the conditions referred to in subregulation (1) have been met by the holder.
REGULATION 7.3.02B LICENCE CONDITIONS - INVESTMENT ADVICE TO RETAIL INVESTORS 7.3.02B(1)
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to the condition that, if the licensee gives investment advice to a retail investor, the licensee must meet the requirements of subregulations (2), (4) and (5).
7.3.02B(2)
Subject to subregulation (3), the licensee must give to a retail investor an Advisory Services Guide:
(a) in the case of investment advice given in person - not later than when that advice is given; or
(b) in the case of an execution-related telephone advice - at the earliest practicable opportunity after the licensee (or a representative of the licensee) gives the advice but not later than 3 days after the trading following the advice; or
(c) in any other case - at the earliest practicable opportunity after the licensee (or a representative of the licensee) gives investment advice.
7.3.02B(3)
Subregulation (2) does not apply if:
(a) the licensee has given an Advisory Services Guide to the retail investor in relation to investment advice previously given to the investor; or
(b) the investment advice given is general securities advice given, in accordance with regulation 7.3.02D, to persons generally in a non-personal context (for example, at an investment seminar, by means of brochures or newsletters or through advertisements).
7.3.02B(4)
The licensee must be a member of an external complaints resolution scheme approved by the Commission.
7.3.02B(5)
The licensee must have in place at all times, to deal with complaints from retail investors, internal complaints-handling procedures that are in accordance with Australian Standard AS4269 1995, Complaints Handling, as in force on 1 October 1998.
7.3.02B(6)
For subregulation (2), the Advisory Services Guide must contain information that a retail investor reasonably requires to:
(a) clearly understand the nature of the investment advice service being offered; and
(b) compare the services offered by the licensee with similar services offered by other licensees; and
(c) clearly identify:
(d) clearly understand the nature of, and method of calculating, in relation to the service:
(e) clearly understand the basic rights of the investor in relation to the licensee, and any representative of the licensee, giving investment advice to the retail investor; and
(f) use available complaints procedures if dissatisfied with a service received from the licensee.
7.3.02B(7)
If a change occurs in relation to an item of information mentioned in subregulation (6) and the relationship between the licensee and the retail investor to whom the licensee has given an Advisory Services Guide under subregulation (2) is continuing, or the licensee has a reasonable expectation that the retail investor will seek further investment advice from the licensee, the licensee must give, at the earliest practicable opportunity after the change, an updated Advisory Services Guide to the retail investor.
7.3.02B(8)
Subject to subregulation (9), a person is not a retail investor if:
(a) the person is the holder of a dealers licence; or
(b) the person is the holder of an investment advisers licence; or
(c) the person is an exempt dealer; or
(d) the person is an exempt investment adviser; or
(e) the person is a body corporate registered under the Life Insurance Act 1995; or
(f) the person is an authorised deposit-taking institution as defined in section 5 of the Banking Act 1959; or
(g) the person is a bank constituted by or under a law of a State or Territory; or
(h) the person is the trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust within the meaning of the Superannuation Industry (Supervision) Act 1993 that has more than 100 members; or
(i) the person is the responsible entity or other operator of a managed investment scheme and:
(j) the person is the responsible entity or other operator of a managed investment scheme that has:
(m) the person is an exempt public authority; or
(n) the person is an investment company as defined in subregulation 7.3.12(3); or
(o) the person is a listed company; or
(p) the person is a company (other than a company mentioned in paragraph (n) or (o)) that is a large proprietary company:
(q) the person is a related body corporate of a listed company; or
(qa) the person is an unlisted public company that satisfies at least 2 of the following subparagraphs:
(r) the person is a foreign entity that, if established or incorporated in Australia, would be a person described in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) or (qa).
7.3.02B(9)
A person mentioned in paragraph (8)(a), (b), (c), (d) or (q) is a retail investor in relation to an investment advice given to that person by the licensee if:
(a) the person has made a request, in writing, to the licensee to be treated as a retail investor in relation to the investment advice; and
(b) the person has not revoked the request.
7.3.02B(10)
In this regulation:
(a) that is given by a stockbroker or other dealer as an integral part of the execution of a transfer of, or order for, those securities; and
(b) for which no fee is charged in addition to the commission for the execution of the transfer or order.
(a) a person other than a person that, under subregulation (8), is not a retail investor; or
(b) a person who is a retail investor under subregulation (9).
REGULATION 7.3.02C LICENCE CONDITIONS - PERSONAL SECURITIES RECOMMENDATIONS TO RETAIL INVESTORS 7.3.02C(1)
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to the condition that, if the licensee gives a personal securities recommendation to a retail investor and the retail investor fails to give to the licensee relevant personal information, the licensee must give to the investor a clear warning that:
(a) states that the licensee has not been able to undertake a comprehensive analysis of the investment objectives, financial situation and particular needs of the investor; and
(b) sets out the limitations on the appropriateness of the recommendation because of the lack of relevant personal information about the investor; and
(c) states that the investor needs to consider whether the recommendation is appropriate in light of the particular investment needs, objectives and financial circumstances of the investor.
7.3.02C(2)
In this regulation:
REGULATION 7.3.02D LICENCE CONDITIONS - GENERAL SECURITIES ADVICE TO INVESTOR OR PROSPECTIVE INVESTOR 7.3.02D(1)
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to the condition that, if the licensee gives general securities advice, the licensee must clearly warn a retail investor or prospective retail investor, at the time when the licensee gives the advice, that:
(a) in preparing the advice, the licensee did not take into account the investment objectives, financial situation and particular needs of any particular person; and
(b) before making an investment decision on the basis of that advice, the retail investor or prospective retail investor needs to consider, with or without the assistance of a securities adviser, whether the advice is appropriate in light of the particular investment needs, objectives and financial circumstances of the retail investor or prospective retail investor.
7.3.02D(2)
If general securities advice is given in a document, the warnings mentioned in paragraphs (1)(a) and (b) must be contained in that document.
7.3.02D(3)
In this regulation:
REGULATION 7.3.03 7.3.03 AMOUNT OF SECURITY
For the purposes of paragraph 786(2)(d) of the Corporations Law, the prescribed amount is $20,000. REGULATION 7.3.04 APPLICATION OF SECURITY UNDER SUBSECTION 786(9) OF THE CORPORATIONS LAW 7.3.04(1)
For the purposes of subsection 786(9) of the Corporations Law, a security lodged with ASIC in relation to a licence may be applied by ASIC in accordance with this regulation to compensate a person who has suffered pecuniary loss due to the failure of the licensee, or an agent or employee of the licensee, to carry on businessunder the licence adequately and properly.
7.3.04(2)
Subregulation (1) applies whether or not the licensee, agent or employee has been convicted of an offence in relation to the failure.
7.3.04(3)
A security must not be applied to compensate a person unless the claim for compensation is lodged in writing by, or on behalf of, that person no later than:
(a) if ASIC has, by notice published in accordance with subregulation (4), advertised for claims for compensation to be paid out of the security and specified a date not less than 3 months after publication of the notice - that date; or
(b) if no notice is published and paragraph (c) does not apply - 6 months after the person becomes aware that he or she has suffered the pecuniary loss; or
(c) a later date ASIC allows in a particular case.
7.3.04(4)
A notice mentioned in paragraph (3)(a) must be published:
(a) in a daily newspaper of general circulation in this jurisdiction; and
(b) if ASIC so requires - in a newspaper circulating generally in a State or Territory where the holder of the licence, or the agent or employee, carries on business under the licence.
7.3.04(5)
ASIC must give the licensee an opportunity of being heard before deciding whether a person is to be compensated under subregulation (1).
7.3.04(6)
For the purposes of this regulation, the amount of pecuniary loss that a person may claim is the amount worked out using the formula:
(a) the reasonable costs of; and
(b) disbursements of a reasonable amount that are incidental to;
7.3.04(7)
A security that is applied by ASIC must be applied:
(a) if the total of the admitted claims does not exceed the amount of the security - in the payment in full of those amounts; or
(b) if that total exceeds the amount of the security - in the payment of a proportion of the amount at which each of those claims was admitted.
7.3.04(8)
The proportion mentioned in paragraph (7)(b) must be the same as the proportion that the amount of the security bears to the total of the admitted claims.
REGULATION 7.3.05 7.3.05 PRESCRIBED FORM: SECTION 790 OF THE LAW
For the purposes of section 790 of the Corporations Law, particulars of a change in the matters referred to in paragraph 789(3)(b) of the Law must be lodged:
(a) by the person who becomes a director or secretary of the body corporate in accordance with Form 704; and
(b) by the holder of the licence in accordance with Form 304. REGULATION 7.3.06 DISCHARGE, RETURN OR RELEASE OF SECURITY 7.3.06(1)
ASIC may:
(a) discharge in whole or part a security maintained by it under a condition of a licence; or
(b) return the security in whole or part; or
(c) release, in whole or in part, any surety who provided the security;
(d) a person ceases to hold the licence; or
(e) the potential liability of the licence holder is reduced; or
(f) it is reasonable in the circumstances for the amount of the security to be reduced; or
(g) it is reasonable in the circumstances for the security not to be maintained;
7.3.06(2)
ASIC must not exercise a power under subregulation (1) until 3 months after the date on which a notice in accordance with Form 702 is published:
(a) in a daily newspaper of general circulation in this jurisdiction; and
(b) if ASIC so requires - in a newspaper circulating generally in a State or Territory where the holder of the licence carried on business under the licence;
7.3.06(3)
A notice must be published by, and at the expense of, the person making the application.
7.3.06(4)
If a claim is made in relation to a security:
(a) in response to a notice under subregulation (2); or
(b) for compensation under regulation 7.3.04;
(c) may; and
(d) on the written application of any person who holds, or held, the licence, must;
7.3.06(5)
If a surety's liability under a security maintained with ASIC under a condition of a licence is substantially in excess of the surety's liability under all claims referred to in subregulation (4), ASIC may:
(a) direct that the instrument under which the surety's liability arises be varied; or
(b) return to the surety the proportion of the security that exceeds the surety's liability under all claims referred to in subregulation (4); or
(c) refer any matter in dispute to a court, or an arbitrator, for determination; or
(d) release the surety wholly or in part.
REGULATION 7.3.07 EFFECT OF DISCHARGE OF SECURITY 7.3.07(1)
If a security is discharged, wholly or in part, by ASIC:
(a) a claim does not lie against the surety in relation to the obligation to which the security relates to the extent that he or she has been released from that obligation; and
(b) the surety must return to the holder of the licence on whose behalf the security was given:
7.3.07(2)
If ASIC directs that a security be discharged in part:
(a) it may state that the surety is not released from the obligations relating to those claims that ASIC specifies; and
(b) the surety remains subject to any claims that are so specified.
REGULATION 7.3.08 7.3.08 REGISTER OF HOLDERS OF PROPER AUTHORITIES: PRESCRIBED INFORMATION
For the purposes of paragraph 810(3)(e) of the Corporations Law, the date of birth of each person who holds a proper authority from the licensee is prescribed information. REGULATION 7.3.09 7.3.09 LICENSEES TO NOTIFY COMMISSION OF LOCATION AND CONTENTS OF REGISTERS
Subsections 810(4), (5) and (6) and 811(4), (5), (6) and (7) of the Corporations Law do not have effect in relation to a person:
(a) who is or may be a dealer or investment adviser only because of his or her doing anything that is incidental to another business; and
(b) who has established a register under section 810 of the Law of more than 100 persons;
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to:
(a) the acquisition or disposal of, or an agreement to acquire or dispose of, securities or documents of title to securities; or
(b) a mortgage or charge in respect of securities or documents of title to securities;
(c) by a person whose ordinary business includes the lending of money; and
(d) by way of security, principally for the purposes of a transaction entered into in the ordinary course of business in lending money or providing credit. REGULATION 7.3.10A 7.3.10A EXEMPTION FROM LICENSING - CERTAIN DEALINGS
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to a dealing in or with an interest in a superannuation scheme if:
(a) the interest in superannuation scheme is wholly underwritten by 1, or more than 1, life policy within the meaning of the Life Insurance Act 1995; and
(b) the dealing involves a life company within the meaning of that Act, or a life insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984, or an employee, agent or sub-agent of the life company or life insurance broker. REGULATION 7.3.11 EXEMPTION FROM LICENSING - MANAGED INVESTMENT SCHEMES 7.3.11(1)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not apply to a dealing in or with an interest in a managed investment scheme:
(a) that is not, and is not required under section 601ED of the Law to be, registered under section 601EB of the Law; or
(b) in relation to which the person operating the scheme is exempt from subsection 601ED(5) of the Law.
7.3.11(2)
However, subregulation (1) does not apply to a dealing in or with an interest in:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) a pooled superannuation trust;
7.3.11(2A)
Also, subregulation (1) does not apply to a dealing in, or with an interest in, a friendly society benefit fund.
7.3.11(3)
Part 7.7 of the Corporations Law does not apply to a body corporate in relation to an interest in a registered scheme made available by the body corporate in accordance with Chapter 5C and Chapter 6D of the Law.
REGULATION 7.3.12 EXEMPTION FROM LICENSING - DEALINGS IN OWN SECURITIES AND SUB-UNDERWRITING 7.3.12(1)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Lawdo not have effect in relation to:
(a) a dealing entered into between a person and:
(b) a transaction entered into by a sub-underwriter of an issue of securities except an interest in a managed investment scheme, that relates only to the sub-underwriting of the issue.
7.3.12(2)
Paragraph (1)(a) does not apply to a dealing entered into between a person and an investment company in securities of that company except an interest in a managed investment scheme.
7.3.12(3)
In subregulation (2), investment company means a body corporate or an unincorporated body that:
(a) carries on a business of investment in securities, interests in land or other investments; and
(b) for those purposes invests funds subscribed:
REGULATION 7.3.13 EXEMPTIONS FROM LICENSING - SUPERANNUATION SCHEMES, LIFE OFFICES AND FRIENDLY SOCIETIES 7.3.13(1)
Divisions 1 and 3 of Part 7.3 and Parts 7.5, 7.6 and 7.7 of the Corporations Law do not have effect in relation to a dealer who:
(a) is a trustee for a superannuation scheme; and
(b) deals in securities only in relation to the management and administration of the superannuation scheme.
7.3.13(2)
Parts 7.5 and 7.6 of the Corporations Law do not have effect in relation to a body corporate (except a friendly society) registered under the Life Insurance Act 1995 that only deals in securities in relation to the carrying on of the life insurance business.
7.3.13(3)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to any act done by a person:
(a) employed by; or
(b) acting for or by arrangement with;
(c) is so employed; or
(d) so acts;
7.3.13(4)
Divisions 1 and 3 of Part 7.3, and Parts 7.5, 7.6 and 7.7, of the Corporations Law do not have effect in relation to a friendly society that only deals in interests in the friendly society benefit fund.
REGULATION 7.3.13A ACTION BY REPRESENTATIVES OF CERTAIN FRIENDLY SOCIETIES 7.3.13A(1)
In this regulation:
7.3.13A(2)
This regulation applies in relation to a friendly society that only deals in, or with interests in, a benefit fund of the friendly society.
7.3.13A(3)
A person must not represent a friendly society in relation to dealing in, or with interests in, the friendly society benefit fund unless the person is an individual who:
(a) is authorised, in the approved form, to deal in the fund, or with the interests, as a representative of the society; or
(b) was, immediately before the transfer date, authorised to deal in the fund, or with the interests, as a representative of the society under:
7.3.13A(4)
However, the person may represent the friendly society if, at the time of the offence, the person reasonably believed that he or she was authorised as a representative of the friendly society.
7.3.13A(5)
For subregulation (3), the friendly society must not authorise a person as a representative of the society if a banning order prohibits the person, except as permitted by the order, from acting as a representative of the society.
7.3.13A(6)
A person must not represent a friendly society in relation to dealing in, or with interests in, the friendly society benefit fund if a banning order prohibits the person, except as permitted by the order, from acting as a representative of the society.
REGULATION 7.3.13B 7.3.13B FRIENDLY SOCIETY DEALING IN INTERESTS IN FRIENDLY SOCIETY BENEFIT FUND
A friendly society in relation to which regulation 7.3.13A applies is taken to be a licensee to which the following provisions of the Corporations Law apply:
(a) sections 810, 811, 812 and 815;
(b) Division 4 of Part 7.3;
(c) Division 3 of Part 7.4. REGULATION 7.3.13C 7.3.13C AUTHORISATION TO DEAL IN INTERESTS IN CERTAIN FRIENDLY SOCIETIES
If a person was, immediately before the transfer date, authorised by a friendly society as described in subregulation 7.3.13A(3), the authorisation is taken to be a proper authority to which the following provisions of the Corporations Law apply:
(a) section 814;
(b) subsections 816(1) and (3). REGULATION 7.3.14 EXEMPTION FROM LICENSING ETC - AUSTRALIAN ADIS 7.3.14(1)
Sections 780 and 842 and Parts 7.5, 7.6 and 7.7 of the Corporations Law do not have effect in relation to an Australian ADI only because, in relation to the carrying on of the business of banking, the Australian ADI:
(a) deals in securities issued, or proposed to be issued, by a government, a local government authority or a public authority; or
(b) accepts appointment as, or acts as, banker in respect of an issue of securities.
7.3.14(2)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to any act done by a person who is employed by an Australian ADI that deals in securities only in connection with the business of banking if the act is an act done on behalf of the Australian ADI in relation to:
(a) a dealing by the Australian ADI in securities issued or proposed to be issued by a government, local government authority or public authority; or
(b) the appointment of the Australian ADI as a banker in respect of an issue of securities.
REGULATION 7.3.14A 7.3.14A EXEMPTIONS FROM LICENSING
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7, and section 842, of the Corporations Law do not have effect in relation to a friendly society benefit fund that is:
(a) a health benefits fund that is conducted by a registered organisation within the meaning of the National Health Act 1953; or
(b) a superannuation entity within the meaning of the Superannuation Industry (Supervision) Act 1993. REGULATION 7.3.15 7.3.15 SALE OF FORFEITED SHARES EXEMPT (ACT, S 30)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to the sale or purchase of any share in a no liability company registered under that Law or a corresponding law if the share is offered for sale by public auction under section 254Q of the Law or a corresponding law by a person who is the holder of a licence under a law relating to the licensing of auctioneers. REGULATION 7.3.16 EXEMPTION FROM CHAPTER 7 - TRANSACTIONS IN OPTION CONTRACTS ON THE NZFOE MARKET (ACT, S 30) 7.3.16(1)
In this regulation:
(a) offers to sell, purchase or exchange option contracts are regularly made or accepted; or
(b) offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange option contracts; or
(c) information is regularly provided about the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange option contracts.
7.3.16(2)
Chapter 7 of the Corporations Law does not have effect in relation to a transaction involving an option contract on the NZFOE market, subject to the following conditions:
(a) Chapter 8 of the Corporations Law (other than Part 8.6) applies to the transaction as if the option contract were an eligible exchange-traded option;
(b) a person involved in the transaction is subject to the prohibitions and obligations set out in Chapter 8 of the Corporations Law (other than Part 8.6) as if the option contract were an eligible exchange-traded option;
(c) a person involved in the transaction, who contravenes a provision of Chapter 8 of the Corporations Law (other than Part 8.6), is subject to the penalties set out in Division 2 of Part 9.4 of the Corporations Law, or any other relevant provision of the Corporations Law, as if the option contract were an eligible exchange-traded option;
(d) NZFOE is subject to the prohibitions and obligations set out in Chapter 8 of the Corporations Law (other than Part 8.6) as if the option contract were an eligible exchange-traded option;
(e) if NZFOE contravenes a provision of Chapter 8 of the Corporations Law (other than Part 8.6), NZFOE is subject to the penalties set out in Division 2 of Part 9.4 of the Corporations Law, or any other relevant provision of the Corporations Law, as if the option contract were an eligible exchange-traded option;
(f) ASIC has the same powers in relation to the NZFOE market as it has under Chapter 8 of the Corporations Law (other than Part 8.6) in relation to a futures market of a futures exchange, except that ASIC may not give a direction to NZFOE under paragraph 1138(1)(d), (e) or (f) of the Corporations Law;
(g) ASIC has the same powers in relation to the transaction, and a person involved in the transaction, as it has under Chapter 8 of the Corporations Law (other than Part 8.6) as if the option contract were an eligible exchange-traded option;
(h) the NZFOE market must at all times be conducted in conjunction with the exempt futures market as if the markets were a single market;
(i) NZFOE is subject to:
REGULATION 7.3.17 APPLICATION OF CERTAIN PROVISIONS OF CORPORATIONS LAW TO SECTION 770A STOCK MARKETS 7.3.17(1)
In this regulation,
7.3.17(2)
Sections 774 (other than subsection 774(4)), 775, 776, 777 and 1114 of the Corporations Law have effect, in respect of a section 770A stock market, as if a reference in those sections to a securities exchange were a reference to a responsible entity of a registered scheme in relation to unquoted interests in that scheme.
7.3.17(3)
Subsection 774(5) of the Corporations Law has effect, in relation to a section 770A stock market, as if:
(a) a reference in that subsection to the Minister were a reference to ASIC; and
(b) the words "under subsection (4)" in that subsection were omitted.
REGULATION 7.3.18 7.3.18 SUPERVISORS HAVE QUALIFIED PRIVILEGE IN CERTAIN CIRCUMSTANCES
For the purposes of section 770C of the Corporations Law, a supervisor within the meaning of paragraph 770A(2)(b) of that Law has qualified privilege in respect of:
(a) a statement made by that supervisor, orally or in writing, in the course of the performance by the supervisor of his or her duties under the business rules of the responsible entity; and
(b) notification by the supervisor under paragraph 770A(3)(c) of the Law. PART 7.4 - CONDUCT OF SECURITIES BUSINESS REGULATION 7.4.01 7.4.01 EXEMPT DEALER
Section 842 of the Corporations Law does not have effect in relation to the sale or purchase of securities by a dealer as agent for another person through a member of a securities exchange in Australia if the dealer, on receipt of the contract note, forthwith gives the contract note or a copy to the other person. REGULATION 7.4.01A EXEMPTION FROM CERTAIN REQUIREMENTS IN RELATION TO CONTRACT NOTES 7.4.01A(1)
In this regulation:
7.4.01A(2)
Section 842 of the Corporations Law has effect in relation to a dealer to the extent that the requirements of the section are subject to this regulation.
Sending a contract note electronically
7.4.01A(3)
The requirement of subsection 842(2) of the Corporations Law that, in respect of a transaction of sale or purchase of securities, a dealer immediately give a contract note that complies with subsection 842(3) of the Law to the person for whom the dealer entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the client has given to the dealer prior authorisation to send any contract note electronically to the client in relation to that transaction or all transactions (or all transactions included in a class in which that transaction is included) entered into for the client by the dealer;
(b) the dealer sends the contract note electronically to the client in accordance with the authorisation.
Giving a single contract note for multiple transactions
7.4.01A(4)
The requirement of subsection 842(2) of the Corporations Law that, in respect of a transaction of sale or purchase of securities, a dealer immediately give a contract note that complies with subsection 842(3) of the Law to the person for whom the dealer entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the dealer is a member of a securities exchange;
(b) the transaction takes place in accordance with the business rules of the securities exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with the dealer;
(d) the client has given to the dealer, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with the dealer by the client, prior authorisation to give to the client a single contract note in respect of a series of transactions carried out under the order instead of an individual contract note in respect of each transaction in the series;
(e) the dealer gives to the client a single contract note in respect of a series of transactions in which the transaction is included that:
(f) the contract note is given:
Price averaging
7.4.01A(5)
The requirement of paragraph 842(3)(g) of the Corporations Law that a contract note in respect of a transaction of sale or purchase of securities given to a person (the client ) by a dealer specify the price per unit of the securities to which the transaction relates is satisfied if the following conditions are satisfied:
(a) the dealer is a member of a securities exchange;
(b) the transaction takes place in accordance with the business rules of the securities exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with the dealer;
(d) the client has, in accordance with the business rules of the securities exchange, given to the dealer, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with the dealer by the client, prior authorisation to give to the client a single contract note in respect of the series of transactions that specifies the average price per unit of securities sold or purchased in the series of transactions, instead of an individual contract note in respect of each transaction in the series that specifies the price per unit of the securities bought or sold in the transaction to which each contract note relates;
(e) the dealer gives the contract note to the client in accordance with the authorisation;
(f) unless otherwise provided by the business rules of the securities exchange, the dealer, if requested to do so by the client, also gives to the client a document that specifies the price per unit of the securities sold or bought in each transaction in the series.
Authorisations
7.4.01A(6)
For this regulation, an authorisation given by a person to a dealer:
(a) must be given orally, or in writing, by the person; and
(b) is effective until it is revoked, either orally or in writing, by the person.
7.4.01A(7)
If a person gives an oral authorisation to a dealer, or revokes an authorisation orally, the dealer must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the person.
REGULATION 7.4.02 7.4.02 EXEMPT SECURITIES AND INTERESTS
Sections 842, 843 and 872 of the Corporations Law do not apply to the sale or purchase of securities, or interests in registered schemes, by a body corporate by which the securities or interests were made available in accordance with Chapter 5C and Chapter 6D of the Law. REGULATION 7.4.03 7.4.03 TRANSACTIONS IN PRESCRIBED CIRCUMSTANCES
For the purposes of subsection 842(6) of the Corporations Law, a transaction takes place in prescribed circumstances if the transaction takes place at an official meeting of a securities exchange in Australia between persons who are members of a securities exchange in Australia. REGULATION 7.4.04 EXEMPTED TRANSACTION 7.4.04(1)
In this regulation:
7.4.04(2)
Section 843 of the Corporations Law does not apply in relation to a transaction entered into by a dealer with a registered trader for the acquisition or disposal of an option, if:
(a) the registered trader is a person associated with the dealer only because the dealer is that registered trader's clearing member and the transaction is cleared by the registered trader through the dealer in accordance with the Business Rules; and
(b) the registered trader is not employed by the dealer or by the firm in which the dealer is a partner.
REGULATION 7.4.04A CHARGING BROKERAGE ON PRINCIPAL TRANSACTIONS 7.4.04A(1)
Subsection 843(4) of the Corporations Law has effect in relation to a dealer to the extent that it does not prevent a dealer who is a member of a securities exchange from charging a nondealer brokerage, commission or any other fee in respect of a transaction if the non-dealer has given to the dealer prior authorisation to so charge the non-dealer in respect of any transaction entered into by the dealer with the non-dealer.
7.4.04A(2)
For this regulation, an authorisation given to a dealer by a nondealer:
(a) must be given orally, or in writing, by the non-dealer; and
(b) is effective until it is revoked, either orally or in writing, by the non-dealer.
7.4.04A(3)
If a non-dealer gives an oral authorisation to a dealer, or revokes an authorisation orally, the dealer must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the non-dealer.
REGULATION 7.4.05 7.4.05 EXEMPTION FROM SUBSECTION 844(2) OF THE CORPORATIONS LAW
Subsection 844(2) of the Corporations Law does not have effect in relation to transactions entered into by a member of a stock exchange in accordance with the business rules of that stock exchange. REGULATION 7.4.06 7.4.06 DEALINGS BY EMPLOYEES OF HOLDERS OF LICENCES
Subsection 845(3) of the Corporations Law does not have effect in relation to:
(a) a bank; or
(b) a body corporate that gives credit in good faith to a person (not being a director of the body corporate) employed by the body corporate, or by another body corporate that is related to the first body corporate, to enable the person to purchase fully paid shares in the body corporate to be held in beneficial ownership by the person. REGULATION 7.4.07 7.4.07 EXEMPTION OF SALE OF EXCHANGE TRADED OPTIONS
Section 846 of the Corporations Law does not have effect in relation to a sale of securities that is done by the giving or writing of an option that is registered with Options Clearing House Proprietary Limited, or the Sydney Futures Exchange Clearing House Pty Limited. REGULATION 7.4.08 EXEMPTION OF SHORT SALE COVERED BY EXCHANGE TRADED OPTIONS 7.4.08(1)
In this regulation:
7.4.08(2)
Section 846 of the Corporations Law does not apply in relation to a sale of shares that consists of or includes unobtained shares if the seller is, at the time of the sale, able to obtain at least the number of shares of the same class as the unobtained shares by exercising exchange traded options.
7.4.08(3)
The number of shares of a class that a seller is able to obtain at the time of a sale is to be calculated using the formula:
(a) that does not exceed the sale price payable to the seller under the sale; or
(b) that exceeds the sale price by an amount that is no more than an amount deposited by the seller with Options Clearing House Proprietary Limited, or the Sydney Futures Exchange Clearing House Pty Limited, before and in relation to the sale.
7.4.08(4)
The price payable by the seller for obtaining shares by exercising exchange traded options is to be calculated by reference first to the option with the lowest exercise price, then to the option with the second lowest exercise price, and so on in ascending order of price until the necessary number of options would have been exercised.
PART 7.5 - DEALER'S ACCOUNT AND AUDIT REGULATION 7.5.01 AUDITOR'S REPORT 7.5.01(1)
For the purposes of subsection 860(2) of the Corporations Law, the auditor's report must be in accordance with Form 712.
7.5.01(2)
For the purpose of preparing the auditor's report referred to in subregulation (1), the auditor must:
(a) check or examine:
(b) in relation to any dealer who does not act only as a principal, check or examine:
PART 7.6 - MONEY AND SCRIP OF DEALER'S CLIENTS REGULATION 7.6.01 DEALER'S TRUST ACCOUNTS: EXEMPT 7.6.01(1)
Sections 866, 867, 868 and 872 of the Corporations Law do not have effect in relation to a dealing in securities carried on by a body corporate to which this regulation applies.
7.6.01(2)
This regulation applies to a body corporate that is a public company as defined in section 9 of the Corporations Law and has a paid-up capital of not less than $4,000,000, the principal functions of which include:
(a) underwriting issues of securities;or
(b) advising and assisting bodies corporate in relation to:
(c) doing anything incidental to the management and administration of investments of clients where the amount of the investments managed or administered for each client is not less than $200,000.
PART 7.7 - REGISTERS OF INTERESTS IN SECURITIES REGULATION 7.7.01 REGISTER OF INTERESTS IN SECURITIES 7.7.01(1)
A register required to be maintained under subsection 881(1) of the Corporations Law may be maintained in accordance with Form 714 or in a manner that enables the particulars required to be disclosed by Form 714 to be readily ascertained.
7.7.01(2)
If the person who maintains the Register is the holder of a licence who carries on business in partnership with another person, the Register must contain particulars of the securities in which the partnership has a relevant interest.
REGULATION 7.7.02 7.7.02 ENTRY OF PARTICULARS IN REGISTER
For the purposes of subsections 881(2) and (3) of the Corporations Law, particulars of securities must be entered in the Register in handwriting in ink of a type to provide satisfactory reproduction or by a mechanical means that allows for satisfactory copies of the entries to be made. PART 7.10 - THE NATIONAL GUARANTEE FUND REGULATION 7.10.01 7.10.01 PRESCRIBED RATE OF INTEREST: SUBSECTION 972(2) OF THE CORPORATIONS LAW
The prescribed rate of interest for the purposes of subsection 972(2) of the Corporations Law is 5% per annum. PART 7.11 - CONDUCT IN RELATION TO SECURITIES REGULATION 7.11.01 PROHIBITION OF DEALINGS IN SECURITIES BY INSIDERS 7.11.01(1)
Subsection 1002G(2) of the Corporations Law does not have effect in relation to:
(a) the obtaining by a director of a share qualification in accordance with subsection 223(1) of that Law; or
(b) the subscription for, and acquisition under that subscription of, securities of a body corporate by, or by a trustee for, employees of that body, or of a body corporate that is related to the first-mentioned body under a superannuation scheme, pension fund or other scheme established solely or primarily for the benefit of the employees; or
(c) a transaction entered into by a person in accordance with his or her obligations under an underwriting agreement; or
(d) a person holding the office of:
(e) a sale of securities under:
PART 7.13 - TITLE TO, AND TRANSFER OF, SECURITIES REGULATION 7.13.01 7.13.01 MARKETABLE SECURITIES (CORPORATIONS LAW, S 1097(1))
For the purposes of paragraph (b) of the definition of marketable security in subsection 1097(1) of the Corporations Law, an interest in a managed investment scheme as defined in section 9 of that Law is a prescribed security if:
(a) it is an interest in a managed investment scheme that is registered under section 601EB of the Law or a corresponding law; and
(b) it is quoted on Australian Stock Exchange Limited. REGULATION 7.13.03 ELIGIBLE BODY: SUBSECTION 1097(1) OF THE CORPORATIONS LAW 7.13.03(1)
For the purposes of subparagraph (b)(ii) of the definition of eligible body in subsection 1097(1) of the Corporations Law, Westpac Banking Corporation is prescribed.
7.13.03(2)
For the purposes of subparagraph (c)(iii) of the definition of eligible body in subsection 1097(1) of the Corporations Law, The Australian Gas Light Company is prescribed.
PART 7.14 - MISCELLANEOUS REGULATION 7.14.01 7.14.01 PERIOD FOR WHICH DOCUMENTS ARE TO BE RETAINED
For the purposes of subsection 1116(5) of the Corporations Law, the prescribed period is 7 years. REGULATION 7.14.02 7.14.02 FUTURES CONTRACTS
Chapter 7 of the Corporations Law does not have effect in relation to a transaction effected by virtue of a futures contract:
(a) that is effected on a market of the Sydney Futures Exchange Limited; and
(b) that relates only to securities. CHAPTER 8 - THE FUTURES INDUSTRY PART 8.1 - INTERPRETATION REGULATION 8.1.01 8.1.01 EXEMPTION FROM PARTS 8.3, 8.4 AND 8.5 OF THE CORPORATIONS LAW
Parts 8.3, 8.4 and 8.5 of the Corporations Law do not have effect in relation to a service as a futures adviser or futures broker that is provided:
(a) by a body to another body that:
(b) by CSR Limited to the Crown in the right of Queensland, to the Queensland Sugar Board or to another public authority of Queensland in connection with the sugar industry; or
(c) by Snowy Hydro Trading Pty Ltd to the Commonwealth, to Pacific Power or to the State Electricity Commission of Victoria in connection with an exempt futures market conducted in Australia in relation to the wholesale price of electricity. REGULATION 8.1.01A 8.1.01A EXEMPTION OF TRANSACTIONS RELATING TO SPORTING EVENTS FROM CHAPTER 8 OF THE CORPORATIONS LAW
Chapter 8 of the Corporations Law does not have effect in relation to any transaction based on an agreement that comes within the definition of adjustment agreement in section 9 of the Corporations Law if that transaction relates to the course or outcome of a sporting event. REGULATION 8.1.02 8.1.02 ELIGIBLE EXCHANGE-TRADED OPTIONS
The following indexes are prescribed for paragraph (b) of the definition of eligible exchange-traded option in section 9 of the Corporations Law:
(a) S&P/ASX 50 Share Price Index;
(ab) S&P/ASX 20 Share Price Index;
(b) Dow Jones Asia-Pacific Extra Liquid Series - Australia Equity Index;
(c) Dow Jones Asia-Pacific Extra Liquid Series - Hong Kong Equity Index;
(d) Dow Jones Asia-Pacific Extra Liquid Series - Japan Equity Index;
(e) Dow Jones Asia-Pacific Extra Liquid Series - Pan Pacific Equity Index;
(f) All Ordinaries Accumulation Index;
(g) S&P/ASX 100 Accumulation Index;
(h) S&P/ASX 100 Share Price Index;
(i) S&P/ASX 200 Share Price Index;
(j) S&P/ASX 300 Share Price Index;
(k) S&P/ASX Small Ordinaries Share Price Index;
(l) S&P/ASX Small Ordinaries Accumulation Index;
(m) Share Price Index. PART 8.2 - FUTURES EXCHANGES, CLEARING HOUSES AND FUTURES ASSOCIATIONS REGULATION 8.2.01 8.2.01 APPLICATIONS FOR LICENCES IN SEALED ENVELOPES
An application to ASIC for a futures brokers licence or a futures advisers licence may be enclosed in a sealed envelope that:
(a) states that an application for a licence is enclosed; and
(b) describes the kind of licence applied for; and
(c) sets out the name, address and telephone number of the applicant. REGULATION 8.2.02 8.2.02 RECOGNISED FUTURES EXCHANGES - PRESCRIBED BODIES CORPORATE
For the purposes of paragraph (b) of the definition of recognised futures exchange in section 9 of the Corporations Law, the bodies corporate specified in Schedule 11 are prescribed. REGULATION 8.2.03 8.2.03 EXEMPTION: SECTION 1121 AND DIVISION 2 OF PART 8.2: COMEX CLEARING ASSOCIATION OF NEW YORK
Section 1121 and Division 2 of Part 8.2 of the Corporations Law do not have effect in relation to the clearing house for a futures exchange known as the Comex Clearing Association of New York. PART 8.3 - PARTICIPANTS IN THE FUTURES INDUSTRY REGULATION 8.3.01 8.3.01 EXEMPTION: DIVISIONS 1 AND 2 OF PART 8.3, SECTIONS 1206, 1207 AND 1208 AND PART 8.5: CLEARING HOUSES
Divisions 1 and 2 of Part 8.3, sections 1206, 1207 and 1208 and Part 8.5 of the Corporations Law do not have effect in relation to clearing houses. REGULATION 8.3.02 EXEMPTION: PART 8.3 - CERTAIN FUTURES CONTRACTS 8.3.02(1)
In this regulation:
(a) who is the holder of a dealers licence granted under Part 7.3 of the Corporations Law; and
(b) who is not a person involved in a dealing to which Part 8.3 of the Corporations Law does not apply because of paragraph (2)(a), (b), (c), (d) or (e).
8.3.02(2)
Part 8.3 of the Corporations Law does not have effect in relation to:
(b) a dealing in a futures contract entered into by a body corporate on behalf of a related body corporate; or
(c) a dealing in a futures contract entered into:
(d) a dealing in a futures contract:
(e) a dealing in a futures contract:
(f) a dealing in a futures contract:
8.3.02(3)
For the purposes of subparagraph (2)(d)(v), (e)(iv) or (f)(iii):
(a) if a futures contract cancels another futures contract, the value of both contracts must be disregarded for the purpose of calculating the total value of the futures contracts referred to in subparagraph (2)(d)(v), (e)(iv) or (f)(iii); and
(b) if, but for this subregulation:
8.3.02(4)
For the purpose of subregulation (3), a futures contract to sell cancels an earlier futures contract to buy, and a futures contract to buy cancels an earlier futures contract to sell, if both contracts:
(a) relate to:
(b) are entered into:
REGULATION 8.3.03 CONDITIONS OF LICENCE: GENERAL 8.3.03(1)
For the purposes of section 1147 of the Corporations Law, a licence is subject to the conditions that the holder of the licence must ensure that each representative of the holder:
(a) is adequately supervised in the performance of the duties that he or she is required by the holder to perform; and
(b) is sufficiently trained in relation to those duties before acting as a representative; and
(c) keeps up to date in relation to those duties by means of continuing training programs.
8.3.03(2)
ASIC may, by notice in writing, require a holder of a licence to satisfy it that the conditions referred to in subregulation (1) have been met by the holder.
REGULATION 8.3.04 8.3.04 NOTIFYING CHANGE IN PARTICULARS
For the purposes of paragraph 1156(c) of the Corporations Law, if there is a change of a director or the secretary of a licensee, the particulars may be in accordance with Forms 304 and 802A. REGULATION 8.3.05 8.3.05 REGISTER OF HOLDERS OF PROPER AUTHORITIES: PRESCRIBED INFORMATION
For the purposes of paragraph 1176(3)(e) of the Corporations Law, the date of birth of each person who holds a proper authority from the licensee is prescribed information. REGULATION 8.3.06 LICENSEE TO NOTIFY COMMISSION OF LOCATION AND CONTENTS OF REGISTER 8.3.06(1)
For the purposes of subsections 1177(2) and (3) of the Corporations Law, a notice may be in accordance with Form 811.
8.3.06(2)
For the purposes of paragraph 1177(4)(b) and subsections 1177(5) and (6) of the Corporations Law, a notice may be in accordance with Form 812.
PART 8.4 - CONDUCT OF FUTURES BUSINESS REGULATION 8.4.01 8.4.01 EXEMPTION OF CERTAIN TRANSACTIONS FROM SUBSECTION 1206(1) OF THE CORPORATIONS LAW
Subsection 1206(1) of the Corporations Law does not apply to a transaction that is:
(a) the acquisition or disposal of a futures contract; and
(b) entered into by a futures broker on behalf of a member of a clearing house of a futures exchange;
This regulation applies in relation to a transaction described in subsection 1206(1) of the Corporations Law if, on behalf of the person acquiring or disposing of the futures contract, more than one futures broker enters into the transaction.
8.4.01A(2)
If the person has instructed a broker to allocate a dealing in the transaction to another broker, subsection 1206(1) of the Corporations Law does not apply, except to the broker who last deals in the transaction.
8.4.01A(3)
In circumstances other than those described in subregulation (2), subsection 1206(1) of the Corporations Law does not apply, except to the broker whom the client has instructed to enter the transaction.
REGULATION 8.4.01B EXEMPTION FROM CERTAIN REQUIREMENTS IN RELATION TO CONTRACT NOTES 8.4.01B(1)
In this regulation:
8.4.01B(2)
Section 1206 of the Corporations Law has effect in relation to a futures broker to the extent that the requirements of the section are subject to this regulation.
Sending a contract note electronically
8.4.01B(3)
The requirement of subsection 1206(1) of the Corporations Law that, in respect of a transaction, being the acquisition or disposal of a futures contract, a futures broker give, as soon as practicable, a contract note that complies with subsection 1206(3), (4) or (5) of the Law to the person on whose behalf the broker entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the client has given to the broker prior authorisation to send any contract note electronically to the client in relation to that transaction or all transactions (or all transactions included in a class in which that transaction is included) entered into on behalf of the client by the broker; and
(b) the broker sends the contract note electronically to the client in accordance with the authorisation.
Giving a single contract note for multiple transactions
8.4.01B(4)
The requirement of subsection 1206(1) of the Corporations Law that, in respect of a transaction, being the acquisition or disposal of a futures contract, a futures broker give, as soon as practicable, a contract note that complies with subsection 1206(3) of the Law to the person on whose behalf the broker entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the broker is a member of a futures exchange;
(b) the transaction takes place in accordance with the business rules of the futures exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with a broker;
(d) the client has given to the broker, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with a broker by the client, prior authorisation to give to the client a single contract note in respect of a series of transactions carried out under the order instead of an individual contract note in respect of each transaction in the series;
(e) the broker gives to the client a single contract note in respect of a series of transactions in which the transaction is included that:
(f) the contract note is given:
Price averaging
8.4.01B(5)
The requirement of subparagraph 1206(3)(d)(i) and sub-subparagraph 1206(3)(d)(ii)(B) of the Corporations Law that a contract note in respect of a transaction, being the acquisition or disposal of a futures contract, given to a person (the client ) by a futures broker include a statement of the contract price is satisfied if the following conditions are satisfied:
(a) the broker is a member of a futures exchange;
(b) the transaction takes place in accordance with the business rules of the futures exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with a broker;
(d) the client has, in accordance with the business rules of the futures exchange, given to the broker, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with a broker by the client, prior authorisation to give to the client a single contract note in respect of the series of transactions that specifies the average contract price of the futures contracts acquired or disposed of in the series of transactions, instead of an individual contract note in respect of each transaction in the series that specifies the contract price of the futures contract acquired or disposed of in the transaction to which each contract note relates;
(e) the broker gives the contract note to the client in accordance with the authorisation;
(f) unless otherwise provided by the business rules of the futures exchange, the broker, if requested to do so by the client, gives to the client a document that includes a statement of the contract price of each futures contract acquired or disposed of in each transaction in the series.
Authorisations
8.4.01B(6)
For this regulation, an authorisation given by a person to a broker:
(a) must be given orally, or in writing, by the person; and
(b) is effective until it is revoked, either orally or in writing, by the person.
8.4.01B(7)
If a person gives an oral authorisation to a broker, or revokes an authorisation orally, the broker must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the person.
REGULATION 8.4.02 8.4.02 WAIVER OF PARAGRAPH 1206(1)(B) OF THE CORPORATIONS LAW
For the purposes of paragraph 1206(1)(b) of the Corporations Law, the prescribed manner of agreeing to waive the operation of that paragraph is to sign an agreement in accordance with Form 803C. REGULATION 8.4.03 8.4.03 EXEMPTION OF CERTAIN TRANSACTIONS FROM SUBSECTION 1207(1) OF THE CORPORATIONS LAW
Subsection 1207(1) of the Corporations Law does not apply to a transaction that is:
(a) the acquisition of a futures contract before or during a particular month; and
(b) entered into by a futures broker on behalf of a member of a clearing house of a futures exchange;
(c) the futures contract has not been disposed of at the end of that month; and
(d) after the end of that month the broker gives to that member the information that the broker is required, under the business rules of that futures exchange, to give to that member about that transaction. REGULATION 8.4.03A WHICH FUTURES BROKER TO COMPLY WITH SUBSECTION 1207(1) OF THE CORPORATIONS LAW IN RELATION TO CERTAIN TRANSACTIONS? 8.4.03A(1)
This regulation applies in relation to a transaction described in paragraph 1207(1)(b) of the Corporations Law if, on behalf of the client who acquired the futures contract, more than one futures broker entered into the transaction.
8.4.03A(2)
If the person has instructed a broker to allocate a dealing in the transaction to another broker, subsection 1207(1) of the Corporations Law does not apply, except to the broker who last deals in the transaction.
8.4.03A(3)
In circumstances other than those described in subregulation (2), subsection 1207(1) of the Corporations Law does not apply, except to the broker whom the client has instructed to enter the transaction.
REGULATION 8.4.03B SENDING A MONTHLY STATEMENT ELECTRONICALLY 8.4.03B(1)
Subsection 1207(1) of the Corporations Law has effect in relation to a futures broker to the extent that the requirement of that subsection that the broker send a monthly statement to a client of the broker is satisfied if:
(a) the client has given to the broker a prior authorisation to send any monthly statement to the client electronically; and
(b) subject to regulation 8.4.03A, the broker sends the monthly statement to the client electronically within the time specified in section 1207.
8.4.03B(2)
For this regulation, an authorisation given to a broker by a client of the broker:
(a) must be given orally, or in writing, by the client; and
(b) is effective until it is revoked, either orally or in writing, by the client.
8.4.03B(3)
If a client of a broker gives an oral authorisation to the broker, or revokes an authorisation orally, the broker must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the client.
REGULATION 8.4.04 8.4.04 EXEMPTION OF CERTAIN TRANSACTIONS FROM PARAGRAPHS 1207(1)(G) AND (H) OF THE CORPORATIONS LAW
Paragraphs 1207(1)(g) and (h) of the Corporations Law do not apply to a transaction that is:
(a) the acquisition or disposal of a futures contract; and
(b) entered into by a futures broker on behalf of a member of a clearing house of a futures exchange;
(c) has held money or property on account of that member; and
(d) gives to that member the information that the broker is required, under the business rules of that exchange, to give to that member about that transaction. PART 8.6 - FIDELITY FUNDS REGULATION 8.6.01 8.6.01 FIDELITY FUND - PRESCRIBED RATE OF INTEREST
For the purposes of subsection 1240(4) of the Corporations Law, the prescribed rate of interest is 10%per annum. PART 8.7 - OFFENCES REGULATION 8.7.01 8.7.01 PRESCRIBED PARTICULARS IN RESPECT OF TRANSMISSION AND EXECUTION OF ORDERS
For the purposes of subsection 1266(7) of the Corporations Law:
(a) a futures broker must keep instructions by a client to deal in futures contracts separately from instructions to deal in futures contracts on the broker's own account; and
(b) the prescribed particulars of instructions by a client to deal in futures contracts are short particulars of the matters referred to in paragraphs 1266(7)(a), (b) and (c) of the Corporations Law; and
(c) the prescribed particulars of instructions to deal in futures contracts on the broker's own account are short particulars of the matters referred to in paragraphs 1266(7)(d) and (e) of the Corporations Law; and
(d) the prescribed period is 7 years. REGULATION 8.7.02 8.7.02 FUTURES BROKERS THAT ARE BANKS - CREDIT TO EMPLOYEES TO DEAL IN FUTURES CONTRACTS
Subsection 1267(4) of the Corporations Law does not have effect in relation to a bank that is a futures broker or a futures adviser only because the bank gives credit to an employee of the bank if:
(a) the credit is given for the purpose of enabling or assisting the employee to deal in futures contracts; or
(b) the bank knows or has reason to believe that the credit will be used by the employee for that purpose. REGULATION 8.7.03 8.7.03 PERIOD FOR WHICH COMMISSION IS REQUIRED TO RETAIN DOCUMENTS
For the purposes of subsection 1270(4) of the Corporations Law, the prescribed period is 7 years. CHAPTER 9 - MISCELLANEOUS PART 9.1 - REGISTERS AND REGISTRATION OF DOCUMENTS REGULATION 9.1.01 9.1.01 PRESCRIBED REGISTERS
For the purposes of subsections 1274A(2), (3) and (4) of the Corporations Law, the following registers are prescribed:
(a) the register of companies registered under section 118, 601BD or 1362B of the Law or the registration of which is continued by section 1413 of the Law;
(b) the register of Disqualified Company Directors and Other Officers kept under section 243 of the Law;
(c) the Australian Register of Company Charges kept under section 265 of the Law;
(d) the register of registered Australian bodies kept under Division 1 of Part 5B.2 of the Law;
(e) the register of foreign companies registered under Division 2 of Part 5B.2 of the Law;
(f) the register of names reserved under section 152 of the Law;
(g) the Register of Licence Holders kept under section 789 of the Law;
(h) the register of managed investment schemes registered under section 601EB of the Law;
(i) the Register of Futures Licensees kept under section 1155 of the Law;
(j) the Register of Auditors kept under section 1285 of the Law;
(k) the Register of Liquidators kept under section 1286 of the Law;
(l) the Register of Official Liquidators kept under section 1286 of the Law. REGULATION 9.1.02 9.1.02 PRESCRIBED INFORMATION
For the purposes of subsections 1274A(3) and (4) of the Corporations Law, the following information is prescribed:
(a) in relation to each company registered under section 118, 601BD or 1362B of the Law or the registration of which is continued by section 1413 of the Law:
(b) in relation to the Register of Disqualified Company Directors and Other Officers - orders and notices registered under section 243 of the Law;
(c) in relation to the Australian Register of Company Charges - each charge registered under subsection 265(2) of the Law;
(d) in relation to each body registered in the register of registered Australian bodies:
(e) in relation to each company entered in the register of foreign companies:
(f) in relation to the register of reserved or registered names - a name entered in that register, the number allocated to that name and the date on which the entry was made;
(g) in relation to the Register of Licence Holders - each licence holder registered under section 783 or 784 of the Law;
(h) in relation to each registered scheme:
(i) in relation to the Register of Futures Licensees - the name of each registered futures licensee;
(j) in relation to the Register of Auditors - the name of each registered auditor;
(k) in relation to the Register of Liquidators - the name of each registered liquidator;
(l) in relation to the Register of Official Liquidators - the name of each registered official liquidator. PART 9.2 - REGISTRATION OF AUDITORS AND LIQUIDATORS REGULATION 9.2.01 9.2.01 PRESCRIBED BODIES
For the purposes of subparagraphs 1280(2)(a)(i) and 1282(2)(a)(i) of the Corporations Law, the following bodies are prescribed:
(a) American Institute of Certified Public Accountants;
(b) Chartered Association of Certified Accountants (United Kingdom);
(c) The Institute of Chartered Accountants in England and Wales;
(d) The Institute of Chartered Accountants in Ireland;
(e) The Institute of Chartered Accountants of Scotland;
(f) New Zealand Society of Accountants;
(g) Canadian Institute of Chartered Accountants. REGULATION 9.2.02 9.2.02 PRESCRIBED UNIVERSITIES
For the purposes of subparagraphs 1280(2)(a)(ii) and 1282(2)(a)(ii) of the Corporations Law, the following universities are prescribed:
(a) Australian National University;
(b) Charles Sturt University, Mitchell;
(c) Charles Sturt University, Riverina;
(d) Curtin University of Technology;
(e) Deakin University;
(f) Flinders University of South Australia;
(g) Griffith University;
(h) James Cook University of North Queensland;
(i) La Trobe University;
(j) Macquarie University;
(k) Monash University;
(l) Murdoch University;
(m) Northern Territory University;
(n) Queensland University of Technology;
(o) University of Adelaide;
(p) University of Canberra;
(q) University of Melbourne;
(r) University of Newcastle;
(s) University of New England, Armidale;
(t) University of New England, Northern Rivers;
(u) University of New South Wales;
(v) University of Queensland;
(w) University of Sydney;
(x) University of Tasmania;
(y) University of Technology, Sydney;
(z) University of Western Australia;
(za) University of Western Sydney, Macarthur;
(zb)University of Western Sydney, Nepean;
(zc) University of Wollongong. REGULATION 9.2.03 9.2.03 PRESCRIBED INSTITUTIONS
For the purposes of subparagraphs 1280(2)(a)(ii) and 1282(2)(a)(ii) of the Corporations Law, the following institutions are prescribed:
(a) Avondale College;
(b) Ballarat College of Advanced Education;
(c) Bendigo College of Advanced Education;
(d) Brisbane College of Advanced Education;
(e) Capricornia Institute of Advanced Education;
(f) Churchlands College;
(g) Darling Downs Institute of Advanced Education;
(h) Footscray Institute of Technology;
(i) Gippsland Institute of Advanced Education;
(j) North Brisbane College of Advanced Education;
(k) Phillip Institute of Technology;
(l) Royal Melbourne Institute of Technology Limited;
(m) South Australian College of Advanced Education;
(n) South Australian Institute of Technology;
(o) Swinburne Institute of Technology;
(p) Tasmanian State Institute of Technology;
(q) The Western Institute;
(r) Victoria College;
(s) Warrnambool Institute of Advanced Education;
(t) Western Australian College of Advanced Education. REGULATION 9.2.04 9.2.04 PRACTICAL EXPERIENCE IN AUDITING (CORPORATIONS LAW, S 1280(2))
For the purposes of paragraph 1280(2)(b) of the Corporations Law, the prescribed practical experience in auditing:
(a) is:
(b) is practical experience that in the opinion of ASIC is equivalent to the practical experience specified in paragraph (a); or
(c) is work of the kind mentioned in paragraph (a) that was done under previous laws corresponding to sections 307, 308 and 309 of the Corporations Law. REGULATION 9.2.05 APPLICATION OF SECURITY UNDER SUBSECTION 1284(2) OF THE CORPORATIONS LAW 9.2.05(1)
For the purposes of subsection 1284(2) of the Corporations Law, a security lodged by a liquidator or a liquidator of a specified body corporate may be applied by ASIC in accordance with this regulation to compensate a person who has suffered pecuniary loss due to the failure of the liquidator, or liquidator of the specified body corporate, as the case may be, to carry out his or her duties adequately and properly.
9.2.05(2)
Subregulation (1) applies whether or not the liquidator has been convicted of an offence in relation to the failure.
9.2.05(3)
A security must not be applied to compensate a person unless the person lodges a claim for compensation in writing no later than:
(a) if ASIC has:
(b) if no notice is published and paragraph (c) does not apply - 6 months after the person became aware that he or she had suffered the pecuniary loss; or
(c) if ASIC is satisfied that the claim is a proper claim - a later date that ASIC allows.
9.2.05(4)
A notice mentioned in paragraph 3(a) must be published:
(a) in a newspaper circulating generally in Australia; and
(b) if ASIC so requires - in a newspaper circulating in a State or Territory where the liquidator performed his or her duties.
9.2.05(5)
ASIC must give the liquidator an opportunity of being heard before deciding whether a person is to be compensated under subregulation (1).
9.2.05(6)
For the purposes of this regulation, the amount of pecuniary loss that a person may claim is the amount worked out using the formula:
(a) the reasonable costs of; and
(b) disbursements of a reasonable amount that are incidental to;
9.2.05(7)
A security that is applied by ASIC must be applied:
(a) where the total of the admitted claims does not exceed the amount of the security - in the payment in full of those amounts; or
(b) where that total exceeds the amount of the security - in the payment of a proportion of the amount at which each of those claims was admitted.
9.2.05(8)
The proportion mentioned in paragraph (7)(b) must be the same as the proportion the amount of the security bears to the total of the admitted claims.
REGULATION 9.2.06 DISCHARGE, RETURN OR RELEASE OF SECURITY 9.2.06(1)
For the purposes of subsection 1284(3) of the Corporations Law:
(a) if a liquidator ceases to be registered as a liquidator; or
(b) if a liquidator of a specified body corporate ceases to be registered as a liquidator of that specified body corporate; or
(c) if there is a reduction in the potential liability of a liquidator in relation to which a security was lodged by the liquidator; or
(d) in such other circumstances as ASIC permits in a particular case;
(e) discharge the security in whole or part; or
(f) return the security in whole or part; or
(g) release the surety in whole or in part.
9.2.06(2)
ASIC must not exercise a power under subregulation (1) until 3 months after the date on which a notice in accordance with Form 904 is published:
(a) in a newspaper circulating generally in Australia; and
(b) if ASIC requires - in a newspaper circulating generally in the State or Territory of the principal place at which the liquidator practised, or, in the case of a liquidator of a specified body corporate, the principal place at which the functions of the liquidator of the specified body were performed:
9.2.06(3)
A notice must be published by, and at the expense of, the person making the application.
9.2.06(4)
If a liability may be imposed on a surety in relation to a claim:
(a) in response to a notice under subregulation (2); or
(b) accepted by ASIC as a proper claim;
(c) may; and
(d) on the request of the liquidator or liquidator of a specified body corporate, must;
(e) concerning the manner in which the security is to be dealt with; and
(f) whether the surety should be released wholly or in part.
9.2.06(5)
If a surety's liability under a security maintained with ASIC is substantially in excess of the surety's liability under all claims referred to in subregulation (4), ASIC may:
(a) direct that the instrument under which the surety's liability arises be varied; or
(b) return to the surety the proportion of the security that exceeds the surety's liability under all claims referred to in subregulation (4); or
(c) refer any matter in dispute to a court, or an arbitrator, for determination; or
(d) release the surety wholly or in part.
REGULATION 9.2.07 EFFECT OF DISCHARGE OF SECURITY 9.2.07(1)
If a security is discharged, wholly or in part, by ASIC:
(a) a claim does not lie against the surety in relation to the obligation to which the security relates to the extent that he or she has been released from that obligation; and
(b) the surety must return to the liquidator:
9.2.07(2)
If ASIC directs that a security be discharged in part:
(a) it may state that the surety is not released from the obligations relating to those claims that ASIC specifies; and
(b) the surety remains subject to any claims that are so specified.
PART 9.4 - PENALTY NOTICE OFFENCES AND PENALTIES REGULATION 9.4.01 9.4.01 PRESCRIBED OFFENCES (CORPORATIONS LAW S 1313)
For paragraph (b) of the definition of prescribed offence in subsection 1313(8) of the Corporations Law, an offence against a provision mentioned in Schedule 3 to the Corporations Law, to which a penalty of 5 penalty units applies, is prescribed. REGULATION 9.4.02 9.4.02 PRESCRIBED PENALTIES (CORPORATIONS LAW S 1313)
For an offence prescribed by regulation 9.4.01 for which a person may be, or has been, given a notice under subsection 1313(1) of the Corporations Law, the amount of the penalty is:
(a) if the person is an individual - 1.25 penalty units; and
(b) if the person is a body corporate - 6.25 penalty units. PART 9.4A - REGISTER AND INDEX REGULATION 9.4A.01 9.4A.01 DEFINITIONS FOR PART 9.4A
In this Part, unless the contrary intention appears:
(a) register of members of a corporation;
(b) register of holders of debentures of a corporation;
(c) register of members of a registered scheme;
(d) register of holders of options of a corporation. REGULATION 9.4A.02 REGISTER AND INDEX MUST BE KEPT UP TO DATE: SUBSECTION 1306(4A) OF THE CORPORATIONS LAW 9.4A.02(1)
A corporation that is an issuing body must ensure that its registers and index (if any) are, at any time, not more than 20 business days out of date.
9.4A.02(2)
If a person notifies a corporation that is an issuing body that the person wishes to inspect a register or index of the corporation, the corporation must ensure that, at the beginning of the business day following the day on which it receives the notice, the register or index that the person wishes to inspect is not more than 5 business days out of date.
PART 9.5 - DELEGATION OF POWERS AND FUNCTIONS UNDER THE CORPORATIONS LAW REGULATION 9.5.01 9.5.01 PRESCRIBED FUNCTIONS (LAW, S 1345A(1))
For the purposes of subsection 1345A(1) of the Corporations Law, the functions and powers of the Minister under the following provisions of the Corporations Law are prescribed:
(a) subsection 147(2) or 601DC(2) (Names available with Minister's consent);
(c) Part 9.7 (Unclaimed property). PART 9.11 - CHANGES RESULTING FROM THE MANAGED INVESTMENTS ACT 1998 REGULATION 9.11.01 9.11.01 FORM OF NOTICES FOR LODGMENT
A notice to be lodged under subsection 1455(2) or 1456(1), paragraph 1456(2)(c) or 1457(1)(b), subsection 1460(5) or paragraph 1460(6)(c) of the Corporations Law must be in the approved form. CHAPTER 10 - NATIONAL SCHEME PROVISIONS PART 10.1 - TRANSFER OF REGISTRATION Division 1 - Transfer of incorporation of recognised companies to this jurisdiction (Corporations Law, ss 1362B(1) and (2)) REGULATION 10.1.01 RECOGNISED COMPANIES MAY APPLY FOR REGISTRATION 10.1.01(1)
A recognised company may lodge an application to be registered as a company under section 1362B of the Corporations Law of this jurisdiction.
10.1.01(2)
ASIC must grant the application if:
(a) regulation 10.1.02 does not prevent ASIC from registering the company; and
(b) the application is made in accordance with regulation 10.1.03.
REGULATION 10.1.02 10.1.02 EXTERNALLY-REGISTERED BODIES CORPORATE NOT TO BE REGISTERED
ASIC must not register a recognised company if:
(a) the company is an externally-administered body corporate; or
(b) an application has been made to a court in Australia or elsewhere to wind up the company or for the approval of a compromise or arrangement between the company and another person, and has not been dealt with. REGULATION 10.1.03 FORM AND CONTENT OF APPLICATIONS 10.1.03(1)
An application by a recognised company under regulation 10.1.01 must be in accordance with Form 213.
10.1.03(2)
The application must be accompanied by each of the following documents that is not already held by ASIC:
(a) a certificate issued to the company, not earlier than 1 month before lodgment of the application, under the provisions of the Corporations Law of the jurisdiction in which the company is currently registered that correspond to Division 3;
(b) evidence acceptable to ASIC that regulation 10.1.02 does not prevent ASIC from registering the company under this Division;
(c) such other documents and information (if any) as ASIC requires by written notice given to the company.
REGULATION 10.1.04 10.1.04 REGISTRATION
If ASIC grants an application under subregulation 10.1.01(2), ASIC must:
(a) register the company as a company of the same type as it was in the jurisdiction in which it was registered immediately before its registration in accordance with this Division; and
(b) allocate to the company the same registration number that it had immediately before its registration in accordance with this Division. REGULATION 10.1.05 10.1.05 EFFECT OF REGISTRATION
If a company is registered in accordance with this Division:
(a) the company is taken to be registered under the Corporations Law of this jurisdiction; and
(b) its constitution immediately before being so registered:
If a company is registered in accordance with this Division, ASIC must issue a certificate that states:
(a) the company's name; and
(b) the company's ACN; and
(c) the company's type; and
(d) the date of registration in accordance with this Division.
10.1.06(2)
ASIC must keep a copy of the certificate.
10.1.06(3)
The copy of the certificate is taken, for subsection 1274(2) of the Corporations Law, to be lodged.
REGULATION 10.1.07 10.1.07 REGISTERS AND MINUTE BOOKS
If, immediately before the day on which a company is registered in accordance with this Division, the company kept a register, or books, mentioned in a law corresponding to section 168 or 271, or section 251A, of the Corporations Law:
(a) the register is taken to be a register mentioned in section 168 or 271 of the Law, as the case requires; and
(b) the books are taken to be books mentioned in section 251A of the Law. Division 2 - Transfer of incorporation of companies to other jurisdictions (Corporations Law, s 1362B(3)) REGULATION 10.1.08 APPROVAL OF APPLICATIONS FOR CERTIFICATES AUTHORISING TRANSFER APPLICATIONS 10.1.08(1)
An application to ASIC for a certificate authorising a company to apply for registration as a company under a law of another jurisdiction corresponding to section 1362B of the Corporations Law of this jurisdiction must be approved by a special resolution of the company.
10.1.08(2)
The special resolution must be approved at a general meeting of the company notice of which has been given to every member of the company.
10.1.08(3)
A copy of the special resolution must be lodged within 14 days of the day on which it was passed.
REGULATION 10.1.09 SPECIAL RESOLUTIONS MAY BE SET ASIDE BY COURT ORDER 10.1.09(1)
Within 28 days after the passing of a special resolution approving an application under regulation 10.1.08, a member, or members, of the company having at least 10% of the votes capable of being cast on the special resolution may apply in writing to the Court to have the resolution set aside.
10.1.09(2)
A member may, with the written consent of other members mentioned in subregulation (1), apply on their behalf to the Court under that subregulation.
10.1.09(3)
The Court may order the special resolution to be set aside if the Court is satisfied that the registration of the company in accordance with the resolution would unfairly prejudice the applicant or applicants.
10.1.09(4)
The company must lodge a copy of the Court order within 14 days of the day on which it was made.
REGULATION 10.1.10 APPLICATIONS FOR CERTIFICATES AUTHORISING TRANSFER APPLICATIONS 10.1.10(1)
A company may, in accordance with a special resolution of the company, apply to ASIC for a certificate authorising the company to apply for registration as a company under a law of another jurisdiction corresponding to section 1362B of the Corporations Law of this jurisdiction.
10.1.10(2)
An application under subregulation (1) must be in accordance with Form 214.
10.1.10(3)
The application must be accompanied by:
(a) a declaration signed by the directors of the company or, if the company has more than 2 directors, a majority of the directors, to the effect that they have:
(b) a report on the affairs of the company showing the assets and liabilities of the company up to the latest practicable date before the application was made.
REGULATION 10.1.11 ISSUE OF CERTIFICATES TO AUTHORISE TRANSFER APPLICATIONS 10.1.11(1)
On application in accordance with regulation 10.1.10, ASIC must issue a certificate mentioned in that regulation if:
(a) the company has passed a special resolution approving the application for the certificate; and
(b) the company has given to its creditors, in a manner approved by ASIC, notice of its intention to apply for such a certificate; and
(c) ASIC is not aware of any failure of the company to comply with a requirement of the Corporations Law that applies to the company; and
(d) ASIC is not aware of any other reason why the certificate should not be granted; and
(e) both the Minister and the Minister for this jurisdiction have consented under paragraph 1362B of the Corporations Law in writing to the transfer of registration to which the certificate relates.
10.1.11(2)
ASIC must not issue the certificate within 28 days of the day on which the application was made.
10.1.11(3)
A certificate may be issued under subregulation (1) subject to such conditions as are stated in the certificate.
CHAPTER 11 - MODIFICATION OF THE CO-OPERATIVE SCHEME ACTS PART 11.1 - COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980 REGULATION 11.1.01 11.1.01 MODIFICATION OF THE COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980
The Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 has effect with the modifications set out in regulation 11.1.02. REGULATION 11.1.02 11.1.02 MODIFICATION OF SECTION 34 (TIME FOR INSTITUTING CRIMINAL PROCEEDINGS)
Section 34 is modified as follows:
(a) after "Ministerial Council", insert "or the Minister";
(b) add at the end:
In this Chapter:
A reference in this Chapter to:
(a) a previous governing Code; or
(b) a provision of a previous governing Code; or
(c) an instrument under a previous governing Code; or
(d) a provision of an instrument under a previous governing Code;
Subregulation (2) applies to a provision of the following instruments:
(a) a previous governing Code that is applied by or under a provision of this Chapter;
(b) an instrument made under a Code mentioned in paragraph (a) that is applied by or under this Chapter;
(c) an ASIC transitional standard within the meaning of Part 12.7 or an instrument made under a provision of the standard.
12.1.03(2)
This subregulation applies if there is a reference in the provision to any of the following:
(a) a word or expression that is defined in the Corporations Law or these Regulations;
(b) a power exercised by AFIC or an SSA;
(c) a class of body;
(d) the rules of a body;
(e) the accounts, or group accounts, of a body;
(f) a previous governing Code or a provision of the Code;
(g) an ASIC transitional standard within the meaning of Part 12.7 or a provision of the standard;
(h) an APRA transitional prudential standard or a provision of the standard;
(i) an instrument made under a Code, an ASIC transitional standard, an APRA transitional prudential standard or a provision of the instrument.
12.1.03(3)
A word or expression that is defined in the Corporations Law or these regulations applies to each use of the word or expression unless the contrary intention appears.
12.1.03(4)
A reference to a power exercised by AFIC or an SSA is to be read as if it were a reference to an equivalent power exercised by ASIC under the Corporations Law, these regulations, another Commonwealth law or an ASIC transitional standard.
12.1.03(5)
A reference to a class of body is to be read as if it were the comparable class of company after the transition date.
12.1.03(6)
A reference to the rules of a body is to be read as if it were a reference to the constitution of the body.
12.1.03(7)
A reference to accounts, or group accounts, of a body is to be read as if it were a reference to a financial report, or consolidated financial statements, of the body.
12.1.03(8)
A reference to any matter mentioned in subregulation (2) is to be read in a way that:
(a) is consistent with, and promotes, the transition from the application of a previous governing Code to a transferring financial institution of this jurisdiction to the application to the institution of the Corporations Law and these regulations; and
(b) is consistent with the duties, functions and powers of ASIC or an SSA; and
(c) does not alter the interpretation or operation of the instrument in which the reference appears.
PART 12.2 - TRANSITIONAL MATTERS - GENERAL Division 1 - Modifications of Corporations Law REGULATION 12.2.01 12.2.01 PURPOSE OF DIVISION 1
For clause 28 of Schedule 4 to the Corporations Law, this Division modifies the Law in relation to a company registered under clause 3 of Schedule 4 to the Law. REGULATION 12.2.02 CERTAIN CONSTITUTIONAL CHANGES 12.2.02(1)
This regulation applies to a following modification of a provision of a company's constitution:
(a) a modification of a statement of the company's limited liability;
(b) a modification of a statement of the type of company to which the company's registration relates;
(c) a modification of an abbreviation of the company's name;
(d) the addition of 'Limited' or 'Proprietary Limited' to the company's name;
(e) the replacement of a word or expression that relates to a previous governing Code with a word or expression that is consistent with, and promotes, the transition from the application of that Code to the company to the application of the Corporations Law to the company;
(f) if the company is limited by guarantee, or by shares and guarantee, a modification to insert a provision to the effect that, on a winding up of the company, each member of the company is a guarantor of its debts and liabilities for an amount that does not exceed $20;
(g) if the company is limited by shares, a modification to create a class of shares in the company into which shares in the company that are mentioned in paragraph 12.2.04(1)(a), (b) or (c) may be converted.
12.2.02(2)
Subsection 136(2) and Part 2F.2 of, and Part 5 of Schedule 4 to, the Corporations Law do not apply in relation to a modification mentioned in subregulation (1) if:
(a) the provision to be modified is not a benefit fund rule within the meaning of subsection 16B(1) of the Life Insurance Act 1995; and
(b) the modification would not materially alter the rights or obligations of members of the company.
12.2.02(3)
The modification may be made by resolution of the directors of the company without a general meeting of members of the company being held.
REGULATION 12.2.03 REGISTERS OF MEMBERS 12.2.03(1)
Paragraph 169(1)(b) of the Corporations Law is modified in relation to the company by substituting:
(b) the date of admission to membership.
12.2.03(2)
Subsection 169(5) (which deals with non-beneficial ownership of companies other than listed companies), and subsection 169(6), of the Corporations Law do not apply to the company.
REGULATION 12.2.04 CONVERSION OF CERTAIN KINDS OF SHARES 12.2.04(1)
The directors of a company limited by shares may resolve, without a general meeting of members of the company being held, that shares in the company of the following kinds are converted to a single class of shares in the company:
(a) membership shares within the meaning of subclause 12(3) of Schedule 4 to the Corporations Law;
(b) redeemable preference shares to which clause 15 of Schedule 4 to the Law applies;
(c) a share issued under regulation 12.8.11 or 12.8.12.
12.2.04(2)
A resolution mentioned in subregulation (1) does not have effect unless the following requirements are met:
(a) the rights and obligations of holders of converted shares in relation to the following matters are stated in the constitution of the company:
(b) the conversion does not materially alter the rights and obligations of the holders of the converted shares;
(c) the value of the shares of the class into which the shares are converted (including both paid and unpaid amounts) is not more than $20;
(d) either:
12.2.04(3)
Subsection 140(2), Part 2F.2 and subsection 254G(3) of, and Part 5 of Schedule 4 to, the Corporations Law do not apply in relation to conversion of shares in accordance with this regulation.
12.2.04(4)
Within 1 month of a resolution of the directors of the company mentioned in subregulation (1), the company must lodge with ASIC:
(a) a copy of the resolution; and
(b) a declaration by the directors that the requirements of subregulation (2) have been met in relation to the resolution.
12.2.04(5)
The resolution takes effect on lodgment.
12.2.04(6)
On application, within 12 months of the resolution taking effect, by ASIC or the holders of at least 10% of the converted shares, a court may order that:
(a) the requirements of subregulation (2) have not been met in relation to a resolution lodged under subregulation (4); and
(b) the purported conversion is set aside.
12.2.04(7)
The order has effect from the time of the purported conversion.
12.2.04(8)
Within 14 days of an order of the court, the company must lodge a copy of the order with ASIC.
REGULATION 12.2.05 12.2.05 USE OF COMPANY NAME AND ACN ON DOCUMENTS
Section 153 of the Corporations Law does not apply in relation to the company. REGULATION 12.2.06 12.2.06 AGE OF DIRECTORS
Section 201C of the Corporations Law does not apply in relation to the company. REGULATION 12.2.07 12.2.07 DISCLOSURE OF DIRECTORS' REMUNERATION
Section 202B of the Corporations Law does not apply in relation to the company. REGULATION 12.2.07A 12.2.07A WHEN AGMs TO BE HELD
Subsection250N(2) of the Corporations Law is modified in relation to the company by omitting 'and within 5 months after the end of its financial year'. Division 2 - Other matters REGULATION 12.2.08 12.2.08 LODGMENT OF CERTAIN DOCUMENTS WITH ASIC
For clause 39 of Schedule 4 to the Corporations Law, if the Friendly Societies Code of this jurisdiction applied to a transferring financial institution of this jurisdiction immediately before the transfer date, the transferring financial institution may lodge with ASIC a document that had been lodged with AFIC at any time before the transfer date under that Code. REGULATION 12.2.09 NOTICES LODGED BY SSAs 12.2.09(1)
This regulation applies to a notice that:
(a) is mentioned in paragraph 4(1)(a) of Schedule 4 to the Corporations Law; and
(b) is lodged by the SSA for a transferring financial institution of this jurisdiction that was under external administration immediately before the transfer date.
12.2.09(2)
For paragraph 4(2)(b) of Schedule 4 to the Corporations Law, the following details are prescribed:
(a) the name and business address, and the business telephone number and fax number, of the person who is the external administrator when the notice is lodged;
(b) the date on which the transferring financial institution entered into external administration;
(c) the provisions under which the transferring financial institution entered into external administration;
(d) if, when the notice is lodged, the transferring financial institution is being externally administered under provisions other than the provisions under which the institution entered into external administration - the other provisions;
(e) a copy of any order made by a court in relation to the external administration of the transferring financial institution that the SSA considers is currently relevant to the external administration;
(f) a copy of any account, report or statement that:
REGULATION 12.2.10 CERTAIN APPOINTMENTS OF AUDITORS CONTINUE 12.2.10(1)
For clause 39 of Schedule 4 to the Corporations Law, this regulation applies if a person or body held an appointment, immediately before the transfer date, under a previous governing Code or the Friendly Societies Act 1894 of Western Australia as the auditor of a transferring financial institution.
12.2.10(2)
Section 324 of the Corporations Law applies to the person or body as if the person or body had been appointed under section 327 of the Law as the auditor of the transferring financial institution.
REGULATION 12.2.11 MEMBER DEPOSITS 12.2.11(1)
This regulation applies to a transferring financial institution of this jurisdiction that is:
(a) mentioned in paragraph (a) of the definition of transferring financial institution of this jurisdiction in clause 1 of Schedule 4 to the Corporations Law; and
(b) taken to be registered under clause 3 of Schedule 4 to that Law as a company limited by shares or a company limited by shares and guarantee.
12.2.11(2)
For clause 39 of Schedule 4 to the Corporations Law, this regulation modifies paragraphs 12(1)(b) and (c), and 14(1)(d), of Schedule 4 to the Law in relation to the company.
12.2.11(3)
If a withdrawable share in the companyis deemed under a law of a State to have become, immediately before the transfer date, a deposit with the company, a provision of the Corporations Law mentioned in subregulation (2) does not take effect until immediately after the deemed deposit.
REGULATION 12.2.12 CONVERTED SHARES 12.2.12(1)
For clause 39 of Schedule 4 to the Corporations Law, this regulation modifies the application of section 254K of the Law in relation to a share in a company that is converted in accordance with regulation 12.2.04 to a share of another kind.
12.2.12(2)
If the share is partly-paid, the company may redeem the share on the same terms on which the share was redeemable before its conversion.
PART 12.3 - REGISTRATION OF TRANSFERRING FINANCIAL INSTITUTIONS REGULATION 12.3.01 12.3.01 PURPOSE OF PART 12.3
For clause 28 of Schedule 4 to the Corporations Law, this Part modifies the operation of the Law in relation to a company registered under clause 3 of Schedule 4 to the Law. REGULATION 12.3.02 12.3.02 REGISTRATION AS COMPANIES
Paragraph 3(4)(b) of Schedule 4 to the Corporations Law applies in relation to the company as if the election mentioned in that paragraph must be lodged not later than 6 weeks after the transfer date. REGULATION 12.3.03 EFFECT OF ELECTIONS LODGED AFTER TRANSFER DATE 12.3.03(1)
This regulation applies to an election lodged in relation to the company in accordance with paragraph 3(4)(b) of Schedule 4 to the Corporations Law (as modified by regulation 12.3.02).
12.3.03(2)
Despite subclause 3(5) of Schedule 4 to the Corporations Law, the company is taken to have become registered on the transfer date as a company of the type specified in the election.
REGULATION 12.3.04 CERTIFICATES OF REGISTRATION ETC 12.3.04(1)
This regulation applies if:
(a) the company is taken to have become registered under regulation 12.3.03; and
(b) ASIC has issued a certificate of registration mentioned in paragraph 7(1)(c) of Schedule 4 to the Corporations Law in relation to the company as a result of the operation of subclause 3(5) of that Schedule.
12.3.04(2)
The certificate of registration is taken to refer to registration of the company as a company of the type specified in the election mentioned in regulation 12.3.03.
12.3.04(3)
ASIC may issue a replacement certificate of registration to the company.
12.3.04(4)
If the company is taken to be a company limited by shares, or by shares and guarantee, clause 6 of Schedule 4 to the Corporations Law does not apply subsections 169(3), (4), (5) and (6) of the Law to the company until the end of 14 days after the day of issue of the replacement certificate of registration.
PART 12.4 - NOTICE OF MEETINGS OF CERTAIN BODIES CORPORATE REGULATION 12.4.01 APPLICATION OF PART 12.4.01(1)
This Part applies to a body corporate that is:
(a) a transferring financial institution of this jurisdiction; or
(b) a company that is permitted to use the expression building society , credit society or credit union under section 66 of the Banking Act 1959.
12.4.01(2)
This Part applies in relation to the following members of the body corporate who are entitled to vote at a meeting of members of the body:
(a) members who hold only member shares;
(b) if the body is a company limited by guarantee - the members of the company;
(c) if the body is a company limited by shares and guarantee - the members of the company who do not hold shares in the company.
12.4.01(3)
This Part does not apply in relation to a meeting:
(a) that is held for the purposes of Chapter 5 or 6 of the Corporations Law; or
(b) to which Part 5 of Schedule 4 to that Law applies.
REGULATION 12.4.02 12.4.02 MODIFICATION OF CERTAIN PROVISIONS OF CORPORATIONS LAW
For clause 38 of Schedule 4 to the Corporations Law, this Part modifies the application of subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Law in relation to the members of the body corporate. REGULATION 12.4.03 MEMBERS ETC MAY ELECT TO BE NOTIFIED OF MEETINGS 12.4.03(1)
The body corporate may give notice to a member, or to an applicant for membership, of the body corporate that he or she may elect to receive notice under subsection 249J(1) of the Corporations Law of meetings of members of the body corporate.
12.4.03(2)
The notice must include a statement to the effect that:
(a) attendance at the AGM, and other meetings of members, of the body corporate enables the members:
(b) notice of meetings informs members about matters in relation to which they may wish to attend a meeting; and
(c) a member of the body corporate who is entitled to attend, and cast a vote at, a meeting may appoint a proxy to attend and vote for the member at the meeting; and
(d) if the member does not elect to receive notice, the body corporate is not required to give notice of its meetings to the member; and
(e) despite a member of the body corporate electing not to receive notice of its meetings, or not making an election, the member may at any time request the body corporate to give the member personal notice of the meetings.
12.4.03(3)
The member or applicant is taken not to have made an election if the body corporate has not received the election within 21 days of the notice being given in accordance with subregulation (1).
12.4.03(4)
If the member elects not to receive notice of meetings, or does not make an election, subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Corporations Law do not apply to the body corporate in relation to the member.
12.4.03(5)
If the applicant elects not to receive notice of meetings, or does not make an election, subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Corporations Law do not apply to the body corporate in relation to the applicant if he or she becomes a member of the body corporate to whom this Part applies.
REGULATION 12.4.04 NOTICE OF MEETINGS TO BE PUBLISHED IN PRESS 12.4.04(1)
If the body corporate gives notice under subregulation 12.4.03(1), notice of a meeting of the body corporate must be given in accordance with this regulation.
12.4.04(2)
The notice must be published, at least 21 days before the day on which the meeting is to be held, in at least 1 edition of a daily newspaper circulating generally in each jurisdiction in which the body corporate conducts its business.
12.4.04(3)
The notice must:
(a) set out the date and time when, and the place where, the meeting is to be held; and
(b) state the general nature of the business proposed for the meeting; and
(c) include a statement to the effect that a member of the body corporate who is entitled to vote at the meeting may request the body corporate to give the member personal notice of the meeting; and
(d) set out information about how a member may request the body corporate to give the member personal notice of the meeting.
REGULATION 12.4.05 12.4.05 COPIES OF NOTICES TO BE DISPLAYED
If the body corporate gives notice under subregulation 12.4.03(1), notice of a meeting of the body corporate must be displayed conspicuously, for at least 21 days before the day on which the meeting is to be held, at:
(a) the registered office of the body corporate; and
(b) each other place where the body corporate conducts business that is open to the public. REGULATION 12.4.06 MEMBERS MAY REQUEST NOTICE OF MEETINGS AT ANY TIME 12.4.06(1)
The member may request the body corporate to give notice of a meeting to the member under subsection 249J(1) of the Corporations Law.
12.4.06(2)
The request may be a standing request or only apply to a particular meeting.
12.4.06(3)
If the member makes a request under subregulation (1), subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Corporations Law apply to the body corporate in relation to:
(a) the member; and
(b) a meeting to which the request relates.
12.4.06(4)
However, if the member requests the body corporate to give notice of a meeting within 21 days of the day on which the meeting is to be held, the body corporate must give notice of the meeting to the member as soon as practicable.
REGULATION 12.4.07 12.4.07 RECORDS TO BE KEPT ABOUT NOTICES
A body corporate must, not later than 28 days after a notice is given under subregulation 12.4.03(1) to a member of the body corporate, record in writing:
(a) the date on which the notice was given to the member; and
(b) whether the member elected to receive notice of meetings of members of the body corporate.
In this Part:
(a) an instrument (as in force immediately before the transfer date) that was made by AFIC, or an SSA, under a provision of the replaced legislation in relation to a matter for which ASIC is responsible for which no transitional, saving or application provision applies on that date in:
(b) a requirement under the provisions mentioned in paragraph 272(1)(a) of the Financial Institutions Code of this jurisdiction; or
(c) a requirement under the provisions mentioned in paragraph 334(1)(a) of the Friendly Societies Code of this jurisdiction; or
(d) the ASIC transitional standards within the meaning of Part 12.7; or
(e) an instrument made under an instrument or provision mentioned in paragraph (a), (b), (c) or (d). REGULATION 12.5.02 APPLICATION, VARIATION, REVOCATION AND MODIFICATION 12.5.02(1)
For clause 28 of Schedule 4 to the Corporations Law, ASIC may determine that:
(a) an instrument mentioned in paragraph (a) of the definition of relevant transitional instrument or requirement in regulation 12.5.01 has applied between the transfer date and the date of the determination; and
(b) an instrument mentioned in paragraph (a) of this subregulation continues to apply from the date of the determination for a period that does not extend beyond the transition period.
12.5.02(2)
For clause 39 of Schedule 4 to the Corporations Law, ASIC may, by declaration:
(a) vary or revoke a relevant transitional instrument or requirement, or a determination under subregulation (1), that applies on the day on which the determination is made; or
(b) modify the application of a relevant transitional instrument or requirement that applies on the day on which the determination is made.
12.5.02(3)
However, ASIC must not vary or modify a relevant transitional instrument or requirement, or a determination, in relation to an obligation, contravention of which results in the commission of an offence, so as to make it more difficult to comply with the obligation.
12.5.02(4)
Also, ASIC must consult with APRA before:
(a) varying or revoking an ASIC transitional standard that is also an APRA transitional prudential standard; or
(b) modifying the application of an ASIC transitional standard that is also an APRA transitional prudential standard.
12.5.02(5)
A failure to comply with subregulation (4) does not affect the action taken by ASIC.
REGULATION 12.5.03 12.5.03 EFFECT OF DETERMINATIONS AND DECLARATIONS
A relevant transitional instrument or requirement has effect subject to a determination or declaration that applies to the instrument or requirement. REGULATION 12.5.04 PUBLICATION OF DETERMINATIONS AND DECLARATIONS 12.5.04(1)
If a relevant transitional instrument or requirement to which a determination or declaration relates was, before the transfer date, subject under a previous governing Code to a publication requirement corresponding to publication in the Gazette, the determination or declaration must be published in the Gazette.
12.5.04(2)
If a relevant transitional instrument or requirement to which a determination or declaration applies was not, before the transfer date, subject under a previous governing Code to a publication requirement corresponding to publication in the Gazette, a copy of the determination or declaration must be:
(a) given to each transferring financial institution of this jurisdiction to which the relevant transitional instrument or requirement applies; or
(b) otherwise made available to the institution.
REGULATION 12.5.05 12.5.05 WHEN DETERMINATIONS AND DECLARATIONS TAKE EFFECT
A determination or declaration takes effect on the day stated in the determination or declaration. REGULATION 12.5.06 INSPECTION AND PURCHASE OF COPIES OF INSTRUMENTS 12.5.06(1)
ASIC must take reasonable steps to ensure that copies of the current text of the following relevant transitional instruments or requirements are available for inspection and purchase:
(a) each provision of an instrument mentioned in paragraph (b) or (c) of the definition of relevant transitional instrument or requirement in regulation 12.5.01 that is the subject of a determination or declaration under subregulation 12.5.02(1) or (2);
(b) each ASIC transitional standard.
12.5.06(2)
A failure to comply with subregulation (1) does not affect the operation of a relevant transitional instrument or requirement.
PART 12.6 - FINANCIAL REPORTING BY CERTAIN BODIES CORPORATE REGULATION 12.6.01 APPLICATION OF PART 12.6.01(1)
This Part applies to a body corporate that is:
(a) a transferring financial institution of this jurisdiction; or
(b) a company that is permitted to use the expression building society , credit society or credit union under section 66 of the Banking Act 1959.
12.6.01(2)
This Part applies in relation to the following members of the body corporate:
(a) members who hold only member shares;
(b) if the body is a company limited by guarantee - the members of the company;
(c) if the body is a company limited by shares and guarantee - the members of the company who do not hold shares in the company.
REGULATION 12.6.02 12.6.02 MODIFICATION OF CERTAIN PROVISIONS OF CORPORATIONS LAW
For clause 38 of Schedule 4 to the Corporations Law, this Part modifies the application of section 314 of the Law in relation to the members of the body corporate. REGULATION 12.6.03 MEMBERS ETC MAY ELECT TO RECEIVE REPORTS 12.6.03(1)
The body corporate may give notice to a member, or to an applicant for membership, of the body corporate that he or she may elect to receive:
(a) the reports mentioned in paragraph 314(1)(a) of the Corporations Law; or
(b) if the body corporate prepares concise reports mentioned in paragraph 314(1)(b) of the Law, those reports.
12.6.03(2)
The notice must include a statement to the effect that:
(a) a report mentioned in subregulation (1) sets out information about:
(b) if the member does not elect to receive a report, the body corporate is not required to send copies of the reports or concise reports mentioned in subregulation (1) to the member; and
(c) despite a member of the body corporate electing not to receive those reports or concise reports, or not making an election, the member may at any time elect to receive the relevant reports.
12.6.03(3)
The member or applicant is taken not to have elected to receive a report if the body corporate has not received the election within 21 days of notice being given in accordance with subregulation (1).
12.6.03(4)
If the member elects not to receive the reports or concise reports mentioned in subregulation (1), or does not make an election, section 314 of the Corporations Law does not apply to the body corporate in relation to the member.
12.6.03(5)
If the applicant elects not to receive the reports or concise reports mentioned in subregulation (1), or does not make an election, section 314 of the Corporations Law does not apply to the body corporate in relation to the applicant if he or she becomes a member of the body corporate to whom this Part applies.
REGULATION 12.6.04 COPIES OF REPORTS TO BE AVAILABLE TO MEMBERS 12.6.04(1)
If the body corporate gives notice under subregulation 12.6.03(1), it must make copies of the relevant reports mentioned in that subregulation available for collection by its members at:
(a) the registered office of the body corporate; and
(b) every other place where the body corporate conducts business that is open to the public.
12.6.04(2)
Copies of the reports must be made available by the body corporate from the deadline mentioned in subsection 315(1) of the Corporations Law for reporting to members until 1 month after the day on which its next AGM after the end of the financial year is held.
REGULATION 12.6.05 12.6.05 RECORDS TO BE KEPT ABOUT NOTICES
A body corporate must, not later than 28 days after a notice is given under subregulation 12.6.03(1) to a member of the body corporate, record in writing:
(a) the date on which the notice was given to the member; and
(b) whether the member elected to receive the reports or concise report mentioned in that subregulation.
In this Part:
(a) a provision of a previous governing Code that is specified in Schedule 12; or
(b) an instrument made under a provision mentioned in paragraph (a).
(a) a transferring financial institution of this jurisdiction;
(b) a company that is permitted to use the expression, building society , credit society or credit union under section 66 of the Banking Act 1959;
(c) a friendly society;
(d) an Australian ADI to which a declaration under regulation 12.7.02 applies. REGULATION 12.7.02 DECLARATIONS BY ASIC 12.7.02(1)
This regulation applies, in relation to an Australian ADI, on:
(a) the initiative of ASIC; or
(b) application made to ASIC in writing by the ADI or another person.
12.7.02(2)
ASIC may declare that the Australian ADI conducts financial business of the same kind as the financial business of a transferring financial institution of this jurisdiction that was, immediately before the transfer date, registered as a Special Services Provider under the AFIC Code of this jurisdiction.
12.7.02(3)
A declaration:
(a) must be in writing given to the Australian ADI; and
(b) takes effect when the declaration, or a copy of the declaration, is given to that ADI.
Division 2 - Continued application of certain provisions REGULATION 12.7.03 CONTINUATION OF CERTAIN PROVISIONS OF PREVIOUS GOVERNING CODES 12.7.03(1)
For clause 39 of Schedule 4 to the Corporations Law, this regulation applies provisions (as modified in this regulation) of a previous governing Code to a relevant financial institution if, immediately before the transfer date, the provisions applied to the institution.
12.7.03(2)
Subsection 402(1) of the Financial Institutions Code, and section 79 of the Friendly Societies Code, of this jurisdiction apply to the relevant financial institution as if:
(a) a reference to a financial body or a society were a reference to the relevant financial institution; and
(b) a reference to applicable standards were a reference to the ASIC transitional standards.
12.7.03(3)
However, subsections 255(6), (7) and (8) of the Financial Institutions Code of this jurisdiction apply in relation to a special resolution of the relevant financial institution that amends a provision of the constitution of the institution that would, directly or indirectly, affect:
(a) the operation of an exempt stock market; or
(b) the timely disclosure of information to holders or potential holders of securities traded on an exempt stock market.
12.7.03(4)
Subsections 255(6), (7) and (8) of the Financial Institutions Code of this jurisdiction apply for the purposes of subregulation (3) as if:
(a) a reference to society were a reference to the relevant financial institution; and
(b) a reference to financial institutions legislation were a reference to the Corporations Law and the Corporations Regulations; and
(c) a reference to standards were a reference to the ASIC transitional standards.
REGULATION 12.7.04 CONTINUATION OF ASIC TRANSITIONAL STANDARDS 12.7.04(1)
For clause 39 of Schedule 4 to the Corporations Law and subject to this Division, the ASIC transitional standards:
(a) continue to apply in relation to a transferring financial institution of this jurisdiction to the extent that the standards applied to the institution immediately before the transfer date; and
(b) apply in relation to a relevant financial institution of a kind mentioned in paragraph (b) or (c) of the definition of that expression in regulation 12.7.01 to the extent that the standards applied to an institution of that kind immediately before the transfer date; and
(c) apply in relation to an Australian ADI to which a declaration under regulation 12.7.02 applies to the extent that the standards applied to Australian ADIs immediately before the transfer date.
12.7.04(2)
However, Prudential Standard 6.8.3, as applied by subregulation (1), does not authorise ASIC to grant an exemption.
REGULATION 12.7.05 EXEMPTION FROM, AND MODIFICATION OF, CERTAIN PROVISIONS 12.7.05(1)
This regulation applies, in the circumstances to which Prudential Standard 6.8.3 referred immediately before the transfer date, on:
(a) the initiative of ASIC; or
(b) application made to ASIC in writing by a person to whom Division 3 of Part 7.3 of the Corporations Law, or regulation 7.3.13A or 7.3.13B, applies or another person.
12.7.05(2)
ASIC may, by Gazette notice, declare:
(a) that Division 3 of Part 7.3 of the Corporations Law, or regulation 7.3.13A or 7.3.13B, does not apply to a person to whom the declaration applies; and
(b) that a provision mentioned in paragraph (a) applies to a person to whom the declaration applies as if the provision were modified in accordance with the declaration.
12.7.05(3)
Division 3 of Part 7.3 of the Corporations Law, and regulations 7.3.13A and 7.3.13B, apply subject to a declaration applying in relation to that Division or regulation.
12.7.05(4)
A declaration:
(a) may be made subject to a condition stated in the exemption; and
(b) takes effect on the day on which it is published.
PART 12.8 - SHARES IN CERTAIN BODIES CORPORATE Division 1 - Preliminary REGULATION 12.8.02 12.8.02 APPLICATION OF PART 12.8
This Part applies to a body corporate that is:
(a) a transferring financial institution of this jurisdiction; or
(b) a company that is permitted to use the expression, building society , credit society or credit union under section 66 of the Banking Act 1959. REGULATION 12.8.03 WHAT IS A MEMBER SHARE 12.8.03(1)
A share in the body corporate to which subregulation (2) or (3) applies is a member share .
12.8.03(2)
This subregulation applies if the share:
(a) is not an ED security; and
(b) has a fixed value; and
(c) is held by a single person, or 2 or more persons jointly; and
(d) entitles the holder, or joint holders, to use services provided by the body corporate; and
(e) is not transferable or transmissible, or is only transferable or transmissible to a person or body specified in the rules or constitution of the body corporate in circumstances stated in the rules or constitution.
12.8.03(3)
This subregulation applies if:
(a) the share is taken to have been issued under paragraph 12(1)(b), (c) or (d) of Schedule 4 to the Corporations Law; or
(b) that Law applies to the share under clause 15 of that Schedule; or
(c) the share is declared under regulation 12.8.04 to be a member share; or
(d) the share is issued under regulation 12.8.11 or 12.8.12.
REGULATION 12.8.04 DECLARATIONS BY ASIC 12.8.04(1)
This regulation applies, in relation to a share in the body corporate, on:
(a) the initiative of ASIC; or
(b) application made to ASIC in writing by the body corporate or another person.
12.8.04(2)
ASIC may declare in writing that shares are, or are not, member shares of the body corporate.
12.8.04(3)
The declaration takes effect when the declaration, or a copy of the declaration, is given to the body corporate.
Division 2 - Member shares REGULATION 12.8.05 12.8.05 NOTICE REQUIREMENTS
For clause 38 of Schedule 4 to the Corporations Law, Part 2H.6 of the Law does not apply in relation to a member share of the body corporate. REGULATION 12.8.06 REGISTERS OF MEMBERS 12.8.06(1)
For clause 38 of Schedule 4 to the Corporations Law, the Law is modified in accordance with this regulation.
12.8.06(2)
The register of members that is mentioned in subsection 169(1) of the Corporations Law may have a separate part for members of the body corporate who hold member shares.
12.8.06(3)
Section 173 of the Corporations Law is modified in relation to the body corporate by inserting after subsection 173(1):
12.8.06(4)
Section 173 of the Corporations Law is modified in relation to the body corporate by inserting after subsection 173(3):
12.8.06(5)
In subregulations (3) and (4), a reference to the part of the register for members of a body corporate who hold member shares includes a reference to:
(a) the register of members of the body corporate that is a company limited by guarantee; and
(b) the register of members of the body corporate limited by shares and guarantee who do not hold shares in the body.
REGULATION 12.8.06A MEMBER SHARES - LIABILITY TO PAY CALLS 12.8.06A(1)
For clause 38 of Schedule 4 to the Corporations Law, the operation of subsection 254M(1) of the Law is modified in accordance with this regulation.
12.8.06A(2)
If a member share in the body corporate is partly-paid, the shareholder is not liable to pay a call on the share, or on a winding up of the body corporate, without the consent of the shareholder, to the extent that the unpaid amount is increased as a result of the conversion of the share in accordance with regulation 12.2.04.
REGULATION 12.8.07 12.8.07 DISCLOSURE IN ANNUAL RETURNS
For clause 38 of Schedule 4 to the Corporations Law, item 8 in the table set out in section 348 of the Corporations Law does not apply in relation to a member of the body corporate holding only a member share, or member shares, in the body. REGULATION 12.8.08 12.8.08 MEMBER SHARES - NUMBERING AND CERTIFICATES
For clause 38 of Schedule 4 to the Corporations Law, sections 1086 and 1096 of the Law do not apply in relation to a member share of the body corporate. REGULATION 12.8.09 MEMBER SHARES - UNCLAIMED PROPERTY 12.8.09(1)
For clause 38 of Schedule 4 to the Corporations Law, section 1343 of the Law does not apply in relation to a member share of the body corporate.
12.8.09(2)
For clause 38 of Schedule 4 to the Corporations Law, the constitution of the body corporate may provide that if a member share is cancelled, and the value of the share is transferred, the value of the share is to be treated as unclaimed moneys held by the body corporate.
Division 3 - Certain shares in transferring building societies and credit unions REGULATION 12.8.10 12.8.10 DEFINITIONS FOR DIVISION 3
In this Division:
A transferring building society that is a company limited by shares may issue a share in the company giving the holder of the share the same rights and obligations in relation to the share as the holder of a membership share in the building society that is taken to have been issued on the transfer date under clause 12 of Schedule 4 to the Corporations Law has in relation to that share.
12.8.11(2)
However, the transferring building society must not issue the share if its constitution has been modified under paragraph 24(1)(c) of Schedule 4 to the Corporations Law.
12.8.11(3)
The provisions of the Corporations Law that apply in relation to the issue of a share in a company limited by shares that is not issued under this regulation also apply to a share that is issued under this regulation for all matters that are not dealt with in subregulations (1) and (2).
12.8.11(4)
This regulation does not affect:
(a) the capacity of a transferring building society to issue shares in the company otherwise than under this regulation; or
(b) a share issued otherwise than under this regulation.
REGULATION 12.8.12 TRANSFERRING CREDIT UNIONS MAY ISSUE SHARES EQUIVALENT TO WITHDRAWABLE SHARES 12.8.12(1)
A transferring credit union that is a company limited by shares may issue a share in the company that:
(a) is redeemable on the same terms as a withdrawable share in the credit union was withdrawable immediately before the transfer date; and
(b) otherwise gives the same rights to, and imposes the same obligations on, the holder of the share as the holder of a withdrawable share in the credit union had in relation to that share immediately before the transfer date.
12.8.12(2)
However, the transferring credit union must not issue the share if its constitution has been modified under paragraph 24(1)(c) of Schedule 4 to the Corporations Law.
12.8.12(3)
The provisions of the Corporations Law that apply in relation to the issue of a share in a company limited by shares that is not issued under this regulation also apply to a share that is issued under this regulation for all matters that are not dealt with in subregulations (1) and (2).
12.8.12(4)
This regulation does not affect:
(a) the capacity of a transferring credit union to issue shares in the company otherwise than under this regulation; or
(b) a share issued otherwise than under this regulation.
PART 12.9 - WINDING UP AND DEREGISTRATION OF CERTAIN TRANSFERRING FINANCIAL INSTITUTIONS REGULATION 12.9.01 12.9.01 APPLICATION OF PART 12.9
For clause 39 of Schedule 4 to the Corporations Law, this Part applies if, immediately before the transfer date, a transferring financial institution of this jurisdiction was being wound up under a law other than the previous governing Code. REGULATION 12.9.02 WINDING UP 12.9.02(1)
The law in force in this jurisdiction, before the commencement of the previous governing Code, that applied to the winding up of the transferring financial institution ( the relevant law ) continues to so apply on and after the transfer date as if that Code, and the Corporations Law, had not been enacted.
12.9.02(2)
However, for this regulation, a reference in the relevant law to the Registrar is read as if it were a reference to ASIC.
12.9.02(3)
Information about the transferring financial institution given to ASIC in a notice mentioned in regulation 12.2.09, or under the relevant law, is taken to be information given to ASIC in relation to the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction.
12.9.02(4)
In subregulation (3):
REGULATION 12.9.03 DEREGISTRATION 12.9.03(1)
Despite regulation 12.7.02, this regulation applies if the transferring financial institution had not been deregistered before the transfer date as a result of being wound up.
12.9.03(2)
Sections 601AB, 601AC, 601AD, 601AE, 601AF, 601AG and 601AH of the Corporations Law apply to the deregistration of the transferring financial institution.
SCHEDULE 1 - LIST OF FORMS IN SCHEDULE 2
SCHEDULE 2 - FORMS
The forms in Schedule 2 are not included in this compilation SCHEDULE 3 - SPECIFIED OFFICES
SCHEDULE 4 - PRESCRIBED AMOUNTS
SCHEDULE 5 - REQUIREMENTS FOR FINANCIAL STATEMENTS UNDER SUBSECTION 297(1) OF THE CORPORATIONS LAW
In this Schedule, unless the contrary intention appears:
(a) in relation to:
(b) in relation to a set of consolidated accounts of:
(c) in relation to the accounts of any other corporation for a financial period - the immediately preceding financial period.
(a) a corporation - cash or other assets of the corporation that would, in the ordinary course of business of the corporation, be consumed or converted into cash within 12 months after the end of the last financial period of that corporation; or
(b) an economic entity - cash or other assets of each entity that would, in the entity's ordinary course of business, be consumed or converted into cash within 12 months after the end of the entity's last financial period.
(a) a corporation - liabilities of the corporation that would in the ordinary course of business of the corporation be due and payable within 12 months after the end of the last financial period of the corporation; or
(b) an economic entity - liabilities of each entity that would, in the ordinary course of the entity's business, be due and payable within 12 months after the end of the entity's last financial period.
(a) the accounts of:
(b) a set of consolidated accounts of:
(c) the consolidated accounts of a chief entity:
(d) the accounts or consolidated accounts of any other company - a financial year of the company.
(a) who is an expert in relation to valuations of that type; and
(b) whose pecuniary or other interests could not reasonably be regarded as being capable of affecting the person's ability to give an unbiased opinion in relation to that valuation.
(a) a person who is a director or executive officer of a corporation - amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the corporation or any related body corporate; or
(b) a person not resident in Australia who is a director of a corporation - emoluments:
(a) is enforceable; or
(b) is evidenced by a formal document; or
(c) relates to a physical asset.
(a) Australian Stock Exchange Limited; or
(b) American Stock Exchange Inc.; or
(c) New York Stock Exchange Inc.; or
(d) New Zealand Stock Exchange; or
(e) Pacific Coast Stock Exchange; or
(f) The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited; or
(g) The Johannesburg Stock Exchange; or
(h) The Mid-West Stock Exchange; or
(i) The Montreal Exchange; or
(j) The Paris Bourse; or
(k) The Toronto Stock Exchange.
(a) a company - the operating profit or loss and extraordinary items of the company after providing for income tax; or
(b) an economic entity - the operating profit or loss and extraordinary items attributable to members of the chief entity after providing for income tax.
(2)
In this Schedule, unless the contrary intention appears:
(a) a reference to a requirement is a reference to a requirement of this Schedule; and
(b) a reference to a class of assets or liabilities of a company or economic entity is a reference to:
(c) a reference to the assets, liabilities, share capital or reserves of an economic entity or to the provisions made by the economic entity is a reference to the assets, liabilities, share capital or reserves of each entity in the economic entity or to the provisions made by each entity respectively; and
(d) a reference to cash as a current asset includes a reference to money held at call with a bank or financial institution.
(3)
In this Schedule, unless the contrary intention appears, the following entities are related entities:
(a) if an entity is the chief entity of another entity - the entity and the other entity;
(b) if an entity is under the control of a chief entity - the entity and the chief entity;
(c) if an entity is under the control of the chief entity of another entity:
(3A)
Unless the contrary intention appears, a word or expression (except a word or expression that is defined in subclause (1) or to which subclause (2) or (3) applies) that is used in this Schedule has the same meaning as in the Corporations Law as in force immediately before the commencement of item 29 in Schedule 3 to the Company Law Review Act 1998.
(3B)
Unless the contrary intention appears, a reference to a provision of the Corporations Law is a reference in this Schedule to the provision of the Law as in force immediately before the commencement of item 29 in Schedule 3 to the Company Law Review Act 1998.
(4)
Unless the contrary intention appears in accounts or consolidated accounts, an expression used in those accounts or consolidated accounts has the same meaning as in this Schedule.
2 Adaptation of format (1)
In this clause, prescribed requirement means, in relation to accounts or consolidated accounts:
(a) a form of words; or
(b) the order in which headings, subheadings or entries are to be arranged.
(2)
Subject to subclause (3), if:
(a) in the opinion of the directors of a company, having regard to the nature of the business conducted by the company; or
(b) in the opinion of the directors of a chief entity, having regard to the nature of the business conducted by the economic entity;
(3)
A prescribed requirement to specify an item of information in a profit and loss account or balance sheet forming part of accounts or consolidated accounts may only be departed from if that information is given separately in a note forming part of those accounts or consolidated accounts.
(4)
If a provision of this Schedule requires any matter relating to an entry in a profit and loss account or a subheading in a balance sheet to be provided for in a note, that matter may be incorporated into that entry or subheading.
3 General requirements for information given in accounts or consolidated accounts (1)
Subject to subclauses (3), (4) and (5), for the purpose of making out the accounts or the consolidated accounts for a financial period, a reference in this Schedule to the stating of information:
(a) in an entry in a profit and loss account, or in a note to that account, is to be read as a reference to the stating of that information for that period, and the stating of the corresponding information for the comparative financial period, in that entry or note; and
(b) in a subheading in a balance sheet, or in a note to that balance sheet, is to be read as a reference to the stating of that information as at the end of that period, and the stating of the corresponding information as at the end of the comparative financial period, in that subheading or note.
(2)
If the financial periods referred to in paragraph (1)(a) or (b) are not equal in length, the periods covered must be clearly indicated in the accounts or consolidated accounts.
(3)
For the purpose of making out for a financial period the first accounts after the incorporation of a company or the first consolidated accounts after a company becomes a chief entity, a reference in this Schedule to the stating of information does not include the stating of information corresponding to that information for or as at the end of the comparative financial period.
(4)
Information relating to a matter for or as at the end of the comparative financial period need not be given in those accounts or consolidated accounts if the directors, in those accounts or consolidated accounts, state in relation to that matter, that that information cannot be so given without unreasonable expense or delay.
(5)
If Division 3 of Part 4 applies to a company or an economic entity for a financial period but did not so apply for the comparative financial period, the information required by that Division to be included in the accounts or consolidated accounts is not required to be given for or as at the end of the comparative financial period.
(6)
If the accounts or the consolidated accounts are required to include a note because of:
(a) a provision in Division 2 of Part 3 - that note must be a note to the profit and loss account; or
(b) a provision in Division 3 of Part 3 or clause 28, 32 or 33 - that note must be a note to the balance sheet; or
(c) any other provision - that note must be a note to the profit and loss account, or to the balance sheet, forming part of those accounts or consolidated accounts.
(7)
If a provision of this Schedule requires information to be given in a note, a note prepared for the purposes of that provision must contain sufficient headings, cross-references or other particulars to enable the subject matter or purpose of the note to be readily identified.
4 Language and monetary values (1)
Accounts and consolidated accounts must be expressed in the English language.
(2)
In accounts and consolidated accounts all amounts must be expressed in Australian currency.
PART 2 - FORMAT OF PROFIT AND LOSS ACCOUNT AND BALANCE SHEET 6 Profit and loss account - basic format (1)
A profit and loss account must have the following format:
(2)
Such of the words set out in the table in subclause (1) as are relevant must be given in a profit and loss account with the total amount to which those words refer as an entry or part of an entry.
7 Balance sheet - basic format (1)
A balance sheet must have the following format:
(2)
For the purposes of this clause, each of the following groups of words set out in the table in subclause (1) is a heading:
(3)
The headings set out in the table in subclause (1), to the extent that they are relevant, must be given in a balance sheet.
(4)
The words set out in the table in subclause (1) that are relevant and do not comprise a heading must be given in a balance sheet with the total amount to which those words refer as a subheading or part of a subheading.
(5)
Each amount given in a balance sheet forming part of the accounts or the consolidated accounts, as the amount of assets of the company or economic entity as at the end of a financial period must be the difference between:
(a) the total of the amounts for which those assets are recorded in the books of the company, or of each entity in an economic entity at the end of that period; and
(b) the total provided for in respect of those assets by way of depreciation, amortisation, diminution in value or doubtful debts in those books as at the end of that period.
PART 3 - NOTES TO THE ACCOUNTS OR CONSOLIDATED ACCOUNTS Division 1 - Preliminary 8 Application of Part (1)
This Part applies:
(a) to all companies; and
(b) to all economic entities.
Division 2 - Notes relating to the profit and loss account 9 Profit and loss account - basic notes (1)
The accounts, or the consolidated accounts, must include a note of:
(a) each of the following items credited as revenue in determining operating profit or loss:
(b) each of the following items charged as expense in determining operating profit or loss:
(d) each material extraordinary item included in determining the profit or loss.
(2)
A note referred to in subclause (1) must specify:
(a) particulars, and the total amount, of each of the items, to which it relates; and
(b) in the case of the item referred to in subparagraph (1)(b)(v) - particulars, and the total amount, of each class of assets so affected.
10 Income tax attributable to accounting profit and to other years (1)
If there is a difference of more than 15% between the total amount provided for income tax attributable to a company, or to a economic entity, for a financial period and the amount of income tax that would be payable for that period on the income of the company or economic entity, calculated by reference to its operating profit or loss and extraordinary items, the accounts of the company or economic entity must include a note of a reconciliation of that difference.
(2)
If provision is made for the payment of income tax attributable to a company or to an entity in an economic entity during a period that, in whole or part, is a period other than the financial period in which that provision was made, the accounts of the company or the consolidated accounts relating to the economic entity must include a note stating:
(a) the amount (if any) of that provision that is attributableto that financial period; and
(b) the amount of that provision that is attributable to any other period.
11 Interest or dividends to or from related and other corporations
If:
(a) at any time during a financial period, or a comparative financial period, a company was related to a corporation or corporations; and
(b) subclause 9(2) requires a note to include particulars and an amount relating to interest or dividends;
(c) the part of that amount that is attributable to that corporation or those corporations; and
(d) the part of that amount that is attributable to other persons. Division 3 - Notes relating to the balance sheet Subdivision A - Classes of assets etc 12 Classes of assets, liabilities etc (1)
For the purposes of this Schedule, the assets, liabilities, share capital and reserves of a corporation, or economic entity, and the provisions made by a corporation or by a economic entity, must each be divided into classes, according to its nature and function in the business of the corporation or economic entity.
(2)
In relation to a subheading in a balance sheet forming part of the accounts or the consolidated accounts, the accounts or consolidated accounts must include a note of each of the classes included in determining the total amount given in the subheading.
(3)
Without limiting the classes that may be included in a note in accordance with subclause (2), those classes must include the classes which, in accordance with clause 13, relate to that subheading.
(4)
A note required by this Subdivision or by Subdivision B must specify particulars and the total amount of each class to which it relates.
13 Given classes of assets, liabilities etc
The accounts or the consolidated accounts must include a note of each of the classes in the following paragraphs:
(a) for receivables as current assets:
(b) for investments as current assets:
(c) for inventories as current assets:
(d) for receivables as non-current assets:
(e) for investments as non-current assets:
(f) for inventories as non-current assets:
(g) for property, plant and equipment as non-current assets:
(h) for intangible non-current assets:
(j) for creditors and borrowings as current liabilities:
(k) for provisions as current liabilities:
(l) for creditors and borrowings as non-current liabilities:
(m) for provisions as non-current liabilities - employee entitlements; and
(n) for reserves:
If:
(a) at the end of a financial period a provision for depreciation, amortisation, diminution in value or doubtful debts exists in the books of a company or an entity in an economic entity in relation to a class of assets of the company or the entity; and
(b) that class is required to be included in a note referred to in subclause 12(2), the particulars of that class required for the purposes of subclause 12(4) include:
In relation to each class of share capital of a company other than a chief entity that is required to make out consolidated accounts, the particulars and amount required by subclause 12(4) to be given for a financial period must include:
(a) the particulars and amount, at the end of that period, of:
(b) in relation to unissued shares for which options are outstanding:
(c) in relation to any class of preference shares:
(d) for all shares issued during that period:
(e) if the company is a no liability company, the number of shares forfeited during that period.
(2)
Subclause (1) applies to the consolidated accounts as if:
(a) "a company other than a chief entity that is required to make out consolidated accounts" were omitted and "an entity in an economic entity that has been issued to persons not being members of the economic entity" were substituted; and
(b) in subparagraph (1)(a)(i) "in the case of the chief entity" were inserted before "authorised capital"; and
(c) in subparagraphs (1)(a)(v), (1)(c)(iv) and (v) and paragraph (1)(e) "the company" (wherever occurring) were omitted and "the entity" substituted; and
(d) in paragraph (1)(d) "for all shares issued during that period" were omitted and "in respect of the shares issued during that period" substituted.
16 Transfers to or from each class of reserves
The accounts or the consolidated accounts for a financial period must include a note of material transfers to and from any class of reserves during that period. 17 Subdivision of certain classes of assets and liabilities (1)
If:
(a) a class of assets of a corporation comprising non-current assets, inventories or investments (other than investments listed on a specified stock exchange that have been recorded in the books of the corporation at market value) is required to be included in a note to a balance sheet referred to in subclause 12(2); and
(b) part of that class (in this subclause referred to as the designated part ) is valued otherwise than at the cost of manufacture, production or other acquisition;
(c) a summary description of the designated part, including in the case of non-current assets or investments:
(d) a summary description of the remainder of the class; and
(e) the total of the designated part and the remainder of the class; and
(f) if the total amount of a provision relating to those assets and the total amount of the residue must be included in that note because of clause 14 - each of those amounts must be apportioned so as to state the amount that is attributable to the designated part and the amount that is attributable to the remainder of the class.
(2)
If:
(a) a class comprising liabilities is required to be included in a note referred to in subclause 12(2); and
(b) part of that class comprises liabilities secured by a charge;
(c) a summary of the nature of the security; and
(d) the total amount of the liabilities secured by the charge.
(3)
If:
(a) a class of assets comprising investments is required to be included in a note referred to in subclause 12(2); and
(b) part of that class comprises investments listed on a specified stock exchange;
(c) a summary description of the investments so listed; and
(d) the market value of the investments so listed worked out on the official quotation on the stock market of that exchange.
(4)
If a class comprising:
(a) bills of exchange due and receivable by a corporation is required to be included in a note referred to in subclause 12(2) and part of that class comprises bills accepted or endorsed by a bank; or
(b) interest paid or payable by a corporation is required to be included in a note referred to in subclause 12(2) and part of that class comprises interest capitalised; or
(c) a provision for income tax is required to be included in a note referred to in subclause 12(2) and part of that class comprises a provision for future liability; or
(d) assets is required to be included in a note referred to in subclause 12(2) and part of that class comprises capitalised lease assets;
(e) a summary description of that part; and
(f) the total amount of that part.
18 Debts, charges or options (1)
If:
(a) at the end of a financial period, a company holds shares in a corporation or options for shares in a corporation; and
(b) in relation to the balance sheet forming part of the accounts of the company as at the end of that period, a note is required to include particulars relating to those shares and options for the purposes of subclause 12(4);
(c) in a related body corporate; or
(d) in another corporation.
(2)
If:
(a) at the end of a financial period, debts other than trade debts are due and receivable by or payable by a company (in this subclause referred to as "the subject company"); and
(b) in relation to the balance sheet forming part of the accounts of the subject company as at the end of that period, a note is required to include particulars relating to those debts for the purposes of subclause 12(4);
(c) the chief entity (if any) of the subject company; and
(d) any other related body corporate or an entity controlled by the chief entity.
(3)
If at the end of a financial period there remains in existence a loan made, guaranteed or secured by a company, by the company and one of its controlled entities (if any) or by one or more of its controlled entities to:
(a) a director of the company, a spouse of a director, or a relative of a director or spouse; or
(b) a director of a related body corporate, a spouse of a director, or a relative of a director or spouse; or
(c) a trustee of a trust under which a person referred to in paragraph (a) or (b) has a beneficial interest, if the loan is made to the trustee in his or her capacity as trustee; or
(d) a corporation, if a person referred to in paragraph (a) or (b) has a direct or indirect beneficial interest in shares in the corporation the nominal value of which is not less than 10 per cent of the nominal value of the issued share capital of the corporation;
(4)
For the purposes of paragraph (3)(d), a person referred to in paragraph (3)(a) or (b) is not to be taken to have a beneficial interest in shares in a corporation only because:
(a) the company has a relevant interest in shares in the corporation; and
(b) the person has a relevant interest in shares in the company.
(5)
If:
(a) at the end of a financial period, an entity in an economic entity holds shares, or options for shares, in a corporation that is not a corporation in the economic entity; and
(b) in relation to the balance sheet forming part of the consolidated accounts at the end of that period, a note is required to include particulars relating to those shares and options for the purposes of subclause 12(4);
(c) in a related body corporate; or
(d) in another corporation.
(6)
If:
(a) at the end of a financial period debts other than trade debts are due and receivable by or payable by an entity in an economic entity (in this subclause referred to as "the subject entity"); and
(b) in relation to the balance sheet forming part of the consolidated accounts relating to the economic entity as at the end of that period, a note is required to include particulars relating to those debts for the purposes of subclause 12(4);
(c) the chief entity (if any) of the subject entity; and
(d) any other related body corporate.
(7)
If, at the end of a financial period, there remains in existence a loan made, guaranteed or secured by an entity in an economic entity to:
(a) a director of the entity, a spouse of a director, or a relative of a director or spouse; or
(b) a director of a related entity, a spouse of a director, or a relative of a director or spouse; or
(c) if the loan is made to a trustee of a trust under which a person referred to in paragraph (a) or (b) has a beneficial interest - the trustee; or
(d) if a person referred to in paragraph (a) or (b) has a direct or indirect beneficial interest in shares in an entity, the nominal value of which is not less than 10 per cent of the nominal value of the issued share capital of the entity - the entity;
(8)
For the purposes of paragraph (7)(d), if an entity makes, guarantees or secures a loan to an entity referred to in that paragraph, a person referred to in paragraph (7)(a) or (b) must not be taken to have a beneficial interest in shares in the entity only because:
(a) the first-mentioned entity has a relevant interest in shares in the entity so referred to; and
(b) the person has a relevant interest in shares in the first-mentioned entity.
19 Land held for sale (1)
If land is held for sale by a company or by an entity in an economic entity, the accounts or the consolidated accounts must include a note of:
(a) the total cost of acquiring the land; and
(b) the total amount of any expenses involved in developing the land that have been capitalised; and
(c) the total of any rates, taxes, interest or other amounts relating to the land that have been capitalised.
(2)
In subclause (1), land includes an interest in land.
20 Unearned revenue
If a balance sheet forming part of the accounts or the consolidated accounts specifies a class of receivables, no part of those receivables that comprises unearned revenue must be included in an estimate of the gross amount of those receivables unless the amount of the unearned revenue is shown as a deduction from that estimated amount. 21 Valuations supported by guarantees, warranties or indemnities
If the valuation given in relation to an asset included in a class specified in a balance sheet forming part of the accounts or consolidated accounts as at the end of a financial period is supported by the existence of a guarantee, warranty or indemnity and there is a material difference between:
(a) the estimated realisable value of the asset as at the end of that period; and
(b) the amount at which the asset is shown in the books of the company or of an entity in an economic entity at that time;
(c) the nature of the asset; and
(d) the amount at which the asset is so shown in the books; and
(e) the estimated realisable value of the asset if its value were not supported by the existence of a guarantee, warranty or indemnity; and
(f) the terms of the guarantee, warranty or indemnity; and
(g) the identity of the other party or parties to the guarantee, warranty or indemnity. Subdivision C - Commitments etc not otherwise included 22 Commitments for expenditure (1)
For the purposes of this clause:
(a) capital expenditure contracted for; and
(b) lease and hire expenditure contracted for; and
(c) each type of commitment for expenditure, according to its subject matter, other than commitments referred to in paragraph (a) or (b) or commitments for the supply of inventories;
(2)
If:
(a) a balance sheet forming part of the accounts or the consolidated accounts at the end of a financial period does not include commitments for expenditure; and
(b) a type of commitment for expenditure that existed at the end of that period was material;
(c) not later than one year; and
(d) later than one year but not later than 2 years; and
(e) later than 2 years but not later than 5 years; and
(f) later than 5 years;
23 Contingent liabilities (1)
The accounts as at the end of a financial period must include a note stating, so far as practicable, the total, or an estimate of the total, of any contingent liabilities of the company as at the end of that period if that amount is material.
(2)
A note stating an amount of contingent liabilities must state how much of that amount arises for each of the following categories:
(a) the company; and
(b) related body corporate; and
(c) corporations the management or operating policies of which can be significantly influenced by the company or by a related body corporate; and
(d) business undertakings the management or operating policies of which can be significantly influenced by the company or by a related body corporate or in which the right or interest of the company or a related body corporate is material; and
(e) other persons;
(3)
The consolidated accounts for a financial period must include a note stating for all entities in an economic entity, so far as practicable, the total, or an estimate of the total, of any contingent liabilities of those entities as at the end of that period if that total is material to those entities.
(4)
A note stating the total of the contingent liabilities of the entities in an economic entity (in this subclause referred to as "the subject entities") must state how much of that total arises for each of the following categories:
(a) the subject entities; and
(b) related entities of the subject entities not being entities in that economic entity; and
(c) the entities, other than entities referred to in paragraph (a) or (b), the management or operating policies of which can be significantly influenced by any of the subject entities, or by a related entity of any of the subject entities; and
(d) the business undertakings the management or operating policies of which can be significantly influenced by any of the subject entities, or by a related entity of any of the subject entities, or in which a right or interest of any of the subject entities, or of a related entity of any of the subject entities, is material; and
(e) other persons;
(5)
Subject to subclause (6), the amount and particulars for a category referred to in subclause (2) or (4) may be expressed as a total.
(6)
If the contingent liabilities in a category differ substantially in nature, the information given for that category must be sufficient to enable the amount and nature of those liabilities to be distinguished.
24 Standby arrangements, unused credit facilities etc (1)
In this clause, corporation to which this clause applies means a company or an entity in an economic entity, that is:
(a) a borrowing corporation; or
(b) a guarantor corporation; or
(c) a corporation to which the Financial Corporations Act 1974 applies.
(2)
For the purposes of this clause, each of the following is a type of financing arrangement:
(a) credit standby arrangements;
(b) loan rollover facilities; or
(c) all other financing arrangements.
(3)
If at the end of a financial period a corporation to which this clause applies has access to or provides a financing arrangement, the accounts or, if the corporation is an entity in an economic entity, the consolidated accounts relating to that economic entity, for that period, must include a note stating for that financing arrangement or all financing arrangements of the same type:
(a) its nature; and
(b) the amount or the total amount of finance that is so accessible or is so provided; and
(c) a summary of restrictions as to its use or withdrawal; and
(d) in the case of a credit standby arrangement - the total amount of credit unused.
Division 4 - Other notes to be included in the accounts or consolidated accounts 25 Remuneration of directors (1)
In this clause, income , in relation to a director of a company, means all his or her remuneration:
(a) in connection with the management of the affairs of the company, or any related body corporate, whether as a director or otherwise; and
(b) by way of brokerage or commission in consideration of:
(c) by way of bonuses, commissions or salaries;
(e) any amount to which clause 26 applies.
(2)
Subject to subclause (3), the accounts for a financial period of a company must include in a note:
(a) the total of the income received, or due and receivable, for that financial period, by all directors of the company, directly or indirectly, from the company or from any related body corporate; and
(b) the number of directors of the company whose total income received, or due and receivable, for that financial period, directly or indirectly, from the company or from any related body corporate, falls within each band of income of $10,000.
(3)
If a person:
(a) is a director of a company that is at the end of a financial period a wholly-owned subsidiary of a chief entity incorporated in Australia; and
(b) is an executive officer of that chief entity;
(c) is not a director of that chief entity; and
(d) is required to be a director of the first-mentioned company in order to discharge, in whole or in part, his or her duties as an executive officer of that chief entity;
(4)
The consolidated accounts must include in a note the total of the income received, or due and receivable, directly or indirectly, for the financial period by all directors of each entity in an economic entity from:
(a) corporations of which they are directors; or
(b) related bodies corporate; or
(c) an entity controlled by the chief entity.
(5)
If a person:
(a) is a director of a corporation that, at the end of a financial period, is a wholly-owned subsidiary of a company incorporated in Australia that is a chief entity; and
(b) is an executive officer of the chief entity; and
(c) is not a director of the chief entity; and
(d) is required to be a director of the corporation in order to discharge in whole or in part, his or her duties as an executive officer of the chief entity;
26 Payments to persons or to prescribed superannuation funds (1)
Subject to subclause (2), if during a financial period:
(a) a company or an associate gave a prescribed benefit to a person, or to a prescribed superannuation fund, in connection with the retirement of a person from a prescribed office in relation to the company - the accounts of the company; or
(b) an entity in an economic entity or an associate gave a prescribed benefit to a person, or to a prescribed superannuation fund, in connection with the retirement of a person from a prescribed office in relation to the company or a controlled entity - the consolidated accounts;
(2)
The particulars referred to in subclause (1):
(a) must be particulars that have been disclosed to, and approved in a general meeting by, the members of the company or corporation, as the case may be, in accordance with subsection 237(2) of the Corporations Law; and
(b) may be given in summary form in the accounts or consolidated accounts, as the case may be, if the directors, having regard to the number of persons to whom those particulars would relate and the nature of those particulars, state in those accounts or consolidated accounts, as the case may be, that the provision of full particulars would be unreasonable.
(3)
An expression used in this clause has the same meaning as in section 237 of the Corporations Law.
27 Remuneration of auditors (1)
The accounts for a financial period must include in a note:
(a) the total of the remuneration received, or due and receivable, for that financial period by the auditor of the company, directly or indirectly, from the company, or any related body corporate, in connection with auditing the accounts of the company; and
(b) the total of the remuneration received, or due and receivable, for that financial period by the auditor of the company, directly or indirectly, from the company, or any related body corporate, in connection with any other services provided by that auditor to the company.
(2)
The consolidated accounts for a financial period must include in a note:
(a) the total amount of the remuneration received, or due and receivable, for the period by the auditor or auditors of an entity in the economic entity, directly or indirectly, from an entity in the economic entity, or from related entity, in connection with auditing the accounts and consolidated accounts of the chief entity and the accounts of each of its controlled entities; and
(b) the total amount of the remuneration received, or due and receivable, for the period by the auditor or auditors of an entity in the economic entity, directly or indirectly, from an entity in the economic entity, or from a related entity, in connection with other services provided by the auditor or the auditors to an entity in the economic entity.
(3)
If a part of the remuneration referred to in paragraph (2)(a) or (b) has not been received, or is not due and receivable, by the auditor of the chief entity referred to in subclause (2), the note referred to in that subclause must state the amount of that part separately.
(4)
In this clause, auditor , in relation to a company, means:
(a) a person who has or shares; or
(b) a member of a firm which has or shares;
PART 4 - SPECIAL ACCOUNTING REQUIREMENTS IN RELATION TO CERTAIN CORPORATIONS Division 1 - Borrowing and guarantor corporations 28 Schedule of debts receivable and debts payable (1)
The accounts of a borrowing corporation or guarantor body for a financial period must include, in relation to the balance sheet, a note containing a schedule setting out, separately, estimates of:
(a) debts receivable; and
(b) debts payable;
(c) not later than one year; and
(d) later than one year but not later than 2 years; and
(e) later than 2 years but not later than 5 years; and
(f) later than 5 years;
(2)
Subclause (1) applies to the consolidated accounts required by subsection 1058(6) of the Corporations Law as if the reference in that subclause to the accounts of a borrowing corporation or guarantor body were a reference to those consolidated accounts.
Division 2 - Listed corporations 29 Remuneration of executive officers (1)
In this clause, income means remuneration but does not include:
(a) an amount paid to a person who is an executive officer of a listed corporation, or an unlisted corporation that is a subsidiary of that corporation if the person was employed by the listed or the unlisted corporation:
(b) any amount to which clause 26 applies.
(2)
The accounts of a listed corporation for a financial period must include in a note:
(a) the number of executive officers of the corporation whose total income received, or due and receivable, for that financial period, directly or indirectly, from that corporation, or any related body corporate, in connection with the management of the affairs of that corporation, or any related body corporate, whether as executive officer or otherwise, falls within each $10,000 band of income after $100,000; and
(b) the total of the income referred to in paragraph (a) of all executive officers referred to in that paragraph.
(3)
The consolidated accounts for a financial period of an economic entity must, if the chief entity is a listed corporation include in a note:
(a) the number of executive officers of the economic entity whose total income received, or due and receivable, for the financial period, directly or indirectly, from the entities in the economic entity, or a related entity, in connection with the management of the affairs of the entities in the economic entity, or a related entity, whether as executive officers or otherwise, falls within each $10,000 band of income after $100,000; and
(b) the total of the income referred to in paragraph (a) of all executive officers referred to in that paragraph.
Division 3 - Certain companies including listed corporations and borrowing corporations 30 Application of Division (1)
Subject to subclause (2), this Division applies:
(a) to a company, or to an economic entity, for a financial period (in this paragraph referred to as the initial period ) and the immediately following financial period if at the end of the financial period immediately preceding the initial period, the company, or the chief entity, was:
(b) to a company or to an economic entity, if that company or the chief entity was a company other than a listed corporation or a borrowing corporation, for a financial period (in this paragraph referred to as the initial period ) and the immediately following financial period if:
(2)
This Division does not apply to a corporation referred to in paragraph (1)(a) or (b) that is a wholly-owned subsidiary of another corporation incorporated in Australia.
31 Economic dependency (1)
If:
(a) the normal trading activities of a company depend on a significant volume of business with another party; and
(b) that dependency exists during all or part of a financial period;
(2)
If:
(a) the normal trading activities of an entity in an economic entity depend on a significant volume of business with another party; and
(b) the activities are material in relation to the trading activities of the economic entity; and
(c) the dependency exists during all or part of a financial period;
32 Recent valuations of interests in land and buildings (1)
In this clause:
(a) freehold, strata title or rights to occupy land conferred by shares in a corporation; or
(b) leasehold interests in land for a term exceeding 20 years or any other interest conferring a right to reside on or otherwise occupy land;
(c) interests referred to in paragraphs (a) and (b) held for sale;
(d) a mere licence to occupy land; or
(e) rights for the purpose of mining or otherwise for the extraction of materials from land.
(2)
If:
(a) at the end of a financial period the assets of a company or economic entity include interests in land and buildings; and
(b) the value at which those assets are shown in accordance with clause 17 is not the current value;
(3)
The values required by subclause (2) for assets may be given as the total value if both or all of those assets, as the case may be:
(a) have been valued in the same year and on the same basis; and
(b) are the subject of the same type of valuation, being a director's valuation or an independent valuation.
33 Superannuation commitments (1)
In this clause, corporation , means a company or an entity in an economic entity.
(2)
If at the end of a financial period there is in existence a superannuation or retirement benefit plan established or sponsored by a corporation, or in which the corporation participates, the accounts of the corporation or, if the corporation is an entity in an economic entity, the consolidated accounts must include a note:
(a) stating that the plan exists; and
(b) stating the principal type of benefit provided for under the plan; and
(c) stating the basis of contributions to the plan; and
(d) stating whether the corporation is obliged to contribute to the plan and, if the corporation has such an obligation, whether it is legally enforceable;
(e) stating the date of the last actuarial assessment (if any) of the plan and the name and qualifications of the actuary who made that assessment; and
(f) subject to subclause (3), showing that funds are or are not available, as the case may be, for the purposes of the plan to satisfy all benefits that would have been vested under the plan in the event of:
(g) if in accordance with paragraph (f) the note shows that funds are not available - subject to subclause (3), stating particulars of the deficiency; and
(h) if the calculation required to show whether funds are or are not available is not made for the last day of that period - stating the day for which that calculation was made.
(3)
If:
(a) an entity in an economic entity has a right or interest in a business undertaking that is material to the economic entity; or
(b) 2 or more entities in an economic entity have rights or interests in a business undertaking that are in total material to the economic entity;
(4)
In working out whether funds are available for a plan established or sponsored by a corporation or in which a corporation participates, regard must be had to benefits payable to:
(a) a former employee of the corporation who is receiving benefits under the plan; or
(b) a dependant of a deceased employee or a deceased former employee of the corporation.
34 Business undertakings (1)
If at the end of a financial period a company has a right or interest in a business undertaking that is material to the company, the accounts of that company for that period must include a note stating:
(a) the nature of that right or interest; and
(b) if that undertaking is carried on through an unincorporated association, joint venture, partnership or trust that has a name - that name; and
(c) the principal activities carried on during that period in the course of the undertaking; and
(d) the amount and percentage of that right or interest in the undertaking; and
(e) the method of accounting used to record that right or interest; and
(f) the contribution of the undertaking to the profit or loss of the company; and
(g) the value of products and services directly received by the company from the undertaking after allowing for costs incurred by the company in receiving those products and services.
(2)
If at the end of a financial period:
(a) a company has rights or interests in more than one business undertaking; and
(b) none of those rights or interests are material to the company individually but in total are material to the company;
(c) the principal activities carried on during that financial period in the course of those undertakings; and
(d) the methods of accounting used to record those rights or interests, and for each of those methods, the amount at which those rights or interests are recorded in the books of the company; and
(e) the total contribution of those undertakings to the profit or loss of the company; and
(f) the total value of products and services directly received by the company from those undertakings after allowing for costs incurred by the company in receiving those products and services.
(3)
If at the end of a financial period:
(a) an entity in an economic entity has a right or interest in a business undertaking that is material to the economic entity; or
(b) 2 or more entities in an economic entity have rights or interests in a business undertaking that are in total material to the economic entity;
(c) the nature of that right or interest; and
(d) if the undertaking is carried on by means of or through an unincorporated association, joint venture, partnership or trust that has a name - that name; and
(e) the principal activities carried on during that period in the course of the undertaking; and
(f) the amount and the percentage of that right or interest in the undertaking; and
(g) the method of accounting used to record that right or interest; and
(h) the contribution of the undertaking to the profit or loss of the economic entity; and
(j) the value of products and services directly received by the entity from the undertaking, after allowing for costs incurred by the entity in receiving those products and services.
(4)
If at the end of a financial period:
(a) an entity in an economic entity has rights or interests in more than one business undertaking; and
(b) none of those rights or interests is individually material to the entities in the economic entity, but the rights or interests are, in total, material to the economic entity;
(c) the principal activities carried on during that financial period in the course of those undertakings; and
(d) the methods of accounting used to record those rights or interests, and for each of those methods, the amount at which those rights or interests are recorded in the books of the corporation; and
(e) the total contribution of those undertakings to the profit or loss of the economic entity; and
(f) the total value of products and services directly received by the economic entity from those undertakings after allowing for costs incurred by the economic entity in receiving those products and services.
35 Interests in corporations not being subsidiaries (1)
In this clause, interest includes shares in a corporation, convertible notes issued by a corporation and loans and advances made to a corporation.
(2)
If at the end of a financial period:
(a) a company has an interest in a corporation that is not a subsidiary of the company; and
(b) the interest is material to the company;
(c) its name; and
(d) its principal activities; and
(e) the percentage of each class of its issued shares that are held by the company; and
(f) its separate contribution to the profit or loss of the company; and
(g) the amount of that interest at the end of that period showing separately:
(3)
If at the end of a financial period:
(a) an entity or entities in an economic entity has an interest in an entity that is not a related entity (in this subclause referred to as the subject entity ); and
(b) the interest is material to the economic entity;
(c) its name; and
(d) its principal activities; and
(e) the percentage of each class of its issued shares that are held by the entity or entities in the economic entity; and
(f) its separate contribution to the profit or loss of the economic entity; and
(g) the amount of that interest at the end of that period showing separately:
(4)
For the purposes of subclauses (2) and (3):
(a) in determining whether or not an interest is material; or
(b) in showing the amount of any loans or advances made to a corporation;
PART 5 - ADDITIONAL REQUIREMENTS IN RELATION TO CONSOLIDATED ACCOUNTS 37 Controlled entities acquired or disposed of (1)
If, during a financial period, an entity has been acquired by an entity in an economic entity, the consolidated accounts of the economic entity must include a note stating, for each entity that has been acquired:
(a) its name; and
(b) the proportion of shares or other equity acquired in the entity; and
(c) the consideration for the shares or equity; and
(d) the fair value of its net tangible assets at the time of the acquisition.
(2)
If, during a financial period, a controlled entity is disposed of by an entity in an economic entity, the consolidated accounts for that period of the economic entity must include a note stating, for each entity that is disposed of:
(a) its name; and
(b) the operating profit or loss and extraordinary items attributable to members of the chief entity from the disposal of the entity; and
(c) the fair value of its net tangible assets at the time of the disposal; and
(d) the remaining interest held in it by the entity or entities in the economic entity.
38 Particulars in relation to controlled entities (1)
In this clause, share means a share in the issued share capital of an entity (other than a share that carries no right to participate beyond a given amount in a distribution of either profits or capital) or, if the entity does not have share capital, in the equity of the entity.
(2)
The consolidated accounts of a chief entity for a financial period must include a note stating, for each controlled entity:
(a) particulars of:
(b) the amount of its contribution to the profit or loss, during the period, of the economic entity; and
(c) if its financial year differs from that of the chief entity - particulars of its financial year; and
(d) if any of its business was carried on during that period in a country outside Australia - the name of that country.
(3)
If a controlled entity issues share capital, the particulars referred to in subparagraph (2)(a)(iii) must include, in relation to the shares held in the entity by the chief entity and each other entity in the economic entity:
(a) the amount at which the shares are recorded in the books of each entity; and
(b) the percentage of the shares held in relation to all of the shares of the entity
SCHEDULE 5A - FINANCIAL REPORTING - AUSTRALIAN BANKS AND LIFE OFFICES
In this Schedule:
(a) an Australian bank; or
(b) a life office. 2 Compliance with Chapter 2M - financial reports of Australian banks
If an Australian bank has prepared a financial report in accordance with the law of the Commonwealth, except the Corporations Law, relating to banking, the corporation is taken to have complied with the corresponding provisions of Chapter 2M. 3 Compliance with Chapter 2M - financial reports of life offices (1)
If a life office has prepared a financial report in accordance with the life insurance law (or with an order made under section 340 or 341 of the Corporations Law applying to the report) and the report was:
(a) laid before the relevant AGM of the corporation; and
(b) lodged within 3 months of the end of the period to which it relates;
(2)
The circumstances are:
(a) a financial report was not prepared in accordance with Chapter 2M, laid before the relevant AGM of the corporation or lodged; and
(b) an audit report required by that Chapter was not laid before that AGM or lodged.
(3)
If the life office does not lay before its AGM financial reports and auditors' reports complying with the life insurance law, the life office must lodge a copy of each of the reports within 4 months of the end of the period to which it relates.
4 Auditors' reports on financial reports of life offices
If the financial report of a life office complies with the life insurance law, sections 307, 308 and 309 of the Corporations Law do not apply in relation to the report. 5 Compliance with certain provisions of Chapter 2M - prescribed corporations (1)
This clause applies to a prescribed corporation that has, in accordance with Chapter 2M as modified in its operation by this Schedule, given to its members the documents that it is required to lay before its relevant AGM.
(2)
The corporation is not taken to have contravened Division 4 of Part 2M.3 of the Corporations Law only because it did not give to its members the financial reports or other documents mentioned in the Division.
(3)
However, subclause (1) does not apply in relation to a financial report or other document that must be laid before the AGM under section 317 of the Corporations Law.
6 Directors' reports - prescribed corporations that are not chief entities
If a prescribed corporation is not a chief entity in a financial year, subsection 292(1) of the Corporations Law does not require a directors' report for the corporation to be prepared for the year. 7 Compliance with Chapter 2M - financial reports of certain chief entities (1)
This clause applies to a corporation that, during an accounting period of the corporation:
(a) was a chief entity; and
(b) controlled another corporation (a controlled entity ) that was a prescribed corporation at any time in that period.
(2)
The chief entity does not contravene Chapter 2M only because a financial report of the entity does not consolidate a controlled entity that was at any time during the accounting period to which that report relates a prescribed corporation if the report complies with subclause (3).
(3)
A financial report of the chief entity for the accounting period complies with this subclause if the report of the controlled entity for the corresponding accounting period of the controlled entity is attached to the financial report of the chief entity.
SCHEDULE 6 - AVAILABILITY OF NAMES
In comparing one name with another for paragraph 147(1)(a) or (b) or 601DC(1)(a) or (b) of the Corporations Law, the following matters are to be disregarded:
(a) the use of the definite or indefinite article as the first word in one or both of those names;
(b) the use of "Proprietary", "Pty", "Limited", "Ltd", "No Liability" or "NL" in one or both of the names;
(c) whether a word is in the plural or singular number in one or both names;
(d) the type, size and case of letters, the size of any numbers or other characters, and any accents, spaces between letters, numbers or characters, and punctuation marks, used in one or both names;
(e) the fact that one name contains a word or expression in column 2 of the following table and the other name contains an alternative for that word or expression in column 3:
PART 2 - NAMES UNACCEPTABLE FOR REGISTRATION
6201
For the purposes of this Part, Games authority means:
(a) in relation to a name that suggests a connection with the Summer Games of the Twenty-Seventh Olympiad - the body known as the Sydney Organising Committee for the Olympic Games; and
(b) in relation to a name that suggests a connection with the Paralympic Games to be held in Sydney in the year 2000:
For paragraph 147(1)(c) or 601DC(1)(c) of the Corporations Law, a name is unacceptable for registration, if the name:
(a) contains:
(b) contains:
(c) contains:
(d) contains the phrase "Share the Spirit"; or
(e) contains:
(f) contains:
(g) contains:
(h) contains the phrase "Games City"; or
(i) contains the phrase "Summer Games"; or
(j) contains the phrase "Sydney Games"; or
(k) contains the phrase "Millennium Games"; or
(l) contains the phrase "Gold Games"; or
(m) contains a word or an abbreviation of a word in subparagraph (a)(i) which, in the context in which it is proposed to be used, suggests a connection with:
For paragraph 147(1)(c) or 601DC(1)(c) of the Corporations Law, a name is unacceptable for registration if the name:
(a) in the opinion of ASIC, is undesirable, or likely to be offensive to:
(b) subject to rule 6204:
(c) subject to rule 6205, includes the word "Commonwealth" or "Federal"; or
(d) in the context in which it is proposed to be used, suggests a connection with:
(e) in the context in which it is proposed to be used, suggests a connection with:
(f) in the context in which it is proposed to be used, suggests that the members of an organisation are totally or partially incapacitated if those members are not so affected. 6204
Paragraph 6203(b) does not apply to:
(a) item 9, 12 or 18 of Part 3 if a word in any of those items must be included in the name of:
(b) item 14 of Part 3 if the word must be included in the name of:
Paragraph 6203(c) does not apply if ASIC is satisfied that the word is used in a geographical context. 6206
For the purposes of paragraph 6202(m), it is evidence of a connection between a body corporate and:
(a) the Summer Games of the Twenty-Seventh Olympiad, to be conducted by the body known as the International Olympic Committee; or
(b) the Paralympic Games to be held in Sydney, New South Wales in the year 2000 and to be conducted by the body known as the International Paralympic Committee;
Application under the Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for a review of a decision of the Games authority under rule 6206 not to grant a certificate stating that a connection exists between the body corporate and:
(a) the Summer Games of the Twenty-Seventh Olympiad, to be conducted by the body known as the International Olympic Committee; or
(b) the Paralympic Games to be held in Sydney, New South Wales in the year 2000 and to be conducted by the body known as the International Paralympic Committee.
Rules 6201, 6202, 6206 and 6207 cease to have effect at the end of 31 December 2000. PART 3 - RESTRICTED WORDS AND PHRASES
PART 4 - CONSENT REQUIRED TO USE RESTRICTED WORDS AND PHRASES
PART 5 - NAMES RELATING TO FINANCIAL INSTITUTIONS FOR USE OF WHICH CONSENT IS REQUIRED
SCHEDULE 7 - EXEMPTIONS FROM REQUIREMENTS TO SET OUT CERTAIN CORPORATE PARTICULARS
In this Schedule:
An IATA Body is exempt from the requirement to set out the relevant information on a document if:
(a) it is a document of one of the following kinds:
(b) either:
The following companies, registered Australian bodies and registered foreign companies are exempt from the requirement to set out the relevant information on a bill of lading or sea waybill:
(a) Austrident Shipping Agency Pty Ltd;
(b) ANL Limited;
(c) Bakke-WA Pty Limited;
(d) Blue Star Line Limited;
(e) Blue Star PACE Limited;
(f) CSR Limited;
(g) Dalgety Australia Operations Limited;
(h) Five Star Shipping & Agency Company Pty Ltd;
(i) Jebsens International (Australia) Pty Ltd;
(j) "K" Line (Australia) Pty Limited;
(k) Nedlloyd Australia Pty Ltd;
(l) OOCL (Australia) Pty Limited;
(m) Opal Maritime Agencies Pty Limited;
(n) Patrick Sleigh Shipping Agencies Pty Limited;
(o) Tasman Express Line Limited;
(p) Wilhelmsen Lines Australia Pty Ltd;
(q) Wills Shipping Pty Limited. 7004 Exemptions - quotation of ACNs and ARBNs (1)
A company is exempt from the requirement to set out the relevant information on a public document, or a negotiable instrument, of the company if:
(a) the company is registered on the Australian Business Register; and
(b) the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN; and
(c) 'Australian Business Number' or 'ABN' is displayed with the name of the company, or with 1 of the references to that name:
(2)
A registered Australian body or registered foreign body is exempt from the requirement to set out information mentioned in paragraph 601DE(1)(b) and subsection 601DE(2) of the Corporations Law on a public document, or a negotiable instrument, of the registered body or foreign company if:
(a) the body or company is also registered on the Australian Business Register; and
(b) the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN; and
(c) 'Australian Business Number' or 'ABN' is displayed with the name of the body or company, or with 1 of the references to that name:
SCHEDULE 8 - SCHEMES OF ARRANGEMENT UNDER PART 5.1 OF THE CORPORATIONS LAW
In this Schedule:
(a) a creditor who is a member of the company; or
(b) a relative or spouse of a member; or
(c) a relative of the spouse of a member.
This Schedule applies to a Part 5.1 body that is not a company as if:
(a) references to a company were references to a Part 5.1 body that is not a company; and
(b) references to a director were references to an office bearer, committee member or other office holder of the body; and
(c) references to entitlements to voting shares were references to an ability to exercise a percentage of the total votes that could be exercised by members of the body. PART 2 - PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH CREDITORS OR CLASS OF CREDITORS 8201
The statement must set out:
(a) the expected dividend that would be available to scheme creditors if the company were to be wound up within 6 months after the date of the hearing of the application to the Court for an order under subsections 411(1) and (1A) of the Corporations Law; and
(b) if a composition of debts is proposed - the expected dividend that would be paid to scheme creditors if the Scheme were put into effect as proposed; and
(c) a list of the names of all known scheme creditors and the debts owed to those creditors; and
(d) if a scheme creditor is known to be a guaranteed creditor - the name of the creditor and the amount of the debt owed; and
(e) if a scheme creditor is known to be an internal creditor - the name of the creditor and the amount of the debt owed. 8202
The statement must contain a statement that an order under subsections 411(1) and (1A) of the Corporations Law is not an endorsement of, or any other expression of opinion on, the Scheme. 8203
The statement must contain or have annexed to it:
(a) a report on the affairs of the company in accordance with Form 507, showing the financial position of the company as at a day within one month of the date on which it is intended to apply to the Court for an order under subsections 411(1) and (1A) of the Corporations Law;
(b) a copy, certified by a director or by a secretary of the company to be a true copy, of all financial statements, required to be lodged with the ASC by the company, together with a copy of every document required by law to be annexed to the financial statements;
(c) if the company the subject of the Scheme is a trustee, a statement:
(d) if the person (if any) who would be appointed to manage the Scheme proposes to charge for his or her services and for the services of his or her staff in accordance with a particular scale of charges, that scale of charges. PART 3 - PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH MEMBERS OR A CLASS OF MEMBERS 8301
The statement must set out:
(a) unless the company the subject of the Scheme is in the course of being wound up or is under official management, in relation to each director of the company:
(b) if the company is in the course of being wound up or is under official management - in relation to each liquidator or each official manager:
The statement must set out:
(a) the number, description and amount of marketable securities of the company the subject of the Scheme held by or on behalf of each director of the company or, if none are held by or on behalf of a director, a statement to that effect; and
(b) for each director of the company by whom or on whose behalf shares in that company are held, whether:
(c) if the other party to the proposed reconstruction or amalgamation is, or includes, a corporation, whether any marketable securities of the corporation are held by, or on behalf of, any director of the company the subject of the Scheme and, if so, the number, description and amount of those marketable securities; and
(d) particulars of any payment or other benefit that is proposed to:
(e) if there is any other agreement or arrangement made between a director of the company the subject of the Scheme and another person in connection with or conditional on the outcome of the Scheme - particulars of the agreement or arrangement; and
(f) if the object of the Scheme is for a corporation to acquire control of another corporation that is a company, particulars of the nature and extent of any interest of a director of that company in any contract entered into by the corporation seeking control; and
(g) if the shares of the company the subject of the Scheme are not granted official quotation on a securities exchange, all the information that the company has as to the number of shares that have been sold in the 6 months immediately before the date on which the statement is lodged, the amount of those shares and the prices at which they were sold; and
(h) whether, within the knowledge of the directors of the company the subject of the Scheme, or, if the company is in liquidation or under official management, the knowledge of the liquidator or the official manager, the financial position of the company has materially changed since the date of the last balance sheet laid before the company in general meeting or sent to shareholders in accordance with section 314 or 317 of the Corporations Law and, if so, full particulars of any change; and
(i) any other information material to the making of a decision in relation to the Scheme, being information that is within the knowledge of any director, liquidator or official manager of a company the subject of the Scheme or of a related company and that has not previously been disclosed to the Scheme members. 8303
If:
(a) the other party to the proposed reconstruction or amalgamation of the company the subject of the Scheme has a prescribed shareholding in the company; or
(b) a director of any corporation that is the other party to the proposed reconstruction or amalgamation is a director of a company the subject of the Scheme;
If the company the subject of the Scheme obtains 2 or more reports, each of which could be used for the purposes of clause 3, the statement must be accompanied by a copy of each report. 8305
If:
(a) the company the subject of the Scheme obtains a report for the purposes of clause 3; and
(b) the report contains:
For the purposes of clause 3:
(a) a person has a prescribed shareholding in a company if he or she is entitled to not less than 30% of the voting shares in the company; and
(b) a person has a prescribed shareholding in a company in which the voting shares are divided into 2 or more classes of shares, if he or she is entitled to not less than 30% of the shares in one of those classes. 8307
If the consideration to be offered to scheme members consists, in whole or in part, of marketable securities issued, or to be issued, by a corporation, the statement must set out the formula to be applied to find out the number of marketable securities to be issued to each scheme member, and the basis on which that formula was developed. 8308
If marketable securities of the same class as those referred to in clause 7 are granted official quotation on a securities exchange, the statement must state the fact, specify the securities exchange concerned, and set out:
(a) the latest recorded sale price before the date on which the statement is lodged for registration; and
(b) the highest and lowest recorded sale prices during the 3 months immediately before that date and the dates of the relevant sales; and
(c) if the Scheme has been the subject of a public announcement in newspapers or by any other means before the statement has been registered by ASIC - the latest recorded sale price immediately before the public announcement. 8309 (1)
If the marketable securities referred to in clause 8 are granted official quotation on more than one securities exchange, it is sufficient compliance with paragraphs 8(a) and (c) if information on the marketable securities is given for the securities exchange at which there has been the greatest number of recorded dealings in the securities in the 3 months immediately before the date on which the statement is lodged for registration.
(2)
If the securities have not been granted official quotation on a securities exchange, the statement must set out all the information that a director, liquidator or official manager of the company the subject of the Scheme or of a related body corporate has about the number of securities that have been sold in the 3 months immediately before the date on which the explanatory statement was prepared and the price of those securities or, if that information or any part of that information cannot be ascertained, a statement to that effect.
8310
The statement must set out particulars of the intentions of the directors of the company the subject of the Scheme regarding:
(a) the continuation of the business of the company or, if the undertaking, or any part of the undertaking, of a company is to be transferred, how that undertaking or part is to be conducted in the future; and
(b) any major changes to be made to the business of the company, including any redeployment of the fixed assets of the company; and
(c) the future employment of the present employees of the company. PART 4 - PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH MEMBERS OR CLASS OF MEMBERS FOR TRANSFER TO A TRUSTEE 8401
The statement must set out:
(a) in detail, the basis on which units in the unit trust are to be issued to scheme members; and
(b) if the issue of units in the unit trust is based on the asset backing of shares held by scheme members - full valuation details of those assets. 8402
A copy of the trust deed must be annexed, or set out in a schedule, to the statement. 8403
If the effect of the proposed compromise or arrangement will be the merger of 2 companies without substantial common membership, the explanatory statement must, so far as practicable, state the matters, and be accompanied by the documents and reports, referred to in Part 3. SCHEDULE 8A - DEED OF COMPANY ARRANGEMENT - PRESCRIBED PROVISIONS
In exercising the powers conferred by this deed and carrying out the duties arising under this deed, the administrator is taken to act as agent for and on behalf of the company. 2 Powers of administrator
For the purpose only of administering this deed, the administrator has the following powers:
(a) to enter upon or take possession of the property of the company;
(b) to lease or let on hire property of the company;
(c) to grant options over property of the company on such conditions as the administrator thinks fit;
(d) to insure property of the company;
(e) to repair, renew or enlarge property of the company;
(f) to call in, collect or convert into money the property of the company;
(g) to administer the assets available for the payment of claims of creditors in accordance with the provisions of this deed;
(h) to purchase, hire, lease or otherwise acquire any property or interest in property from any person or corporation;
(i) to borrow or raise money, whether secured upon any or all of the assets of the company or unsecured, for any period on such terms as the administrator thinks fit and whether in substitution for any existing security or otherwise;
(j) to bring, prosecute and defend in the name and on behalf of the company or in the name of the administrator any actions, suits or proceedings;
(k) to refer to arbitration any question affecting the company;
(l) to make payments to any secured creditor of the company and any person who is the owner or lessor of property possessed used or occupied by the company;
(m) to convene and hold meetings of the members or creditors of the company for any purpose the administrator thinks fit;
(n) to make interim or other distributions of the proceeds of the realisation of the assets available for the payment of claims of creditors as provided in this deed;
(o) to appoint agents to do any business or to attend to any matter or affairs of the company that the administrator is unable to do, or that it is unreasonable to expect the administrator to do, in person;
(p) to engage or discharge employees on behalf of the company;
(q) to appoint a solicitor, accountant or other professionally qualified person to assist the administrator;
(r) to permit any person authorised by the administrator to operate any account in the name of the company;
(s) to sell, call in or convert into money any of the property of the company, to apply the money in accordance with this deed and otherwise effectively and properly to carry out his or her duties as administrator;
(t) to do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents, using the company's common or official seal when necessary;
(u) subject to the Bankruptcy Act 1966, to prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act;
(v) subject to the Corporations Law, to prove in the winding up of any contributory or debtor of the company or under any scheme of arrangement entered into, or deed of company arrangement executed, under the Corporations Law;
(w) to draw, accept, make or endorse any bill of exchange or promissory note in the name and on behalf of the company;
(x) to take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or the estate of a contributory or debtor, that cannot be conveniently done in the name of the company;
(y) to bring or defend an application for the winding up of the company;
(z) to carry on the business of the company on such terms and conditions and for such purposes and times and in such manner as the administrator thinks fit subject only to the limitations imposed by this deed;
(za) to sell any or all of the property of the company including the whole of the business or undertaking of the company at any time the administrator thinks fit, either by public auction or by private contract and either for a lump sum or for a sum payable by instalments or for a sum on account and to obtain a mortgage charge or encumbrance for the balance or otherwise;
(zb) to close down the whole or any part of any business of the company;
(zc) to enter into and complete any contract for the sale of shares in the company;
(zd) to compromise any debts or claims brought by or against the company on such terms as the administrator thinks fit and to take security for the discharge of any debt forming part of the property of the company;
(ze) to pay any class of creditors in full, subject to Subdivision D of Division 6 of Part 5.6 of the Corporations Law;
(zf) to do anything that is incidental to exercising a power set out in this clause;
(zg) to do anything else that is necessary or convenient for the purpose of administering this deed. 3 Termination of deed where arrangement fails
If the administrator or the committee of inspection determines that it is no longer practicable or desirable either to continue to carry on the business of the company or to implement this deed, the administrator:
(a) may cease to carry on the business of the company except so far as is necessary for the beneficial winding up of the company;
(b) must summon a meeting of creditors for the purpose of passing a resolution under section 445C(b) of the Corporations Law; and
(c) must forward to each creditor not less than 14 days prior to the meeting an up-to-date report as to the position of the company accompanied by such financial statements as the administrator thinks fit, together with a statement that he or she does not think it practicable or desirable to carry on the business of the company or to continue this deed and that this deed will be terminated if the company's creditors resolve. 4 Priority
The administrator must apply the property of the company coming under his or her control under this deed in the order of priority specified in section 556 of the Corporations Law. 5 Discharge of debts
The creditors must accept their entitlements under this deed in full satisfaction and complete discharge of all debts or claims which they have or claim to have against the company as at the day when the administration began and each of them will, if called upon to do so, execute and deliver to the company such forms of release of any such claim as the administrator requires. 6 Claims extinguished
If the administrator has paid to the creditors their full entitlements under this deed, all debts or claims, present or future, actual or contingent, due or which may become due by the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began and each claim against the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began is extinguished. 7 Bar to creditors' claims
Subject to section 444D of the Corporations Law this deed may be pleaded by the company against any creditor in bar of any debt or claim that is admissible under this deed and a creditor (whether the creditor's debt or claim is or is not admitted or established under this deed) must not, before the termination of this deed:
(a) take or concur in the taking of any step to wind up the company; or
(b) except for the purpose and to the extent provided in this deed, institute or prosecute any legal proceedings in relation to any debt incurred or alleged to have been incurred by the company before the day when the administration began; or
(c) take any further step (including any step by way of legal or equitable execution) in any proceedings pending against or in relation to the company at the day when the administration began; or
(d) exercise any right of set-off or cross-action to which the creditor would not have been entitled had the company been wound up at the day when the administration began; or
(e) commence or take any further step in any arbitration against the company or to which the company is a party. 8 Making claims
Subdivisions A, B, C and E of Division 6 of Part 5.6 of the Corporations Law apply to claims made under this deed as if the references to the liquidator were references to the administrator of this deed. 9 Meetings
Regulations 5.6.12 to 5.6.36A of the Corporations Regulations apply, with such modifications as are necessary, to meetings of creditors or of the committee of inspection held under this deed as if the references to "the liquidator", "the liquidator or provisional liquidator", "the liquidator, provisional liquidator or chairman" or "a liquidator, provisional liquidator or trustee for debenture holders", as the case may be, were references to the administrator of this deed. 10 Lodging of accounts
Sections 432 and 434 of the Corporations Law apply to the administrator as if the reference to a controller were a reference to the administrator of this deed. 11 Committee of inspection
For the purpose of advising and assisting the administrator of this deed, there must be a committee of inspection (referred to in this clause as the committee ) to which the following rules apply:
(a) the committee must consist of at least 3 and not more than 5 members;
(b) the creditors must appoint the members in a general meeting;
(c) a creditor is not entitled to have more than one representative (including the creditor himself or herself, if a natural person) on the committee;
(d) minutes of all resolutions and proceedings of each meeting of the committee must be made and duly entered in books to be provided from time to time for that purpose by the administrator under this deed;
(e) if the minutes of a meeting purport to be signed by the chairperson of the meeting at which the resolutions were passed or proceedings taken or by the chairperson of the next meeting of the committee, the minutes are prima facie evidence of the matters contained in them;
(f) unless the contrary is proved, the meeting is taken to have been duly had and convened and all resolutions passed and proceedings taken at the meeting are taken to have been duly passed and taken;
(g) a corporation (being otherwise qualified for membership of the committee) is not entitled to be a member of the committee but may appoint a person to represent it on the committee;
(h) subsection 548(3) and sections 549, 550 and 551 of the Corporations Law apply, with such modifications as are necessary, to a committee of inspection established under this deed as if the references to the liquidator were references to the administrator of this deed and the references to contributories were deleted. 12 Termination of deed where arrangement achieves purpose
If the administrator has applied all of the proceeds of the realisation of the assets available for the payment of creditors or has paid to the creditors the sum of 100 cents in the dollar or any lesser sum determined by the creditors at a general meeting, the administrator must certify to that effect in writing and must within 28 days lodge with ASIC a notice of termination of this deed in the following form:
SCHEDULE 9 - AUTHORISED TRUSTEE CORPORATIONS
SCHEDULE 11 - RECOGNISED FUTURES EXCHANGES
SCHEDULE 12 - ASIC TRANSITIONAL STANDARDS
The following provisions of Book 3 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) the modification of the accounting standard known as Accounting Standard AASB 1032 (published in the Gazette on 12 December 1996) by Prudential Standard 3.3.1, except the definition of deposits added to the accounting standard by the Prudential Standard;
(b) Prudential Standard 3.5.4;
(c) Prudential Standard 3.5.5;
(d) Prudential Standard 3.7.1;
(e) Prudential Standard 3.7.4;
(f) Prudential Standard 3.7.5. 2.
The following provisions of Book 4 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) the modification of the accounting standard known Accounting Standard AASB 1032 (published in the Gazette on 12 December 1996) by Prudential Standard 4.3.1, except the definition of deposits added to the accounting standard by the Prudential Standard;
(b) Prudential Standard 4.7.1;
(c) Prudential Standard 4.7.4;
(d) Prudential Standard 4.7.5. 3.
The following provisions of Book 5 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) Prudential Standard 5.5.1;
(b) Prudential Standard 5.5.3;
(c) Prudential Standard 5.5.4. 4.
The following provisions of Book 6 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) Prudential Standard 6.7.2;
(b) Prudential Standard 6.7.4;
(c) Prudential Standard 6.7.5;
(d) Prudential Standard 6.8.3.
These Regulations are the Corporations Regulations 1990. REGULATION 1.0.02 INTERPRETATION 1.0.02(1)
In these Regulations, unless the contrary intention appears:
ABN
(Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
agent
means a person appointed under subsection 601CG(1) of the Corporations Law or under a previous corresponding law of the jurisdiction.
approved form
, in relation to a provision of the Corporations Law or of these regulations, means the form that is approved under paragraph 350(b) of the Law for the first-mentioned provision.
benefit fund
has the meaning given by section 16B of the Life Insurance Act 1995.
financial business
means a business that:
(a) consists of, or includes, the provision of financial services; or
(b) relates wholly or partly to the provision of financial services.
form
means an approved form or a prescribed form.
friendly society
has the meaning given by section 16C of the Life Insurance Act 1995.
(a) in relation to a company - the number allotted to the company under paragraph 118(1)(a) or 601BD(1)(a) of the Corporations Law or subregulation 10.1.04(2); or
(b) in relation to a registered body - the number allotted to it under section 601CB or 601CE of the Corporations Law; or
(c) in relation to an auditor or a liquidator (including an official liquidator or a liquidator of a specified body corporate) - the number allotted to a person on registration of that person as an auditor or a liquidator.
superannuation scheme
means a complying superannuation fund within the meaning of section 267 of the Income Tax Assessment Act 1936.
trustee
in relation to a superannuation scheme, includes a person responsible for the administration and management of the scheme.
1.0.02(3)
In these regulations, a reference to a form by number is a reference to the form so numbered in Schedule 2.
REGULATION 1.0.03 APPROVED AND PRESCRIBED FORMS 1.0.03(1)
A form in Schedule 2 mentioned in an item in column 4 of Schedule 1 is prescribed for the provision of the Corporations Law, or of these regulations, that is specified in the item in column 2.
1.0.03(2)
In a form, unless the contrary intention appears, a reference to a Chapter, Part, Division, section, subsection, paragraph or subparagraph is a reference to that Chapter, Part, Division, section, subsection, paragraph or subparagraph of the Corporations Law.
REGULATION 1.0.04 1.0.04 DIRECTIONS AND INSTRUCTIONS IN FORMS
A form must be completed in accordance with the directions and instructions specified in the form. REGULATION 1.0.05 DOCUMENTS AND INFORMATION REQUIRED BY FORMS 1.0.05(1)
If a form requires:
(a) the lodging of a document; or
(b) the giving of information:
(i) by completing the form in the prescribed manner; or
(ii) by supplying or completing another document;
the document or information is taken to be the document or information required for the provision of the Corporations Law or of these regulations for which the form is approved under paragraph 350(b) of the Law or included in Schedule 2.
1.0.05(2)
If the Corporations Law requires particulars to be provided by the giving of information in a form, the particulars included in the form are taken to be the particulars required:
(a) if the form is an approved form - for the provision of the Law, except section 348 or 349, for which the form is approved under paragraph 350(b) of the Law; and
(b) if the form is a prescribed form - for the provision of the Law for which the form is included in Schedule 2.
REGULATION 1.0.06 ANNEXURES ACCOMPANYING FORMS 1.0.06(1)
In this regulation, annexure includes a document that is with a form.
1.0.06(2)
An annexure to a form must:
(a) have an identifying mark; and
(b) be endorsed with the words:
"This is the annexure of (insert the number of pages) pages marked (insert an identifying mark) referred to in the (insert a description of the form) signed by (insert 'me' or 'us') and dated (insert the date of signing)"; and
(c) be signed by each person signing the form to which the document is annexed.
1.0.06(3)
The pages in an annexure must be numbered consecutively.
1.0.06(4)
If a form has a document annexed, the following particulars of the annexure must be written on the form:
(a) the identifying mark; and
(b) the number of pages.
REGULATION 1.0.07 1.0.07 GENERAL REQUIREMENTS FOR DOCUMENTS
Unless ASIC otherwise approves, a document to be lodged must:
(a) be on white or light pastel colour paper:
(i) of international A4 size; and
(ii) of medium weight and good quality; and
(b) be clearly printed or written in black or dark blue in a manner that is permanent and will make possible a reproduction, by photographic, computerised or other electronic means that is satisfactory to ASIC; and
(c) not be a carbon copy or a copy reproduced by any spirit duplication method; and
(d) subject to paragraph (h), have margins of not less than 10 millimetres on all sides; and
(e) if it comprises 2 or more sheets, be fastened together securely in the top left-hand corner; and
(f) display on the first page of the document or, if the document is a single sheet, on that sheet:
(i) the ACN, ARBN or ARSN of the corporation or managed investment scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, ARBN or ARSN - its ABN; and
(ii) the name of the corporation or managed investment scheme; and
(iii) the title of the document; and
(iv) the section number of the Corporations Law under which the document is being lodged; and
(g) have the following information at the top left-hand of the first sheet:
(i) registered agent number (if any); and
(ii) lodging party or agent name; and
(iii) address; and
(iv) telephone number; and
(v) facsimile number (if any); and
(vi) DX number and applicable suburb or city (if any); and
(h) at the top right-hand of the first sheet, have a blank space that measures 35 millimetres from the top of the page and 65 millimetres from the right-hand side of the page; and
(j) if the document is a form relating to a no liability company, be completed by inserting the words "No Liability" in place of the word "Limited"; and
(k) in the case of an unlimited company, have the word "Limited" omitted; and
(l) if the document contains maps or charts on which areas have been distinguished by colour, also distinguish those areas by hatching, numbering or lettering. REGULATION 1.0.08 1.0.08 INFORMATION TO ACCOMPANY FINANCIAL DOCUMENTS LODGED FOR FINANCIAL YEARS
A document lodged under subsection 319(1) of the Corporations Law for a financial year must be accompanied by the approved form setting out the following information:
(a) if the disclosing entity is a company:
(i) the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and
(ii) the dates on which the financial year to which the document relates begins and ends; and
(iii) a statement of certification in accordance with regulation 1.0.16; or
(b) if the disclosing entity is a body (other than a company):
(i) the ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN, the ABN of the body; and
(ii) the dates on which the financial year to which the document relates begins and ends; and
(iii) a statement of certification in accordance with regulation 1.0.16; or
(c) if the disclosing entity is a registered scheme:
(i) the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and
(ii) the dates of the beginning and end of the half-year to which the document relates; and
(iii) the name of the responsible entity of the scheme and the name of the scheme; and
REGULATION 1.0.09 1.0.09 INFORMATION TO ACCOMPANY FINANCIAL DOCUMENTS ETC LODGED FOR HALF-YEARS
(iv) a statement of certification in accordance with regulation 1.0.16.
A document lodged under section 320 of the Corporations Law for a half-year must be accompanied by the approved form setting out the following information:
(a) if the disclosing entity is a company:
(i) the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and
(ii) the dates on which the half-year to which the document relates begins and ends; and
(iii) a statement of certification in accordance with regulation 1.0.16; or
(b) if the disclosing entity is a body (other than a company):
(i) the ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN, the ABN of the body; and
(ii) the dates on which the half-year to which the document relates begins and ends; and
(iii) a statement of certification in accordance with regulation 1.0.16; or
(c) if the disclosing entity is a registered scheme:
(i) the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and
(ii) the dates of the beginning and end of the half-years to which the document relates; and
(iii) the name of the responsible entity of the scheme and thename of the scheme; and
REGULATION 1.0.10 1.0.10 CONTINUOUS DISCLOSURE NOTICES
(iv) a statement of certification in accordance with regulation 1.0.16.
A document lodged under section 1001B of the Corporations Law must be accompanied by Form 1003 setting out the following information:
(a) if the disclosing entity is a body:
(i) the ACN or ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN or ARBN, the ABN of the body; and
(ii) a statement of certification in accordance with regulation 1.0.16; or
(b) if the disclosing entity is a registered scheme:
(i) the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and
(ii) the name of the responsible entity of the scheme and the name of the scheme; and
REGULATION 1.0.11 1.0.11 CERTAIN DOCUMENTS TO BE SIGNED BY PERSONAL REPRESENTATIVES ETC
(iii) a statement of certification in accordance with regulation 1.0.16.
Unless these regulations state otherwise, a document relating to a corporation that is a proprietary company to which section 224A of the Corporations Law applies that does not have a director or secretary must be signed by the personal representative or trustee mentioned in that section. REGULATION 1.0.12 1.0.12 FORM OF NOTICE OF RESOLUTION
A copy of a resolution lodged under subsection 136(5), 157(2), 162(3), 238(1A), 246F(3), 254H(4), 254N(2), 256C(3), 260B(7), 461(2), 491(2), 506(1B), 507(11) or 510(1A) of the Corporations Law must be set out in, or annexed to, a notice in accordance with the approved form. REGULATION 1.0.13 1.0.13 TIME FOR LODGING DOCUMENTS
If:
(a) a document must be lodged; and
(b) the period within which the document must be lodged is not prescribed;
the document must be lodged:
(c) if paragraph (d) does not apply - within one month; or
(d) if the document is to be lodged by a foreign company and ASIC allows a further period because of special circumstances - that further period;
after the happening of the event to which the document relates.
REGULATION 1.0.14 1.0.14 ADDRESS OF REGISTERED OFFICE OR PLACE OF BUSINESSIf notice must be given under these regulations of:
(a) the address of an office or a proposed office; or
(b) the address of a place of business;
of a corporation or a person, the notice must include:
(c) if applicable, the number of the room in which; and
(d) if applicable, the number of the floor or level on which; and
(e) the place in Australia in which;
the office or place of business is, or is to be, situated.
REGULATION 1.0.15 AFFIDAVITS AND STATEMENTS IN WRITING 1.0.15(1)An affidavit or statement in writing must be sworn or made, on behalf of a corporation, by a director or a secretary of the corporation.
1.0.15(2)
If an affidavit is sworn outside Australia, the affidavit is sufficient if it appears to be sworn in accordance with the requirements of the law of that place.
REGULATION 1.0.16 1.0.16 CERTIFICATION AND VERIFICATION OF CERTAIN DOCUMENTS
A document relating to a corporation or managed investment scheme that is to be certified or verified must be certified or verified in the approved form and signed by:
(a) a director or secretary of the corporation, or of the responsible entity of the scheme, who resides in Australia or an external territory; or
(b) an agent of the corporation or entity or, if the agent is a company, a director or secretary of the company who resides in Australia or an external territory. REGULATION 1.0.17 1.0.17 DOCUMENTS SIGNED OR SWORN IN ACCORDANCE WITH THE RULES
A document that is signed, or an affidavit or statement that is sworn or made, in accordance with the rules is taken to have been:
(a) signed in accordance with regulation 1.0.11; or
(b) sworn or made in accordance with regulation 1.0.15;
as the case requires.
REGULATION 1.0.18 1.0.18 PRESCRIBED PROVISIONS (CORPORATIONS LAW S 53)For the purposes of section 53 of the Corporations Law, the following provisions of that law are prescribed:
(a) section 657A;
(b) paragraph (c) of the definition of associate in section 9. REGULATION 1.0.19 CORRESPONDING LAW 1.0.19(1)
For the purposes of subparagraph 58(4)(a)(ii) of the Corporations Law, subsection 37(1A) of the Securities Industry Act 1980 is declared to be a provision of a previous law that corresponds to subsection 771(1) of the Corporations Law.
1.0.19(2)
For the purposes of subparagraph 58(4)(a)(ii) of the Corporations Law, subsection 45(2) of the Futures Industry Act 1986 is declared to be a provision of a previous law that corresponds to subsection 1127(1) of the Corporations Law.
REGULATION 1.0.20 1.0.20 COPIES OF ORDERS TO BE LODGED
A person who obtains an order of the Court under or for the purposes of:
(c) subsection 266(4); or
(d) section 274; or
(e) section 484; or
(f) section 583; or
(g) section 585; or
(h) section 601ND; or
(ha) subsection 1457(2); or
(j) section 1322;
of the Corporations Law, must lodge an office copy of the order with ASIC.
REGULATION 1.0.21 1.0.21 IDENTIFICATION OF LODGED ORDERSIf an order or copy of an order of a court is lodged with ASIC, it must be accompanied by a cover page in Form 105 identifying the legislative provision or other law under which the order was made and the nature of the order. REGULATION 1.0.22 1.0.22 MODIFICATION OF SECURITIES INDUSTRY ACT 1980
For the purposes of section 79 of the Corporations Act 1989, section 36B of the Securities Industry Act 1980 is modified by adding at the end:
PART 1.1 - PRESCRIBED AMOUNTS REGULATION 1.1.01 1.1.01 PRESCRIBED AMOUNTS"(4) Subsection (1) does not prevent the Exchange from transferring its place of incorporation in accordance with section 1362B of the Corporations Law.".
The amount specified in an item in column 3 of Schedule 4 is prescribed in relation to the matter specified in the item in column 2. PART 1.2 - INTERPRETATION Division 1 - Share ratio contracts Subdivision A - Preliminary REGULATION 1.2.01 WHAT IS A SHARE RATIO CONTRACT? 1.2.01(1)
For the purposes of this Part, a share ratio contract is an agreement under which:
(a) a particular person will be under an obligation to pay, or will have a right to receive, an amount of money; and
(b) whether the obligation or right exists will depend on a state of affairs at a future time, where:
(i) the future time is worked out in accordance with the agreement; and
(ii) the state of affairs includes, in particular, a state of affairs relating to fluctuations in the relevant ratio; and
(c) the amount will be calculated in a manner specified in accordance with the agreement by reference to that state of affairs;
whether or not the agreement:
(d) has any other effect; or
(e) may be varied or discharged before that future time.
1.2.01(2)
For the purposes of subparagraph (1)(b)(ii), a relevant ratio is worked out in accordance with the ratio:
P : N
where:
P
is the price or value of a particular share listed for quotation on the Exchange, expressed in cents; and
N
is the relevant level of 1 of the following indexes expressed as a number:
(a) the Australian Stock Exchange All Ordinaries Share Price Index;
(b) the Australian Stock Exchange Fifty Leaders Share Price Index;
(c) the Australian Stock Exchange Twenty Leaders Share Price Index;
(d) the Australian Stock Exchange All Industrials Share Price Index;
(e) the Australian Stock Exchange All Resources Share Price Index;
(f) the Australian Stock Exchange Gold Share Price Index.
Subdivision B - Application of Chapters 6D and 7 of the Corporations Law to share ratio contracts REGULATION 1.2.02 1.2.02 RELEVANT AGREEMENTS - PARAGRAPH 92A(1)(B) OF THE CORPORATIONS LAW
A share ratio contract is prescribed for the purposes of paragraph 92A(1)(b) of the Corporations Law. REGULATION 1.2.03 APPLICATION OF CHAPTER 7 OF THE CORPORATIONS LAW 1.2.03(1)
Subject to subregulation (2) and regulations 1.2.04, 1.2.05 and 1.2.06, Chapter 7 of the Corporations Law applies to share ratio contracts as if:
(a) the contracts were securities; and
(b) a reference to the sale of securities by a person were a reference to the disposal by the person of a share ratio contract; and
(c) a reference to the purchase of securities by a person were a reference to the person:
(i) entering into; or
(ii) taking an assignment of;
a share ratio contract (whether or not on behalf of another person).
Note This subregulation is made under subsection 92A(2) of the Corporations Law.
1.2.03(2)
For the purposes of paragraph (1)(b), a person disposes of a share ratio contract if the person takes, or causes to be taken, action that closes out the share ratio contract (whether the action is taken on behalf of that person or of another person).
1.2.03(3)
In this regulation:
bought position
, in relation to a share ratio contract, means the position where, under the contract, a person has:
(a) if the value of the contract at a particular future time is less, by a particular amount, than the value of the contract at a particular earlier time - an obligation to pay that amount; and
(b) if the value of the contract at a particular future time is greater, by a particular amount, than the value of the contract at a particular earlier time - a right to receive that amount.
close out
, in relation to a share ratio contract, means:
(a) discharge the obligations of the person in the bought position, or sold position, under the share ratio contract as a result of the matching up of the share ratio contract with a share ratio contract of the same kind under which the person has assumed an offsetting sold position, or offsetting bought position, as the case may be; or
(b) otherwise discharge the obligations of a party to the share ratio contract.
sold position
, in relation to a share ratio contract, means the position where, under the contract, a person has:
(a) if the value of the contract at a particular future time is greater, by a particular amount, than the value of the contract at a particular earlier time - an obligation to pay that amount; and
(b) if the value of the contract at a particular future time is less, by a particular amount, than the value of the contract at a particular earlier time - a right to receive that amount.
REGULATION 1.2.04 1.2.04 APPLICATION OF DIVISION 2A OF PART 7.11 OF THE CORPORATIONS LAW TO SHARE RATIO CONTRACTS
Division 2A of Part 7.11 of the Corporations Law applies to a share ratio contract as if:
(a) the definition of securities were omitted from subsection 1002A(1) of the Law; and
(b) the contract were securities of a body corporate, where the shares of that body corporate are the shares to which the contract relates. REGULATION 1.2.05 1.2.05 APPLICATION OF CERTAIN PROVISIONS OF CHAPTER 7 OF THE CORPORATIONS LAW TO SHARE RATIO CONTRACTS
Sections 997, 1001 and 1013 of the Corporations Law apply to a share ratio contract as if the contract were securities of a body corporate, where the shares of that body corporate are the shares to which the contract relates. REGULATION 1.2.06 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW 1.2.06(1)
Chapter 6D of the Corporations Law does not apply to a share ratio contract.
1.2.06(2)
The following provisions of Chapter 7 of the Corporations Law do not apply to a share ratio contract:
(a) sections 775, 842, 843 and 844;
(b) Division 2 of Part 7.4;
(c) Part 7.13.
REGULATION 1.2.07 RESTRICTIONS ON DEALERS IN SHARE RATIO CONTRACTS 1.2.07(1)
In this regulation and in regulation 1.2.08:
deal
, in relation to share ratio contracts, has the meaning that it has under section 9 of the Corporations Law as if the contracts were securities.
1.2.07(2)
The holder of a dealers licence may deal in a share ratio contract on behalf of another person only if:
(a) the holder:
(i) is a member of the Exchange; or
(ii) holds a futures brokers licence; or
(b) ASIC approves, in writing, the holder to deal in those contracts; or
(c) subject to regulation 1.2.09, regulation 8.3.02 applies to the dealing in the contract.
Note The terms dealers licence and futures brokers licence are defined in section 9 of the Corporations Law.
REGULATION 1.2.08 1.2.08 RESTRICTIONS ON SECURITIES LICENSEES IN PROVIDING INVESTMENT ADVICE IN RELATION TO SHARE RATIO CONTRACTS
The holder of a securities licence may:
(a) carry on an investment advice business in relation to a share ratio contract; or
(b) hold himself or herself out as an investment adviser in relation to a share ratio contract;
only if:
(c) the holder:
(i) is a member of the Exchange; or
(ii) holds a futures brokers licence or futures advisers licence; or
(d) ASIC approves, in writing, the holder to carry on that business, or hold himself or herself out as an investment adviser, in relation to that contract; or
(e) subject to regulation 1.2.09, regulation 8.3.02 applies to the dealing in the contract to which the business, or the holding out as an adviser, relates.
Note The terms futures advisers licence , futures brokers licence , investment advice business , investment adviser and securities licence are defined in section 9 of the Corporations Law.
Subdivision C - Application of Chapter 8 of the Corporations Law to share ratio contracts REGULATION 1.2.09 1.2.09 APPLICATION OF PART 8.3 FOR CERTAIN PURPOSESFor the purposes of paragraphs 1.2.07(2)(c) and 1.2.08(e), Part 8.3 of the Corporations Law is taken to apply to a dealing in a share ratio contract, being a dealing of a kind mentioned in either of those paragraphs, as if a reference to a futures brokers licence in subparagraph 8.3.02(2)(a)(ii), (d)(iv), (e)(iii) or (f)(ii) of these regulations were a reference to a dealers licence.
Note The terms dealers licence and futures brokers licence are defined in section 9 of the Corporations Law.
REGULATION 1.2.10 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW 1.2.10(1)Chapter 8 of the Corporations Law, other than the following provisions of that Chapter, does not apply to a share ratio contract:
(a) subject to subregulation (2) - sections 1137, 1138, 1205 to 1208 and 1210;
(b) Part 8.7 (except sections 1258 and 1267).
Note This subregulation is made under subsection 92A(2) of the Corporations Law.
1.2.10(2)
For the purposes of paragraph (1)(a):
(a) section 1207 applies as if paragraph 1207(1)(a) were omitted; and
(b) section 1210 applies as if the words "in the prescribed form" (in subparagraph 1210(a)(iii)) were omitted.
1.2.10(3)
The provisions of Chapter 8 of the Corporations Law specified in paragraphs (1)(a) and (b) apply to a dealing in a share ratio contract as if:
(a) a reference to a futures advice business were a reference to an investment advice business; and
(b) a reference to a futures broker were a reference to a dealer; and
(c) a reference to a futures exchange were a reference to a local stock exchange or an approved securities organisation; and
(d) a reference to a futures market were a reference to a stock market; and
(e) a reference to a clearing house for a futures market or a futures exchange were a reference to a body corporate that provides facilities for the registration of share ratio contracts acquired, or disposed of, on a stock market of a securities exchange.
Subdivision D - Miscellaneous REGULATION 1.2.11 1.2.11 SUBSECTION 93(7) OF THE CORPORATIONS LAW NOT TO APPLY IN CERTAIN CIRCUMSTANCES
Subsection 93(7) of the Corporations Law does not apply, in relation to a share ratio contract, to a person who does an act that constitutes, or does acts that together constitute, a dealing in the contract.
For the purposes of this Division, a deliverable bond futures contract is a standardised agreement under which a person has a Chapter 8 obligation to transfer, or to accept a transfer of, a particular quantity of 3 year, or 10 year, Treasury bonds or a chose in action representing the bonds:
(a) at a particular future time; and
(b) for a particular price, or a price to be calculated in a particular manner.
1.2.12(2)
An agreement is a deliverable bond futures contract:
(a) whether or not the subject matter of the agreement is in existence; and
(b) whether or not the agreement has any other effect; and
(c) whether or not the agreement is capable of being varied or discharged before that future time; and
(d) where it appears likely at the time the agreement is entered into, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the agreement), that:
(i) the Chapter 8 obligation of the person in the sold position under the agreement to transfer bonds in accordance with that agreement will be discharged otherwise than by the person effecting the transfer; or
(ii) the Chapter 8 obligation of the person in the bought position under the agreement to accept transfer of the bonds in accordance with that agreement will be discharged otherwise than by the person accepting the transfer; or
(iii) the person in the sold position, or bought position, under the agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under another agreement of the same kind; and
(e) whether the Chapter 8 obligation of a person in the sold position under the agreement to transfer bonds in accordance with that agreement is discharged by that person, or another person, effecting the transfer; and
(f) whether or not the Chapter 8 obligation referred to in paragraph (e) is discharged by the novation of a chose in action; and
(g) whether or not a person in the bought position under the agreement receives a proprietary interest in a particular bond.
Subdivision B - Application of Chapters 6D and 7 of the Corporations Law to deliverable bond futures contracts REGULATION 1.2.13 1.2.13 PRESCRIBED CHAPTER 8 AGREEMENT
A deliverable bond futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.14 1.2.14 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW
Chapters 6D and 7 of the Corporations Law do not apply to a deliverable bond futures contract. Subdivision C - Application of Chapter 8 of the Corporations Law to deliverable bond futures contracts REGULATION 1.2.15 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW 1.2.15(1)
Subject to subregulation (2), Chapter 8 of the Corporations Law applies in relation to a deliverable bond futures contract as if it were a futures contract.
1.2.15(2)
Where a member of the Reserve Bank Information and Transfer System (known as RITS) transfers bonds which are the subject of a deliverable bond futures contract then, for the purposes of that transfer, Part 8.3 and sections 1206, 1207, 1209, 1210, 1234 and 1235 of the Corporations Law do not apply to that member.
Subdivision D - Modifications of the Corporations Law applying in relation to deliverable bond futures contracts REGULATION 1.2.16 1.2.16 MODIFICATION OF SECTION 9 OF THE CORPORATIONS LAW
Section 9 of the Corporations Law is modified in relation to its application to deliverable bond futures contracts:
(a) by omitting the definition of bought position and substituting:
"bought position
, in relation to a deliverable bond futures contract, means the position where, under the contract, a person has a Chapter 8 obligation to accept a transfer of a particular quantity of 3 year, or 10 year, Treasury bonds, or a chose in action representing the bonds, in accordance with the contract;"; and
(b) by omitting the definition of sold position and substituting:
"sold position
, in relation to a deliverable bond futures contract, means the position where, under the contract, a person has a Chapter 8 obligation to transfer a particular quantity of 3 year, or 10 year, Treasury bonds, or a chose in action representing the bonds, in accordance with the contract;".
Note For the definitions of other terms used in this Division, see section 9 of the Corporations Law.
Division 3 - Futures options over deliverable bond futures contracts Subdivision A - Preliminary REGULATION 1.2.17 1.2.17 WHAT IS A FUTURES OPTION OVER A DELIVERABLE BOND FUTURES CONTRACT?For the purposes of this Division:
(a) a futures option over a deliverable bond futures contract is an option, or a Chapter 8 right, to assume a bought position, or a sold position, in relation to the contract:
(i) at a specified price or value; and
(ii) within a specified period; and
(b)
deliverable bond futures contract
has the same meaning as in Division 2 of this Part.
A futures option over a deliverable bond futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.19 1.2.19 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW
Chapters 6D and 7 of the Corporations Law do not apply to a futures option over a deliverable bond futures contract. Subdivision C - Application of Chapter 8 of the Corporations Law to futures options over deliverable bond futures contracts REGULATION 1.2.20 1.2.20 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW
Chapter 8 of the Corporations Law applies in relation to a futures option over a deliverable bond futures contract as if it were a futures contract.
Note For the definitions of terms used in this Division, see section 9 of the Corporations Law.
Division 4 - Deliverable share futures contracts Subdivision A - Preliminary REGULATION 1.2.21 WHAT IS A DELIVERABLE SHARE FUTURES CONTRACT? 1.2.21(1)For the purposes of this Division, a deliverable share futures contract is a standardised agreement under which a person has a Chapter 8 obligation to transfer, or to accept a transfer of, a particular quantity of shares of a listed corporation:
(a) at a particular future time; and
(b) for a particular price, or a price to be calculated in a particular manner.
1.2.21(2)
An agreement is a deliverable share futures contract:
(a) whether or not the subject matter of the agreement is in existence; and
(b) whether or not the agreement has any other effect; and
(c) whether or not the agreement is capable of being varied or discharged before that future time; and
(d) where it appears likely at the time the agreement is entered into, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the agreement), that:
(i) the Chapter 8 obligation of the person in the sold position under the agreement to transfer shares in accordance with that agreement will be discharged otherwise than by the person effecting the transfer; or
(ii) the Chapter 8 obligation of the person in the bought position under the agreement to accept transfer of the shares in accordance with that agreement will be discharged otherwise than by the person accepting the transfer; or
(iii) the person in the sold position, or bought position, under the agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under another agreement of the same kind; and
(e) whether the Chapter 8 obligation of a person in the sold position under the agreement to transfer shares in accordance with that agreement is discharged by that person, or another person, effecting the transfer.
Subdivision B - Application of Chapters 6D and 7 of the Corporations Law to deliverable share futures contracts REGULATION 1.2.22 1.2.22 PRESCRIBED CHAPTER 8 AGREEMENT
A deliverable share futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.23 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW 1.2.23(1)
Chapter 6D of the Corporations Law does not apply to a deliverable share futures contract.
1.2.23(2)
Chapter 7 of the Corporations Law, except Part 7.2A, subsection 979(1) (as modified by regulation 1.2.26), sections 995 and 998, Division 2A of Part 7.11, Part 7.13 and section 1114, does not apply to a deliverable share futures contract.
1.2.23(3)
However, Part 7.10 of the Corporations Law applies if a claim does not relate directly to a transfer of shares between the person in the bought position and the person in the sold position under a deliverable share futures contract.
Note For example, it is intended that if a dealer fraudulently or negligently uses shares held for a client to settle another client's deliverable share futures contract, the first-mentioned client may make a claim under Pt 7.10.
Subdivision C - Application of Chapter 8 of the Corporations Law to deliverable share futures contracts REGULATION 1.2.24 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW 1.2.24(1)
Subject to subregulation (2), Chapter 8 of the Corporations Law applies in relation to a deliverable share futures contract as if it were a futures contract.
1.2.24(2)
Where a SCH participant deals in shares which are the subject of a deliverable share futures contract then, for the purposes of that dealing, Part 8.3 and sections 1206, 1207, 1209, 1210, 1234 and 1235 of the Corporations Law do not apply to that participant.
Subdivision D - Modifications of the Corporations Law applying in relation to deliverable share futures contracts REGULATION 1.2.25 1.2.25 MODIFICATION OF SECTION 9 OF THE CORPORATIONS LAW
Section 9 of the Corporations Law is modified in relation to its application to deliverable share futures contracts:
(a) by omitting the definition of bought position and substituting:
"bought position
, in relation to a deliverable share futures contract, means the position where, under the contract, a person has a Chapter 8 obligation to accept a transfer of shares in accordance with the contract;"; and
(b) by omitting the definition of sold position and substituting:
REGULATION 1.2.26 1.2.26 MODIFICATION OF SUBSECTION 979(1) OF THE CORPORATIONS LAW"sold position
, in relation to a deliverable share futures contract, means the position where, under the contract, a person has a Chapter 8 obligation to transfer shares in accordance with the contract;".
Subsection 979(1) of the Corporations Law is modified, in its application to a deliverable share futures contract, by omitting all words after "The Board may" and substituting "seek the assistance of the Sydney Futures Exchange to determine whether a claim against SEGC relates to a deliverable share futures contract.". REGULATION 1.2.27 1.2.27 MODIFICATION OF DIVISION 1 OF PART 8.7 OF THE CORPORATIONS LAW
In spite of section 1251 of the Corporations Law, for the purposes of sections 1252 to 1257 (inclusive) of the Corporations Law, a deliverable share futures contract concerns a body corporate if the contract relates to shares of the body corporate.
Note For the definitions of other terms used in this Division, see section 9 of the Corporations Law.
Division 5 - Futures options over deliverable share futures contracts Subdivision A - Preliminary REGULATION 1.2.28 1.2.28 WHAT IS A FUTURES OPTION OVER A DELIVERABLE SHARE FUTURES CONTRACT?For the purposes of this Division:
(a) a futures option over a deliverable share futures contract is an option, or a Chapter 8 right, to assume a bought position, or a sold position, in relation to the contract:
(i) at a specified price or value; and
(ii) within a specified period; and
(b)
deliverable share futures contract
has the same meaning as in Division 4 of this Part.
A futures option over a deliverable share futures contract is prescribed for the purposes of paragraph 72A(1)(b) of the Corporations Law. REGULATION 1.2.30 APPLICATION OF CHAPTERS 6D AND 7 OF THE CORPORATIONS LAW 1.2.30(1)
Chapter 6D of the Corporations Law does not apply to a futures option over a deliverable share futures contract.
1.2.30(2)
Chapter 7, except Division 2A of Part 7.11, of the Corporations Law does not apply to a futures option over a deliverable share futures contract.
Subdivision C - Application of Chapter 8 of the Corporations Law to futures options over deliverable share futures contracts REGULATION 1.2.31 1.2.31 APPLICATION OF CHAPTER 8 OF THE CORPORATIONS LAW
Chapter 8 of the Corporations Law applies in relation to a futures option over a deliverable share futures contract as if it were a futures contract. Subdivision D - Modifications of the Corporations Law applying in relation to futures options over deliverable share futures contracts REGULATION 1.2.32 1.2.32 MODIFICATION OF DIVISION 1 OF PART 8.7 OF THE CORPORATIONS LAW
In spite of section 1251 of the Corporations Law, for the purposes of sections 1252 to 1257 (inclusive) of the Corporations Law, a futures option over a deliverable share futures contract concerns a body corporate if the contract relates to shares of the body corporate.
Note For the definitions of terms used in this Division, see section 9 of the Corporations Law.
PART 1.2A - DISCLOSING ENTITIES REGULATION 1.2A.01 1.2A.01 SECURITIES DECLARED NOT TO BE ED SECURITIESFor the purposes of section 111AJ of the Corporations Law, securities:
(a) of a body that, under the listing rules of the Australian Stock Exchange Limited, is an exempt foreign entity; or
(b) that are quoted on Australian Bloodstock Exchange Limited;
are declared not to be ED securities.
REGULATION 1.2A.02 FOREIGN COMPANIES ISSUING SECURITIES UNDER FOREIGN SCRIP OFFERS ETC EXEMPT FROM DISCLOSING ENTITY PROVISIONS 1.2A.02(1)For the purposes of section 111AS of the Corporations Law, a foreign company is exempt from the disclosing entity provisions in respect of ED securities under section 111AG of the Law if:
(a) the company issues the securities in connection with a foreign takeover bid or foreign scheme of arrangement; and
(b) the securities issued are, at the time of issue, securities in a class of securities quoted on an approved foreign exchange; and
(c) the terms and conditions of the issue to citizens and Australian permanent residents are the same as those applying to each other person receiving securities that are in the same class; and
(d) the same notices, documents or other information (or, where applicable, an English translation of these) (modified, if necessary, to include any additional information for the purposes of complying with Chapter 6D of the Corporations Law) are given to Australian citizens or permanent residents as are given to each other person; and
(e) the notices, documents and other information are given to Australian citizens and permanent residents at the same time, or as soon as practicable after, they are given to those other persons; and
(f) in relation to the issue - the company complies with all legislative and stock exchange requirements in the place in which is located:
(i) the approved foreign exchange; or
(ii) if more than one - the principal approved exchange;
on which the company's securities are quoted.
1.2A.02(2)
In this regulation:
approved foreign exchange
includes:
(a) American Stock Exchange Inc.;
(b) New York Stock Exchange Inc.;
(c) New Zealand Stock Exchange;
(d) The Stock Exchange of Hong Kong Ltd;
(e) Stock Exchange of Singapore Limited;
(f) The Amsterdam Stock Exchange;
(g) the Frankfurt Stock Exchange;
(h) The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited;
(i) the Milan Stock Exchange;
(j) the NASDAQ National Market;
(k) the Paris Bourse;
(l) the Tokyo Stock Exchange;
(m) the Toronto Stock Exchange;
(n) the Zurich Stock Exchange.
foreign scheme of arrangement
means a compromise or arrangement that is subject to court approval under subsection 411(6) of the Corporations Law, between:
(a) a foreign company and a class of its creditors; or
(b) a foreign company and a class of its members.
foreign takeover bid
means a bid to acquire some or all of the securities of:
(a) all holders of a class of securities of a foreign company; or
(b) all holders of those securities except the bidder or the bidder and associates of the bidder.
REGULATION 1.2A.03 FOREIGN COMPANIES ISSUING SECURITIES UNDER EMPLOYEE SHARE SCHEME EXEMPT FROM THE DISCLOSING ENTITY PROVISIONS 1.2A.03(1)
For the purposes of section 111AS of the Corporations Law, a foreign company is exempt from the disclosing entity provisions in respect of an offer of shares in the company for issue or sale:
(a) that is made to employees of the company, or of an associated body corporate, under an employee share scheme; and
(b) in relation to which a disclosure document is lodged with ASIC.
1.2A.03(2)
Subregulation (1) is not affected by any action of an employee, the result of which is that another person who is not an employee acquires an interest in a share issued under the employee share scheme.
1.2A.03(3)
In this regulation:
(a) an employee share scheme is a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company only to a person who is a full-time or part-time director or employee of the company or of an associated body corporate when the offer is made; and
(b) a body corporate is an associated body corporate in relation to a foreign company if:
(i) the body corporate is related to the company within the meaning of section 50 of the Corporations Law; or
(ii) the body corporate is entitled to at least 20% of the voting shares of the company; or
(iii) the company is entitled to at least 20% of the voting shares of the body corporate.
CHAPTER 2B - BASIC FEATURES OF A COMPANY PART 2B.6 - NAMES REGULATION 2B.6.01 AVAILABILITY OF NAMES (CORPORATIONS LAW, S 147) 2B.6.01(1)
For paragraphs 147(1)(a) and (b) of the Corporations Law, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.
2B.6.01(2)
For paragraph 147(1)(c) of the Corporations Law, a name is unacceptable for registration under the regulations if it is unacceptable under the rules set out in Part 2 of Schedule 6.
REGULATION 2B.6.02 CONSENTS REQUIRED FOR USE OF CERTAIN LETTERS, WORDS AND EXPRESSIONS 2B.6.02(1)
This regulation applies to a name if:
(a) the name:
(i) is the subject of an application for registration of a name under section 117 of the Corporations Law; or
(ii) is the subject of an application for reservation of a name under section 152 of that Law; or
(iii) for an application for a change of name under section 157 of the Law - is the name to which the previous name is to be changed; and
(b) the name is, uses or includes:
(i) letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or
(ii) other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.
2B.6.02(2)
In paragraph (1)(b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:
(a) as part of another word or expression; or
(b) in combination with other words or letters, or other symbols.
2B.6.02(3)
However, this regulation does not apply to use of the letters ADI as part of another word.
Example
The letters adi appear in the word traditional . This regulation does not apply to use of the word traditional .
2B.6.02(4)
If an item in Part 4 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the Minister who is specified in the item.
2B.6.02(5)
If an item in Part 5 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.
REGULATION 2B.6.03 2B.6.03 EXEMPTIONS FROM REQUIREMENT TO SET OUT NAME AND ACN ON CERTAIN DOCUMENTS (CORPORATIONS LAW, S 155)
For section 155 of the Corporations Law, the exemptions provided for in Schedule 7 apply in relation to the requirements of subsection 153(2) of the Law. CHAPTER 2C - REGISTERS REGULATION 2C.1.01 2C.1.01 SECURITIES EXCHANGE (CORPORATIONS LAW, S 170(3))
For the purposes of subsection 170(3) of the Corporations Law, securities exchange means one of the following:
(a) Australian Stock Exchange Limited;
(b) The Ballarat Stock Exchange;
(c) The Bendigo Stock Exchange;
(d) The Stock Exchange of Newcastle Limited. REGULATION 2C.1.02 2C.1.02 FORM OF NOTICE (CORPORATIONS LAW, S 172(2))
A notice to be lodged under subsection 172(2) of the Corporations Law must be in the approved form. CHAPTER 2D - OFFICERS REGULATION 2D.1.02 2D.1.02 SECURITIES EXCHANGE (CORPORATIONS LAW S 205G)
For the purposes of subsection 205G(1) of the Corporations Law, securities exchange means one of the following:
(a) Australian Stock Exchange Limited;
(b) The Bendigo Stock Exchange;
(c) The Stock Exchange of Newcastle Limited. CHAPTER 2K - CHARGES PART 2K.2 - REGISTRATION REGULATION 2K.2.01 2K.2.01 LIEN OR CHARGE ON CROP, WOOL OR STOCK MORTGAGE THAT IS A REGISTRABLE SECURITY: PRESCRIBED LAW
For the purposes of subsection 262(5) of the Corporations Law, each of the following laws is a prescribed law of a State or Territory:
| NEW SOUTH WALES |
| Parts II and III of the Liens on Crops and Wool and Stock Mortgages Act 1898 |
| VICTORIA |
| Parts VII and VIII of the Instruments Act 1958 |
| QUEENSLAND |
| Part II (being provisions that apply in relation to registration of instruments that are stock mortgages, liens upon crops and liens on wool) and Part IV (other than section 24) of the Bills of Sale and Other Instruments Act 1955 |
| The Liens on Crops of Sugar Cane Act 1931 |
| WESTERN AUSTRALIA |
| Sections 7 and 8 and Parts IX, X and XI of the Bills of Sale Act 1899 |
| SOUTH AUSTRALIA |
| Liens on Fruit Act, 1923 |
| Stock Mortgages and Wool Liens Act, 1924 |
| TASMANIA |
| Sections 36 of the Bills of Sale Act 1900 |
| Stock, Wool and Crop Mortgages Act 1930 |
| AUSTRALIAN CAPITAL TERRITORY |
| Parts IV and V of the Instruments Act 1933. |
For the purposes of paragraph 265(5)(b) of the Corporations Law, the period in which a certificate must be produced to ASIC, being a certificate:
(a) to the effect set out in paragraph 265(4)(b) of the Law; and
(b) that relates to a notice, in respect of a charge on property of a company, that was lodged under section 263 or 264 of the Law at any time on or after the day commencing 30 days before the commencement of this regulation;
is 90 days after the notice is lodged.
REGULATION 2K.2.03 2K.2.03 REGISTRATION UNDER OTHER LEGISLATION RELATING TO CHARGES: PRESCRIBED MATTERS UNDER SECTION 273 OF THE CORPORATIONS LAWFor the purposes of subsection 273(1) of the Corporations Law, the prescribed time is the date of commencement of section 273 of the Law. CHAPTER 2M - FINANCIAL REPORTS AND AUDIT PART 2M.3 - FINANCIAL REPORTING REGULATION 2M.3.01 FINANCIAL STATEMENTS - PRESCRIBED REQUIREMENTS (CORPORATIONS LAW, S 296(2)) 2M.3.01(1)
For subsection 296(2) of the Corporations Law, the financial report must comply:
(a) for a financial year commencing on or after 1 January 1991 and ending before 15 May 1997 - with the requirements set out in Schedule 5; and
(b) for a financial year commencing on or after 1 January 1991 and ending on or after 15 May 1997 but before 30 June 1997 with the requirements set out:
(i) in the applicable accounting standards; or
(ii) in Schedule 5.
2M.3.01(2)
Subregulation (1) does not apply to a half-year accounting period of a disclosing entity unless the entity is a borrower in relation to debentures.
PART 2M.4 - AUDITOR REGULATION 2M.4.01 2M.4.01 NOTICE OF APPOINTMENT OF AUDITORS
The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC of the appointment by the entity of an auditor of the scheme under section 331AB of the Corporations Law within 14 days of the appointment. PART 2M.6 - MODIFICATION OF THE OPERATION OF CHAPTER 2M OF THE CORPORATIONS LAW REGULATION 2M.6.01 2M.6.01 MODIFICATIONS (CORPORATIONS LAW, S 343)
For section 343 of the Corporations Law, the operation of Chapter 2M of the Law is modified in accordance with this Part. REGULATION 2M.6.02 SPECIFIC EXEMPTION AND CLASS ORDERS - CERTAIN CORPORATIONS (CORPORATIONS LAW, PART 2M.6) 2M.6.02(1)
In this regulation:
(a) a company that is a wholly-owned subsidiary of a body corporate; or
(b) an Australian bank and each related body corporate; or
(c) BNP Pacific (Australia) Limited and each related body corporate; or
(d) Orix Australia Corporation Limited and each related body corporate.
2M.6.02(2)
Part 2M.6 of the Corporations Law has effect in relation to a prescribed corporation as if the references in sections 340, 341 and 342 of the Law to Parts 2M.2 and 2M.3 of the Law included a reference to Part 2M.4 of the Law.
REGULATION 2M.6.03 2M.6.03 FINANCIAL REPORTING - AUSTRALIAN BANKS AND LIFE OFFICES
The operation of Chapter 2M of the Corporations Law in relation to financial reporting in respect of Australian banks and life offices is modified in accordance with Schedule 5A. CHAPTER 5B - BODIES CORPORATE REGISTERED AS COMPANIES, AND REGISTRABLE BODIES PART 5B.2 - REGISTRABLE BODIES REGULATION 5B.2.01 5B.2.01 CERTIFIED COPIES OF CERTIFICATES OF INCORPORATION ETC
For the purposes of paragraphs 601CB(a) and 601CE(a) of the Corporations Law, a certified copy of a current certificate of the incorporation or registration in its place of origin of:
(a) a registrable Australian body; or
(b) a foreign company;
or a document of similar effect, that is lodged for registration under Division 1 or 2 of Part 5B.2 of the Law, must be a copy that:
(c) within the period of 3 months immediately preceding the day on which it is lodged; or
(d) if ASIC permits - within a longer period;
has been certified to be a true copy by a person:
(e) to whom the custody of the original document is committed under a law in force in the place of origin of the corporation or company; and
(f) being a person who exercises under that law functions similar to those exercised by ASIC. REGULATION 5B.2.02 5B.2.02 MANNER OF CERTIFYING CONSTITUENT DOCUMENTS
For the purposes of paragraphs 601CB(b) and 601CE(b) of the Corporations Law, a certified copy of a constitution of:
(a) a registrable Australian body; or
(b) a foreign company;
must be a copy that:
(c) within the period of 3 months immediately preceding the day on which it is lodged; or
(d) if ASIC permits - a longer period;
has been certified to be a true copy:
(e) by a person:
(i) to whom the custody of the original document is committed under a law in force in the place of origin of the corporation or company; and
(ii) who exercises under that law functions similar to those exercised by ASIC; or
(f) by a notary public; or
(g) by a director or secretary of the body:
(i) if the body is a registrable Australian body - by a statement in writing; or
REGULATION 5B.2.03 5B.2.03 MANNER OF SENDING LETTERS (CORPORATIONS LAW, SS 601CC(2) AND 601CL(3))
(ii) if the body is a foreign company - by affidavit.
For the purposes of subsections 601CC(2) and 601CL(3) of the Corporations Law, a letter must be sent by post. REGULATION 5B.2.04 5B.2.04 MANNER OF SENDING NOTICES (CORPORATIONS LAW, SS 601CC(3) AND 601CL(4))
For the purposes of subsections 601CC(3) and 601CL(4) of the Corporations Law, a notice must be sent by prepaid certified mail. REGULATION 5B.2.05 5B.2.05 BALANCE SHEETS AND OTHER DOCUMENTS
The following particulars are prescribed for the purposes of Form 406 in relation to a return required under subsection 601CK(9) of the Corporations Law:
(a) the name of the company lodging the return;
(b) the day, month and year of the annual general meeting up to which the return is made;
(c) the address of the company's registered office in Australia, including, on separate lines:
(i) a statement that the company is an exempt foreign company;
(ii) the floor number and the name of the unit, office or building;
(iii) the street number and name;
(iv) the suburb, city, country and postcode;
(d) the amount of the authorised share capital of the company;
(e) the amount of paid up capital of the company;
(f) for each director of the company who is a natural person:
(i) his or her full name;
(ii) his or her residential address, including, on separate lines:
(A) the floor number and the name of the unit, office or building;
(B) the street number and name;
(C) the suburb, city, country and postcode;
(g) for each director of the company that is a body corporate:
(i) the body's full name;
(ii) the body's address, including, on separate lines:
(A) the floor number and the name of the unit, office or building;
(B) the street number and name;
(C) the suburb, city, country and postcode;
(h) for the agent of the company in Australia:
(i) his or her full name;
(ii) his or her residential address, including, on separate lines:
(A) the floor number and the name of the unit, office or building;
(B) the street number and name;
(C) the suburb, city, country and postcode;
(i) a statement that the company is an exempt foreign company;
(j) the signature of a director, a secretary or the agent of the company;
(k) identification of the person who signed the return and the date on which it was signed;
(l) a certificate, signed and dated by the agent of the company, that the provisions of the Corporations Law relating to unclaimed moneys have been complied with in relation to the company. REGULATION 5B.2.06 NOTICES (CORPORATIONS LAW, S 601CV(1)) 5B.2.06(1)
A notice in writing of a change of name in accordance with paragraph 601CV(1)(a) of the Corporations Law, must have annexed to it:
(a) a copy of the certificate of incorporation or registration of the registered body, or a document of similar effect, being a certificate or document evidencing the change; or
(b) if no certificate or document of that kind exists - a copy of the instrument effecting the change;
being a copy that is certified by a person mentioned in paragraph 5B.2.02(e), (f) or (g) to be a true copy of that certificate, document or instrument.
5B.2.06(2)
A notice in writing of a change in a constitution or other document, in accordance with paragraph 601CV(1)(b) of the Corporations Law, must have annexed to it a copy of the instrument effecting the change or a copy of the document as changed, being a copy that is certified to be a true copy of that instrument or document by a person mentioned in paragraph 5B.2.02(e), (f) or (g).
5B.2.06(3)
A notice in writing of a change in director's powers, in accordance with subparagraph 601CV(1)(d)(i) of the Corporations Law, must have with it a memorandum in writing executed by or on behalf of the foreign company after a change in those powers stating the powers of its directors as changed.
PART 5B.3 - NAMES OF REGISTRABLE AUSTRALIAN BODIES AND FOREIGN COMPANIES REGULATION 5B.3.01 AVAILABILITY OF NAMES (CORPORATIONS LAW, S 601DC) 5B.3.01(1)
For paragraphs 601DC(1)(a) and (b) of the Corporations Law, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.
5B.3.01(2)
For paragraph 601DC(1)(c) of the Corporations Law, a name is unacceptable for registration under the regulations if the name is unacceptable under the rules set out in Part 2 of Schedule 6.
REGULATION 5B.3.02 CONSENTS REQUIRED FOR USE OF CERTAIN LETTERS, WORDS AND EXPRESSIONS 5B.3.02(1)
This regulation applies to a name if:
(a) the name:
(i) is the subject of an application for registration of a name under section 601BC, 601CB or 601CE of the Corporations Law; or
(ii) is the subject of an application for reservation of a name under section 601DA of that Law; or
(iii) for a notice of change of name under section 601DH of the Law - is the name to which the previous name is to be changed; and
(b) the name is, uses or includes:
(i) letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or
(ii) other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.
5B.3.02(2)
In paragraph (1)(b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:
(a) as part of another word or expression; or
(b) in combination with other words or letters, or other symbols.
5B.3.02(3)
However, this regulation does not apply to use of the letters ADI as part of another word.
Example
The letters adi appear in the word traditional . This regulation does not apply to use of the word traditional .
5B.3.02(4)
If an item in Part 4 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the Minister who is specified in the item.
5B.3.02(5)
If an item in Part 5 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.
REGULATION 5B.3.03 5B.3.03 EXEMPTIONS FROM REQUIREMENT TO SET OUT ARBN ETC ON CERTAIN DOCUMENTS (CORPORATIONS LAW, S 601DG)
For section 601DG of the Corporations Law, the exemptions provided for in Schedule 7 apply in relation to the requirements of paragraphs 601DE(1)(b), (c) and (d) of the Law. CHAPTER 5C - MANAGED INVESTMENT SCHEMES PART 5C.1 - REGISTRATION OF MANAGED INVESTMENT SCHEMES REGULATION 5C.1.01 APPLYING FOR REGISTRATION 5C.1.01(1)
An application under section 601EA of the Corporations Law to register a managed investment scheme must be in the approved form.
5C.1.01(2)
The form must state the name of the managed investment scheme.
5C.1.01(3)
The stated name must not be the same as the name of:
(a) another managed investment scheme that is the subject of an application for registration that is lodged but not yet determined; or
(b) a registered scheme.
5C.1.01(4)
A statement made for paragraph 601EA(4)(c) of the Corporations Law must be in the approved form.
REGULATION 5C.1.02 CHANGE OF NAME OF REGISTERED SCHEMES 5C.1.02(1)
To change the name of a registered scheme, the responsible entity of the scheme must lodge a notice in the approved form stating the proposed name of the scheme.
5C.1.02(2)
The stated name must not be the same as the name of:
(a) another managed investment scheme that is the subject of an application for registration under section 601EB of the Corporations Law that is lodged but not yet determined; or
(b) a registered scheme.
5C.1.02(3)
On application in accordance with this regulation, ASIC must amend the record of the registration of the scheme to include the name of the scheme as proposed to be amended.
REGULATION 5C.1.03 MODIFICATION (CORPORATIONS LAW S 601QB) 5C.1.03(1)
For the purposes of section 601QB of the Corporations Law, the operation of Chapter 5C of the Law is modified in accordance with this regulation.
5C.1.03(2)
If:
(a) a managed investment scheme is registered under section 601EB of the Corporations Law; and
(b) the managed investment scheme is also registered on the Australian Business Register; and
(c) the last 9 digits of the ABN of the registered scheme are the same, and in the same order, as the last 9 digits of its ARSN; and
(d) a document relating to the scheme is lodged with ASIC, and displays that ABN;
section 601EC of the Law does not apply to the document.
PART 5C.2 - THE RESPONSIBLE ENTITY REGULATION 5C.2.01 5C.2.01 DUTY OF RESPONSIBLE ENTITIES' AGENTS - SURVEILLANCE CHECKS
The agent of a responsible entity must take all reasonable steps to assist the entity and ASIC when ASIC is conducting a check whether the entity is complying with the constitution and compliance plan of a registered scheme and with the Corporations Law. REGULATION 5C.2.02 5C.2.02 APPOINTMENT OF TEMPORARY RESPONSIBLE ENTITIES
ASIC, or a member of a registered scheme, may apply to the Court for the appointment of a temporary responsible entity of the scheme if ASIC or member reasonably believes that the appointment is necessary to protect scheme property or the interests of members of the scheme. REGULATION 5C.2.03 5C.2.03 FORM OF NOTICES (CORPORATIONS LAW, SS 601FL(2) AND 601FM(2))
A notice to be lodged under subsection 601FL(2) or 601FM(2) of the Corporations Law must be in the approved form. REGULATION 5C.2.04 5C.2.04 NOTICE OF APPOINTMENT OF TEMPORARY RESPONSIBLE ENTITIES
As soon as practicable after the Court appoints a temporary responsible entity for a registered scheme on application by a member of the scheme under section 601FN of the Corporations Law, the member must lodge a notice in the approved form that tells ASIC of the appointment. REGULATION 5C.2.05 5C.2.05 FORM OF NOTICES (CORPORATIONS LAW, S 601FP(3))
A notice to be lodged under subsection 601FP(3) of the Corporations Law must be in the approved form. PART 5C.4 - THE COMPLIANCE PLAN REGULATION 5C.4.01 5C.4.01 AGENTS' AUTHORITIES TO BE LODGED
If a compliance plan, or modification of a plan, lodged with ASIC under section 601HC or subsection 601HE(3) of the Corporations Law is signed by an agent of the directors of the responsible entity of the registered scheme to which the plan relates, the authority to do so, or a copy of the authority verified by a director of the entity, must be attached to the plan or modification. REGULATION 5C.4.02 5C.4.02 AGENTS TO ASSIST AUDITORS OF COMPLIANCE PLANS
An agent of the responsible entity of a registered scheme, and an officer of the agent, must:
(a) allow the auditor of the scheme's compliance plan to have access to the books of the scheme; and
(b) if the auditor requires the agent or entity to give the auditor information or an explanation for the audit - give the information or explanation to the auditor; and
(c) otherwise assist the conduct of the audit. PART 5C.5 - THE COMPLIANCE COMMITTEE REGULATION 5C.5.01 RESPONSIBLE ENTITIES ETC TO ASSIST COMPLIANCE COMMITTEES 5C.5.01(1)
This regulation applies to a person who is the responsible entity of a registered scheme, an officer of the entity, an agent of the entity or an officer of the agent.
5C.5.01(2)
The person must:
(a) allow the compliance committee to have access to the books of the scheme; and
(b) if the committee requires the person to give the committee information or an explanation about the scheme - give the information or explanation to the committee; and
(c) otherwise assist the committee in the performance of its functions.
PART 5C.9 - WINDING UP REGULATION 5C.9.01 5C.9.01 NOTICE OF COMMENCEMENT OF WINDING UP
The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC that winding up of the scheme has commenced, or been completed, within 14 days of the commencement or completion. PART 5C.11 - EXEMPTIONS AND MODIFICATIONS Division 1 - Exemptions REGULATION 5C.11.01 5C.11.01 CERTAIN FUNDS NOT MANAGED INVESTMENT FUNDS
For paragraph (n) of the definition of managed investment scheme in section 9 of the Corporations Law, an approved benefit fund within the meaning of section 16B of the Life Insurance Act 1995 is not a managed investment scheme. Division 2 - Modifications REGULATION 5C.11.02 5C.11.02 MODIFICATIONS
For section 601QB of the Corporations Law, the operation of the Law is modified in accordance with this Division. REGULATION 5C.11.03 5C.11.03 REGISTER OF MEMBERS OF REGISTERED SCHEMES (CORPORATIONS LAW, S 169(1))
The register of members of a registered scheme need not contain information about a member whose only interest in the scheme is as the holder of an option. REGULATION 5C.11.04 5C.11.04 NAMES OF REGISTERED SCHEMES (CORPORATIONS LAW, S 601EB(1))
ASIC must not register a managed investment scheme if the name of the scheme stated under subregulation 5C.1.01(2) does not comply with subregulation 5C.1.01(3). REGULATION 5C.11.05 5C.11.05 RELATED PARTIES - FINANCIAL BENEFITS (CORPORATIONS LAW, S 243J(1))
Subsection 243J(1) of the Corporations Law has effect in relation to a registered scheme as if the reference to the day on and after which section 243H of the Law applies to the responsible entity of the scheme because of section 1376 of the Law were a reference to the commencement of this regulation. REGULATION 5C.11.05A 5C.11.05A SCHEMES NOT REQUIRED TO BE REGISTERED (CORPORATIONS LAW S 601ED)
Subsection 601ED(2) of the Corporations Law has effect as if a managed investment scheme does not have to be registered if all the issues of interests in the scheme that have been made would not have needed disclosure to investors under Part 6D.2 of the Law if the scheme had been registered when the issues were made. REGULATION 5C.11.06 5C.11.06 LIABILITY OF RESPONSIBLE ENTITIES (CORPORATIONS LAW, S 601FB(4))
In determining the liability under subsection 601FB(2) of the Corporations Law of the responsible entity of a registered scheme to the members of the scheme for an act or omission of an agent appointed by the entity under that subsection, the amount recovered under subsection 601FB(4) of the Law is to be disregarded. REGULATION 5C.11.08 5C.11.08 TRUSTEES ETC NOT LIABLE IN CERTAIN CIRCUMSTANCES (CORPORATIONS LAW, S 1463)
The trustee, representative or management company is not liable in a civil action or civil proceeding for deciding to retire, or giving a retirement notice, under section 1455 of the Corporations Law. CHAPTER 5 - EXTERNAL ADMINISTRATION PART 5.1 - ARRANGEMENTS AND RECONSTRUCTIONS REGULATION 5.1.01 PRESCRIBED INFORMATION FOR THE PURPOSES OF PARAGRAPH 411(3)(b) AND SUBPARAGRAPH 412(1)(a)(ii) OF THE CORPORATIONS LAW 5.1.01(1)
For the purposes of paragraph 411(3)(b) and subparagraph 412(1)(a)(ii) of the Corporations Law, unless ASIC otherwise allows, the explanatory statement must:
(a) for a proposed arrangement between a Part 5.1 body and its creditors, or a class of its creditors:
(i) state the matters set out; and
in Part 2 of Schedule 8; and
(ii) have annexed to it the reports and copies of documents referred to;
(b) for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, other than a proposed arrangement referred to in paragraph (c):
(i) state the matters set out; and
in Part 3 of Schedule 8; and
(ii) have annexed to it the reports and copies of documents referred to;
(c) for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, in relation to the reconstruction of a corporation, or the amalgamation of 2 or more corporations, if:
(i) the whole or part of the undertaking or of the property of a corporation is to be transferred to a trustee to be held beneficially on behalf of the unit holders of the trust; or
(ii) the shares in the corporation that are held by members are to be cancelled and control is to pass to a trustee to be held on behalf of a unit holder of the trust;
state the matters set out and have annexed to it the documents and, if the trustee of that business operates no other business in relation to that trust, the reports referred to, in Part 4 of Schedule 8.
5.1.01(2)
For the purposes of Schedule 8, securities exchange means Australian Stock Exchange Limited.
REGULATION 5.1.02 5.1.02 GIVING NOTICE UNDER SUBSECTION 414(2) OR (9) OF THE CORPORATIONS LAW
A notice under subsection 414(2) or (9) of the Corporations Law must be given to a person:
(a) by personal delivery; or
(b) by prepaid post to the person's address shown in the books of the transferor company. PART 5.2 - RECEIVERS, AND OTHER CONTROLLERS, OF CORPORATIONS REGULATION 5.2.001 5.2.001 CONTROLLER'S NOTICE TO OWNER OR LESSOR OF PROPERTY - HOW GIVEN
A notice under subsection 419A(3) of the Corporations Law must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner's or lessor's usual place of residence or business or the place of residence or business last known to the controller. REGULATION 5.2.01 5.2.01 CERTIFIED COPIES OF REPORTS
A copy of:
(a) a report that must be lodged; and
(b) a certificate or other document annexed to that report;
must be certified in writing to be a true copy by:
(c) for a copy lodged for the purposes of paragraph 429(2)(c) of the Corporations Law - the controller of property of the corporation; or
(f) for a copy lodged for the purposes of subsection 475(7) of the Corporations Law - by the liquidator or provisional liquidator of the company. PART 5.3A - ADMINISTRATION OF A COMPANY'S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT REGULATION 5.3A.01 ADMINISTRATOR'S NOTICE OF ENDING OF ADMINISTRATION 5.3A.01(1)
If the administration of a company ends on the happening of an event of a kind referred to in subsection 435C(2) or (3) of the Corporations Law, the administrator of the company or of the deed of company arrangement (as the case may be) must lodge a notice of the happening of the event and the ending of the administration of the company as soon as practicable after the event.
5.3A.01(2)
Subregulation (1) does not apply if a notice of the happening of the event is lodged in accordance with the Corporations Law or a provision of these regulations other than this regulation.
REGULATION 5.3A.02 5.3A.02 ADMINISTRATOR TO SPECIFY VOIDABLE TRANSACTIONS IN STATEMENT
The administrator of a company under administration, in setting out his or her opinions in a statement referred to in paragraph 439A(4)(b) of the Corporations Law, must specify whether there are any transactions that appear to the administrator to be voidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator under Part 5.7B of the Corporations Law. REGULATION 5.3A.03 5.3A.03 ADMINISTRATOR TO LODGE NOTICE OF APPOINTMENT
If an administrator is appointed under subsection 436E(4), subsection 444A(2), section 449B, subsection 449C(1), (4) or (6), or subsection 449D(1) or (2), of the Corporations Law, the administrator must lodge a notice of the appointment before the end of the next business day after the appointment. REGULATION 5.3A.04 5.3A.04 NOTICE OF CHANGE OF ADMINISTRATOR'S ADDRESS
An administrator of a company under administration or of a deed of company arrangement must, within 14 days after a change in the location of the administrator's office, lodge notice of the change. REGULATION 5.3A.05 5.3A.05 ADMINISTRATOR'S NOTICE TO OWNER OR LESSOR OF PROPERTY - HOW GIVEN
A notice under subsection 443B(3) of the Corporations Law must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner's or lessor's usual place of residence or business or the place of residence or business last known to the administrator. REGULATION 5.3A.06 5.3A.06 PROVISIONS INCLUDED IN DEED OF COMPANY ARRANGEMENT
For the purposes of subsection 444A(5) of the Corporations Law, the prescribed provisions are those set out in Schedule 8A. REGULATION 5.3A.07 ADMINISTRATOR BECOMES LIQUIDATOR - ADDITIONAL CASES 5.3A.07(1)
For the purposes of subsection 446B(1) of the Corporations Law, a company that has executed a deed of company arrangement is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:
(a) if the Court at a particular time makes an order under section 445D of the Corporations Law terminating the deed of company arrangement; or
(b) if the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up - if those circumstances exist at a particular time.
5.3A.07(2)
The company is taken to have passed the special resolution:
(a) at the time referred to in paragraph (1)(a) or (b), as the case may be; and
(b) without a declaration having been made and lodged under section 494 of the Corporations Law.
5.3A.07(3)
Section 497 of the Corporations Law is taken to have been complied with in relation to the winding up.
5.3A.07(4)
For the purposes of subsection 499(1) of the Corporations Law:
(a) the company is taken to have nominated the administrator of the deed of company arrangement to be liquidator for the purposes of the winding up; and
(b) the creditors are taken not to have nominated anyone.
5.3A.07(5)
The liquidator must:
(a) within 7 days after the day on which the company is taken to have passed the resolution, lodge a written notice stating that the company is taken because of this regulation to have passed such a resolution and specifying that day; and
(b) cause a notice of that kind to be published, within 21 days after that day:
(i) in a national newspaper; or
(ii) in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.
5.3A.07(6)
Section 482 of the Corporations Law applies in relation to the winding up as if it were a winding up in insolvency or by the Court.
Note Section 482 of the Corporations Law empowers the Court to stay or terminate a winding up and to give consequential directions.
5.3A.07(7)
An application under section 482 of the Corporations Law as applying because of subregulation (6) may be made:
(a) despite subsection 499(4) of the Corporations Law, by the company pursuant to a resolution of the board; or
(b) by the liquidator; or
(c) by a creditor; or
(d) by a contributory.
REGULATION 5.3A.08 5.3A.08 PUBLICATION OF NOTICE OF FAILURE TO EXECUTE INSTRUMENT OF TERMS OF DEED
For the purposes of paragraph 450C(b) of the Corporations Law, a notice under paragraph 450C(a) of the Corporations Law must be published:
(a) in a national newspaper; or
(b) in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction. REGULATION 5.3A.09 5.3A.09 PUBLICATION OF NOTICE OF TERMINATION OF DEED BY CREDITORS
For the purposes of paragraph 450D(c) of the Corporations Law, a notice under paragraph 450D(a) of the Corporations Law must be published:
(a) in a national newspaper; or
(b) in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction. PART 5.4 - WINDING UP IN INSOLVENCY REGULATION 5.4.01 5.4.01 APPLICATION TO COURT FOR WINDING UP - PRESCRIBED AGENCY
The Australian Prudential Regulation Authority is a prescribed agency for the purposes of paragraph 459P(1)(g) of the Corporations Law. PART 5.6 - WINDING UP GENERALLY REGULATION 5.6.01 5.6.01 MATTERS FOR ENTRY IN LIQUIDATOR'S OR PROVISIONAL LIQUIDATOR'S BOOKS
For the purposes of section 531 of the Corporations Law, the prescribed matters are those that are required to give a complete and correct record of the liquidator's or provisional liquidator's administration of the company's affairs. REGULATION 5.6.02 5.6.02 INSPECTION OF BOOKS KEPT UNDER SECTION 531 OF THE CORPORATIONS LAW
The liquidator or provisional liquidator must ensure that the books kept under section 531 of the Corporations Law are available at his or her office for inspection in accordance with that section. REGULATION 5.6.06 5.6.06 PAYMENT INTO LIQUIDATOR'S GENERAL ACCOUNT
A liquidator must:
(a) unless otherwise directed by the Court or the committee of inspection - open a bank account to be known as the liquidator's general account; and
(b) pay into that account all money received by the liquidator not later than 7 days after it has been received. REGULATION 5.6.07 5.6.07 DEPOSIT OF SECURITIES
A liquidator must deposit in the bank with which the liquidator's general account was opened:
(a) the bills; and
(b) the notes; and
(c) any other securities;
payable to the company or the liquidator as soon as possible after they are received by the liquidator.
REGULATION 5.6.08 5.6.08 Delivery of securitiesAll bills, notes or other securities deposited in a bank in accordance with regulation 5.6.07 must be delivered out on the signed request of the liquidator. REGULATION 5.6.09 SPECIAL BANK ACCOUNT 5.6.09(1)
The Court may give directions regarding the payment, deposit or custody of:
(a) money; and
(b) bills, notes or other securities;
that are payable to, or into the possession of, a liquidator.
5.6.09(2)
If an application is made to the Court to authorise the liquidator to make payments into and out of a special bank account, the Court may:
(a) authorise the payments for the time and on the terms as it thinks fit; and
(b) if the Court thinks that the account is no longer required - at any time order it to be closed.
5.6.09(3)
An office copy of an order under subregulation (2) must be served by the liquidator on the bank with which the special bank account has been opened.
REGULATION 5.6.10 PAYMENTS OUT OF LIQUIDATOR'S GENERAL ACCOUNT 5.6.10(1)
All payments out of the liquidator's general account must be made by cheque.
5.6.10(2)
A cheque to which subregulation (1) refers must:
(a) have the name of the company marked or written on the face of it; and
(b) be signed by the liquidator.
REGULATION 5.6.11 APPLICATION 5.6.11(1)
In regulations 5.6.12 to 5.6.57, unless the contrary intention appears, proof of debt or claim includes a statement of particulars of a debt or claim submitted in accordance with regulation 5.6.39, as well as a formal proof of debt or claim.
5.6.11(2)
Subject to subregulation (3), regulations 5.6.12 to 5.6.36A apply to the convening and conduct of, and voting at:
(a) a meeting convened under Part 5.3A, 5.4, 5.4B, 5.5 or 5.6 of the Corporations Law that is:
(i) a meeting of members, creditors or contributories of a company; or
(ii) a joint meeting of creditors and members of a company; or
(iii) a meeting of a committee of inspection; or
(iv) a meeting of a committee of creditors; and
(b) a meeting of creditors of a company held under a deed of company arrangement.
5.6.11(3)
Regulations 5.6.12 to 5.6.36A do not apply to:
(a) a meeting of the directors of a company; or
(b) a meeting of the members of a company, other than a meeting referred to in paragraph (2)(a); or
(c) if those regulations are inconsistent with a particular requirement of the Corporations Law, these Regulations or the rules - a meeting mentioned in paragraph (2)(a) or (b).
REGULATION 5.6.12 NOTICE OF MEETING 5.6.12(1)
The convenor of a meeting must give notice in writing of the meeting to every person appearing on the company's books or otherwise to be:
(a) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(i) - a member, creditor or contributory of the company; or
(b) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(ii) - a member or creditor of the company; or
(c) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(iii) - a member of the committee of inspection; or
(d) in the case of a meeting referred to in subparagraph 5.6.11(2)(a)(iv) - a member of the committee of creditors; or
(e) in the case of a meeting referred to in paragraph 5.6.11(2)(b) - a creditor of the company.
5.6.12(1A)
The notice must be given to a person:
(a) by delivering it personally; or
(b) by sending it to the person by prepaid post; or
(c) if the person has a facsimile transmission number to which notices may be sent to the person - by faxing it to the person at that number; or
(d) if the person has a document exchange number to which notices may be sent to the person - by lodging it with the exchange at, or for delivery to, the person's receiving facilities identified by that number.
5.6.12(1B)
The notice must be given not less than 14 days before the day of the meeting, except:
(a) in the case of a meeting of creditors under section 436E, 439A or 445F, or subsection 449C(4), of the Corporations Law; or
(b) as provided by subregulation (1C) or (1D).
5.6.12(1C)
If a liquidator thinks it appropriate, he or she may convene a meeting of a committee of inspection by giving less than 14 days' notice of the meeting in accordance with subregulations (1) and (1A).
5.6.12(1D)
If the administrator of a company under administration thinks it appropriate, he or she may convene a meeting of a committee of creditors by giving less than 14 days' notice of the meeting in accordance with subregulations (1) and (1A).
5.6.12(2)
The notice referred to in subregulation (1) must be:
(a) if convening a meeting of creditors under subsection 496(1) of the Corporations Law - in accordance with Form 521; or
(aa) if convening a meeting of creditors under section 436E of the Corporations Law - in accordance with Form 529A; or
(b) in any other case - in accordance with Form 529.
5.6.12(3)
A notice of a joint meeting of the creditors and members of a company must be sent to the creditors of the company at the same time as it is sent to the members of the company.
5.6.12(4)
A notice to a creditor must be sent by the person convening the meeting:
(a) to the address given by the creditor in his or her proof of debt or claim; or
(b) if the creditor has not lodged a proof, to the address given in the report on the affairs of the company; or
(c) to any other address known to the person.
5.6.12(5)
A notice of a meeting must be sent by the convenor of the meeting:
(a) to the address given in the company's books as the address of that person; or
(b) to any other address known to the person convening the meeting.
REGULATION 5.6.13 5.6.13 PROOF OF NOTICE
A statement in writing in accordance with Form 530 by:
(a) the person convening a meeting; or
(b) a person acting on his or her behalf;
that notice of the meeting was sent by prepaid post is, in the absence of evidence to the contrary, sufficient proof of the notice having been sent to a person at the address specified for that person in that notice.
REGULATION 5.6.13A 5.6.13A IF TELEPHONE CONFERENCE FACILITIES ARE AVAILABLEIf telephone conference facilities are expected to be available at the place where the meeting is to be held and the convenor of the meeting considers that, having regard to all the circumstances, it will be appropriate to use those facilities, the notice of the meeting must:
(a) set out the relevant telephone number; and
(b) indicate that a person, or the proxy or attorney of a person, who wishes to participate in the meeting by telephone must give to the convenor, not later than the second-last working day before the day on which the meeting is to be held, a written statement setting out:
(i) the name of the person and of the proxy or attorney (if any); and
(ii) an address to which notices to the person, proxy or attorney may be sent; and
(iii) a telephone number at which the person, proxy or attorney may be contacted; and
(iv) any facsimile transmission number to which notices to the person, proxy or attorney may be sent; and
(c) indicate that a person, or the proxy or attorney of a person, who participates in the meeting by telephone must pay any costs incurred by the person, proxy or attorney in participating and is not entitled to be reimbursed for those costs from the assets of the company. REGULATION 5.6.13B PERSONS, OR THEIR PROXIES OR ATTORNEYS, PARTICIPATING BY TELEPHONE 5.6.13B(1)
If a person, or a person's proxy or attorney, who wishes to participate in a meeting by means of telephone conference facilities, has given the convenor of the meeting a statement in accordance with regulation 5.6.13A, the convenor must take all reasonable steps to ensure that the person, or the person's proxy or attorney, is contacted before the start of the meeting on the telephone number provided by that person.
5.6.13B(2)
If the person, proxy or attorney is contacted, the convenor must take all reasonable steps to ensure that the person, proxy or attorney can hear the proceedings, and can be heard, by means of those facilities, so that the person, proxy or attorney can participate in the meeting.
5.6.13B(3)
A person who, or whose proxy or attorney, participates in the meeting by telephone in accordance with this regulation is taken to be present in person at the meeting.
REGULATION 5.6.14 TIME AND PLACE OF MEETING 5.6.14(1)
The convenor of a meeting must convene the meeting at the time and place that he or she thinks are most convenient for the majority of persons entitled to receive notice of the meeting.
5.6.14(2)
The convenor must give not less than 7 days' notice of the time and place of the meeting, except in the case of:
(a) a meeting of creditors under section 436E, 439A or 445F, or subsection 449C(4), of the Corporations Law; or
(b) a meeting of a committee of creditors; or
(c) a meeting of a committee of inspection.
REGULATION 5.6.14A 5.6.14A ADVERTISEMENT OF A MEETING
The convenor of a meeting must advertise the meeting in each State, Territory and excluded Territory in which the company carries on business, or has carried on business at any time during the 2 years immediately before the day of the meeting, in a daily newspaper circulating generally in that State, Territory or excluded Territory. REGULATION 5.6.14B 5.6.14B MEETINGS NOT CONVENED IN ACCORDANCE WITH REGULATIONS
A meeting may be held if all the persons who are entitled to be present at, and to vote at, the meeting agree, even if it has not been convened in accordance with these regulations. REGULATION 5.6.15 COSTS OF CONVENING MEETINGS OF CREDITORS ETC 5.6.15(1)
A person (other than a liquidator or administrator of a company under administration or of a deed of company arrangement) at whose request a meeting of creditors or contributories is convened must:
(a) if the liquidator or administrator requires a security for the payment of costs before the meeting is convened - deposit with theliquidator or administrator a sum of money; and
(b) pay the costs of convening the meeting.
5.6.15(2)
The costs of convening a meeting of a committee of inspection or a committee of creditors must be repaid out of the assets of the company to the person causing it to be convened if:
(a) the Court so orders; or
(b) the committee by resolution so directs.
REGULATION 5.6.16 QUORUM 5.6.16(1)
Subject to subregulation (3), a meeting must not act for any purpose except:
(a) the election of a chairperson; and
(b) the proving of debts; and
(c) the adjournment of the meeting;
unless a quorum is present.
5.6.16(2)
A quorum consists of:
(a) if the number of persons entitled to vote exceeds 2 - at least 2 of those persons; or
(b) if only one person is, or 2 persons are, entitled to vote - that person or those persons;
present in person or by proxy or attorney.
5.6.16(3)
A meeting is sufficiently constituted if only one person is present in person at the meeting if the person represents personally or by proxy or otherwise a number of persons sufficient to constitute a quorum.
5.6.16(4)
If within 30 minutes after the time appointed for a meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
the meeting is adjourned:
(c) to the same day in the next week at the same time and place; or
(d) to the day (not being less than 7 or more than 21 days after the day on which the meeting is adjourned) and at the time and place that the chairperson appoints.
5.6.16(4A)
A meeting convened under section 439A of the Corporations Law must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.
5.6.16(4B)
The convenor of the meeting, or a person nominated by the convenor, must immediately give notice of the adjournment to the persons to whom notice of the meeting must be given under regulation 5.6.12.
5.6.16(4C)
A meeting on the date and at the place to which the meeting is adjourned is not to be taken to be incompetent to act only because of a failure to comply with subregulation (4B) unless the Court, on the application of the convenor of the meeting, or of a creditor or contributory, otherwise declares.
5.6.16(5)
If within 30 minutes after the time appointed for the adjourned meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
the adjourned meeting lapses.
REGULATION 5.6.17 CHAIRPERSON 5.6.17(1)
If a meeting is convened by:
(a) a liquidator; or
(b) a provisional liquidator; or
(c) an administrator of the company under administration or of a deed of company arrangement;
that person, or a person nominated by that person, must chair the meeting.
5.6.17(2)
In any other case, the persons present and entitled to vote at a meeting must elect one of their number to be chairperson of the meeting.
REGULATION 5.6.18 ADJOURNMENT OF MEETING 5.6.18(1)
The chairperson of a meeting:
(a) if so directed by the meeting - must; or
(b) with the consent of the meeting - may;
adjourn the meeting from time to time and from place to place.
5.6.18(1A)
A meeting convened under section 439A of the Corporations Law must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.
5.6.18(2)
An adjourned meeting must be held at the place of the original meeting unless:
(a) the resolution for adjournment specifies another place; or
(b) the Court otherwise orders; or
(c) the liquidator or provisional liquidator, or the administrator of a company under administration or of a deed of company arrangement, otherwise orders; or
(d) the place of the original meeting is unavailable, in which case the chairperson may appoint another place.
REGULATION 5.6.19 VOTING ON RESOLUTIONS 5.6.19(1)
A resolution put to the vote of a meeting must be decided on the voices unless, subject to subregulation (5), a poll is demanded, before or on the declaration of the result of the voices:
(a) by the chairperson; or
(b) by at least 2 persons present in person, by proxy or by attorney and entitled to vote at the meeting; or
(c) by a person present in person, by proxy or by attorney and representing not less than 10% of the total voting rights of all the persons entitled to vote at the meeting; or
(d) in the case of a meeting of members - by a member or members holding shares in the company conferring a right to vote at a meeting, being shares on which the total sum paid up is not less than 10% of the total sum paid up on all the shares conferring that right.
5.6.19(2)
Unless a poll is demanded, the chairperson must declare that a resolution has been:
(a) carried; or
(b) carried unanimously; or
(c) carried by a particular majority; or
(d) lost;
on the voices.
5.6.19(3)
A declaration is conclusive evidence of the result to which it refers, without proof of the number or proportion of the votes recorded in favour of or against the resolution, unless a poll is demanded.
5.6.19(4)
A demand for a poll may be withdrawn.
5.6.19(5)
A vote taken at a joint meeting of creditors and members of a company must be decided on the voices.
5.6.19(6)
If a creditor of a company, by contract, surrenders or limits all or some of his or her rights to vote at a meeting of creditors, then the creditor must not vote except in accordance with the contract and any vote which is not in accordance with the contract will not be counted.
REGULATION 5.6.20 TAKING A POLL 5.6.20(1)
Subject to subregulation (2), if a poll is demanded:
(a) the manner in which it is to be taken; and
(b) the time at which it is to be taken;
must be determined by the chairperson.
5.6.20(2)
A poll demanded on the election of a chairperson or on a question of adjournment must be taken at once.
REGULATION 5.6.21 CARRYING OF RESOLUTIONS AFTER A POLL HAS BEEN DEMANDED AT A MEETING OF CREDITORS 5.6.21(1)
This regulation applies to a poll taken at a meeting of creditors.
5.6.21(2)
A resolution is carried if:
(a) a majority of the creditors voting (whether in person, by attorney or by proxy) vote in favour of the resolution; and
(b) the value of the debts owed by the corporation to those voting in favour of the resolution is more than half the total debts owed to all the creditors voting (whether in person, by proxy or by attorney).
5.6.21(3)
A resolution is not carried if:
(a) a majority of creditors voting (whether in person, by proxy or by attorney) vote against the resolution; and
(b) the value of the debts owed by the corporation to those voting against the resolution is more than half the total debts owed to all creditors voting (whether in person, by proxy or by attorney).
5.6.21(4)
If no result is reached under subregulation (2) or (3), then:
(a) the person presiding at the meeting may exercise a casting vote in favour of the resolution, in which case the resolution is carried; or
(b) the person presiding at the meeting may exercise a casting vote against the resolution, in which case the resolution is not carried.
5.6.21(5)
In this regulation, creditor includes a debenture holder.
REGULATION 5.6.22 CARRYING OF RESOLUTION AFTER A POLL HAS BEEN DEMANDED AT A MEETING OF CONTRIBUTORIES OR MEMBERS 5.6.22(1)
This regulation applies to a poll taken at a meeting of contributories or members.
5.6.22(2)
In counting the majority on a poll demanded on the question that a resolution be carried, regard must be made to:
(a) the number of votes cast for or against the resolution; and
(b) the number of votes to which each member is entitled by the Corporations Law or the articles of the company.
5.6.22(3)
The chairperson of the meeting has a casting vote in addition to his or her deliberative vote.
REGULATION 5.6.23 CREDITORS WHO MAY VOTE 5.6.23(1)
A person is not entitled to vote as a creditor at a meeting of creditors unless:
(a) his or her debt or claim has been admitted wholly or in part by the liquidator or administrator of a company under administration or of a deed of company arrangement; or
(b) he or she has lodged, with the chairperson of the meeting or with the person named in the notice convening the meeting as the person who may receive particulars of the debt or claim:
(i) those particulars; or
(ii) if required - a formal proof of the debt or claim.
5.6.23(2)
A creditor must not vote in respect of:
(a) an unliquidated debt; or
(b) a contingent debt; or
(c) an unliquidated or a contingent claim; or
(d) a debt the value of which is not established;
unless a just estimate of its value has been made.
5.6.23(3)
A creditor must not vote in respect of:
(a) a debt or a claim on or secured by:
(i) a bill of exchange; or
(ii) a promissory note; or
(iii) any other negotiable instrument or security;
held by the creditor unless he or she is willing:
(b) to treat the liability to him or her on the instrument or security of a prescribed person as a security in his or her hands; or
(c) to estimate its value; and
(d) for the purposes of voting (but not for the purposes of dividend), to deduct it from his or her debt or claim.
5.6.23(4)
For the purposes of paragraph 5.6.23(3)(b), a prescribed person is a person whose liability is referred to in paragraph 5.6.23(3)(a) who:
(a) is liable to the company directly; or
(b) may be liable to the company on the default of another person with respect to the liability;
at the time of voting, but who is not:
(c) an insolvent under administration; or
(d) a person against whom a winding up order is in force.
REGULATION 5.6.24 VOTES OF SECURED CREDITORS 5.6.24(1)
For the purposes of voting, a secured creditor must state in the creditor's proof of debt or claim:
(a) the particulars of his or her security; and
(b) the date when it was given; and
(c) the creditor's estimate of the value of the security;
unless he or she surrenders the security.
5.6.24(2)
A creditor is entitled to vote only in respect of the balance, if any, due to him or her after deducting the value of his or her security as estimated by him or her in accordance with regulation 5.6.41.
5.6.24(3)
If a secured creditor votes in respect of his or her whole debt or claim, the creditor must be taken to have surrendered his or her security unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.
5.6.24(4)
This regulation does not apply to a meeting of creditors convened under Part 5.3A of the Corporations Law.
REGULATION 5.6.26 ADMISSION AND REJECTION OF PROOFS FOR PURPOSES OF VOTING 5.6.26(1)
The chairperson of a meeting has power to admit or reject a proof of debt or claim for the purposes of voting.
5.6.26(2)
If the chairperson is in doubt whether a proof of debt or claim should be admitted or rejected, he or she must mark that proof as objected to and allow the creditor to vote, subject to the vote being declared invalid if the objection is sustained.
5.6.26(3)
A decision by the chairperson to admit or reject a proof of debt or claim for the purposes of voting may be appealed against to the Court within 14 days after the decision.
REGULATION 5.6.27 MINUTES OF MEETING 5.6.27(1)
The chairperson must, within the period specified in subregulation (6):
(a) cause minutes of the proceedings to be drawn up and entered in a record kept for the purpose; and
(b) sign the minutes after they have been entered in the record.
5.6.27(2)
A record of the persons present in person, by proxy or by attorney at a meeting must be prepared and kept:
(a) if the meeting is of members or contributories - in accordance with Form 531A; and
(b) if the meeting is of creditors or debenture holders - in accordance with Form 531B; and
(c) if the meeting is of a committee of inspection or a committee of creditors - in accordance with Form 531C.
5.6.27(3)
The chairperson at a meeting (other than a meeting of holders of debentures) must lodge a copy of the minutes of the meeting certified by him or her to be a true copy within the period specified in subregulation (6).
5.6.27(3A)
If the chairperson:
(a) dies without having signed the minutes as required by subregulation (1), or without having lodged a certified copy of the minutes as required by subregulation (3); or
(b) becomes incapable, whether through illness or other cause, of signing the minutes as required by subregulation (1), or of lodging a certified copy of the minutes as required by subregulation (3);
the convenor of the meeting, if he or she attended the meeting, or a creditor, member or contributory who attended the meeting, may sign the minutes as required by subregulation (1) and may certify and lodge a copy of the minutes as required by subregulation (3).
5.6.27(4)
The administrator of a company under administration or of a deed of company arrangement, after a meeting of creditors, must cause:
(a) the minutes; and
(b) the record of persons present at the meeting;
prepared in accordance with this regulation to be made available for inspection by creditors or members at the registered office or principal place of business of the company in the jurisdiction.
5.6.27(5)
The liquidator must cause:
(a) the minutes; and
(b) the record of persons present at the meeting;
prepared under this regulation to be made available at the principal place in the jurisdiction at which he or she practises, for inspection by creditors or contributories.
5.6.27(6)
For the purposes of subregulations (1) and (3), the specified period is:
(a) for a meeting other than a meeting convened under section 436E or 439A of the Corporations Law - 1 month after the end of the meeting; or
(b) for a meeting convened under section 436E or 439A of the Corporations Law - 14 days after the end of the meeting.
REGULATION 5.6.28 APPOINTMENT OF PROXIES 5.6.28(1)
A person entitled to attend and vote at a meeting may appoint a natural person over the age of 18 years as his or her proxy to attend and vote at the meeting.
5.6.28(2)
Subject to subregulation (3) and to regulation 5.6.30, a proxy appointed under this regulation has the same right to speak and vote at the meeting as the person who appointed the proxy.
5.6.28(3)
A person claiming to be the proxy of a person entitled to attend and vote at a meeting is not entitled to speak or vote as proxy at the meeting (except in relation to the election of a chairperson) unless the instrument of appointment of the proxy, as required by regulation 5.6.29, or a facsimile copy of the instrument, has been lodged with the person named in the notice convening the meeting as the person who is to receive the instrument, or with the chairperson.
REGULATION 5.6.29 FORM OF PROXIES 5.6.29(1)
The appointment of a person as a proxy must be by an instrument in accordance with Form 532.
5.6.29(2)
The person appointing the proxy must sign the instrument of proxy, or, if incapable of writing, attach his or her mark to it.
5.6.29(3)
The proxy of a person who is blind or incapable of writing must not be accepted unless:
(a) the person attaches his or her signature or mark to the instrument appointing the proxy after it has been completed; and
(b) the instrument is read to him or her by a witness to his or her signature or mark (not being the person nominated as proxy) who completes the certificate of witness set out in Form 532.
REGULATION 5.6.30 5.6.30 INSTRUMENTS OF PROXY
An instrument appointing a proxy may specify the manner in which the proxy is to vote on a particular resolution, and the proxy is not entitled to vote on the resolution except as specified in the instrument. REGULATION 5.6.31 5.6.31 PROXY FORMS TO ACCOMPANY NOTICE OF MEETINGS
A person convening a meeting must:
(a) send a form of proxy with each notice of the meeting; and
(b) ensure that neither the name or description of any person is printed or inserted in the body of the form of proxy before it is sent out. REGULATION 5.6.31A PERSON MAY ATTEND AND VOTE BY ATTORNEY 5.6.31A(1)
A person entitled to attend and vote at a meeting may attend and vote at a meeting by his or her attorney.
5.6.31A(2)
A person claiming to be the attorney of a person entitled to attend and vote at a meeting is not entitled to speak or vote as attorney at the meeting (except in relation to the election of a chairperson) unless:
(a) the instrument by which the person was appointed as attorney has been produced to the chairperson; or
(b) the chairperson is otherwise satisfied that the person claiming to be the attorney of the person entitled to vote is the duly authorised attorney of that person.
REGULATION 5.6.32 5.6.32 LIQUIDATOR ETC MAY ACT AS PROXY
A person may appoint:
(a) the liquidator; or
(b) the provisional liquidator; or
(c) the administrator of a company under administration or of a deed of company arrangement; or
(d) the chairperson of a meeting;
by name or by reference to his or her office, to act as his or her general or special proxy.
REGULATION 5.6.33 VOTING BY PROXY IF FINANCIALLY INTERESTED 5.6.33(1)Subject to subregulations (2) and (3), a person acting under:
(a) a general proxy; or
(b) a special proxy;
must not vote in favour of any resolution which would directly or indirectly place:
(c) the person; or
(d) the person's partner; or
(e) the person's employer;
in a position to receive any remuneration out of assets of the company except as a creditor rateably with the other creditors of the company.
5.6.33(2)
If a person holds a special proxy to vote for an application to the Court in favour of his or her appointment as liquidator, he or she may use the proxy and vote accordingly.
5.6.33(3)
If a person holds a special proxy to vote:
(a) in favour of his or her appointment as the administrator of a company under administration or of a deed of company arrangement; or
(b) against the termination of his or her appointment as the administrator of a company under administration or of a deed of company arrangement;
he or she may use the proxy and vote accordingly.
REGULATION 5.6.34 5.6.34 LIQUIDATOR ETC MAY APPOINT DEPUTY
If:
(a) a liquidator; or
(b) an administrator of a company under administration or of a deed of company arrangement; or
(c) a trustee for debenture holders;
holds a proxy and cannot attend the meeting for which it is given, he or she may in writing appoint a person as a deputy who must:
(d) use the proxy:
(i) on his or her behalf in the manner he or she directs; or
(ii) if the proxy is a special proxy - in accordance with its terms; and
(e) if the person has been appointed by a liquidator - comply with regulation 5.6.33 as if the person were the liquidator. REGULATION 5.6.35 5.6.35 PROXIES APPOINTED BY A CORPORATION
A document:
(a) purporting to be a copy of a resolution under subsection 249(3) of the Corporations Law authorising a person to act as proxy at a meeting; and
(b) that has been verified as a true copy of the resolution or that is under the seal of the corporation;
is conclusive evidence of his or her authority to do so.
REGULATION 5.6.36 5.6.36 TIME FOR LODGING PROXIESA person named in a notice convening a meeting as the person who is to receive:
(a) an instrument appointing a proxy; or
(b) any other document relating to the validity of the appointment of a proxy;
must not require that instrument or document to be received more than 48 hours before the meeting.
REGULATION 5.6.36A FACSIMILE COPIES OF PROXIES 5.6.36A(1)A person who, for the purposes of a meeting, lodges a faxed copy of an instrument appointing a proxy or of any document relating to the validity of the appointment, must lodge the original instrument or document in the manner referred to in subregulation 5.6.28(3) within 72 hours after lodging the faxed copy.
5.6.36A(2)
A failure by a person to comply with subregulation (1) will not invalidate the meeting or anything done at the meeting unless the Court, on the application of the convenor of the meeting or of a creditor, member or contributory, otherwise declares.
REGULATION 5.6.37 5.6.37 ESTABLISHING TITLE TO PRIORITY
Regulations 5.6.39 to 5.6.57 (inclusive) apply to the establishment of a title to priority as if it were a debt or claim. REGULATION 5.6.39 NOTICE TO SUBMIT PARTICULARS OF DEBT OR CLAIM 5.6.39(1)
A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which a creditor may submit particulars of his or her debt or claim.
5.6.39(2)
A liquidator must, at least once, give notice in writing of the day fixed under subregulation (1) by advertising the date in a daily newspaper circulating generally in the jurisdiction.
5.6.39(3)
An advertisement mentioned in subregulation (2) must be in accordance with Form 533.
REGULATION 5.6.40 PREPARATION OF A PROOF OF DEBT OR CLAIM 5.6.40(1)
A proof of debt or claim may be prepared by the creditor personally or by a person authorised by the creditor.
5.6.40(2)
A proof prepared by an authorised person must state his or her authority and means of knowledge.
REGULATION 5.6.41 5.6.41 DISCLOSURE OF SECURITY
A proof of debt or claim must state:
(a) whether the creditor is or is not a secured creditor; and
(b) the value and nature of the creditor's security (if any); and
(c) whether the debt is secured wholly or in part. REGULATION 5.6.42 5.6.42 DISCOUNTS
In preparing a proof of debt or claim, a creditor must allow for all discounts for which an allowance would have been made if the company were not being wound up. REGULATION 5.6.43 PERIODICAL PAYMENTS 5.6.43(1)
If rent or any other payment:
(a) falls due at stated times; and
(b) the relevant date is a time other than one of those times;
the person entitled to the rent or other payment may submit a proof of debt or claim for a proportionate part of the rent or other payment, up to the date of the winding up order or resolution, as if the rent or payment accrued from day to day.
5.6.43(2)
If the liquidator remains in control of premises rented to a company that is being wound up, subregulation (1) does not affect the right of the landlord of the premises to claim payment of rent by the company or the liquidator during the period of the company's occupation or the liquidator's control.
REGULATION 5.6.43A DEBT OR CLAIM OF UNCERTAIN VALUE - APPEAL TO COURT 5.6.43A(1)
An appeal to the Court under subsection 554A(3) of the Corporations Law must be made:
(a) within 21 days after the person aggrieved becomes aware of the liquidator's estimate or, if the period is extended under subregulation (2), within the extended period; and
(b) in accordance with the rules.
5.6.43A(2)
Upon application by the person aggrieved before or after the end of the period of 21 days referred to in subregulation (1), the Court may extend the period within which an appeal must be made.
REGULATION 5.6.44 5.6.44 DEBT DISCOUNT RATE (CORPORATIONS LAW, S 554B)
The discount by which the amount payable on the future date is to be reduced under section 554B of the Corporations Law is 8% per year calculated from the declaration of the dividend to the time when the debt would have become payable according to the terms on which it was contracted. REGULATION 5.6.45 EMPLOYEES' WAGES 5.6.45(1)
If the employees of a company make demands:
(a) for wages or salaries (whether or not earned wholly or in part by way of commission), whether or not payable to the employees for annual leave or long service leave; or
(b) for retrenchment payments;
one proof of debt or claim may be prepared and submitted on behalf of those employees.
5.6.45(2)
A proof of debt or claim prepared and submitted under subregulation (1):
(a) must have annexed to it a schedule setting out the names of the employees and the amounts due to each of them; and
(b) has the same effect as if separate proofs had been prepared and submitted by each of the employees named in the schedule.
REGULATION 5.6.46 5.6.46 PRODUCTION OF BILL OF EXCHANGE AND PROMISSORY NOTE
If a company is, or may become, liable on:
(a) a bill of exchange; or
(b) a promissory note; or
(c) any other negotiable instrument or security;
it must be produced to the liquidator before a proof of debt or claim for the liability can be admitted, unless the Court otherwise orders.
REGULATION 5.6.47 ADMISSION OF DEBT OR CLAIM WITHOUT FORMAL PROOF 5.6.47(2)If a liquidator admits a debt or claim without formal proof, it is not necessary for the liquidator formally to admit the debt or claim in writing.
5.6.47(3)
If a creditor's debt or claim has been admitted without formal proof, a notice of dividend is sufficient notice of the admission.
5.6.47(4)
A liquidator must not reject a debt or claim without:
(a) notifying the creditor of the grounds of the liquidator's rejection; and
(b) requiring that a formal proof of debt or claim be submitted for that debt or claim.
REGULATION 5.6.48 NOTICE TO CREDITORS TO SUBMIT FORMAL PROOF 5.6.48(1)
A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which creditors of the company whose debts or claims have not been admitted are formally to prove their debts or claims.
5.6.48(2)
A liquidator must give notice in writing of the day fixed under subregulation (1):
(a) by advertising the day, in each State, Territory and excluded Territory in which the company carried on business at any time during the 2 years immediately preceding the relevant date, in a daily newspaper circulating generally in the State, Territory or excluded Territory; and
(b) to every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and whose debt or claim has not been admitted.
5.6.48(3)
An advertisement mentioned in subregulation (2) must be in accordance with Form 534.
5.6.48(4)
A creditor of the company who fails to comply with a requirement of a liquidator under subregulation (1) is excluded:
(a) from the benefit of a distribution made before his or her debt or claim is admitted; and
(b) from objecting to that distribution.
REGULATION 5.6.49 FORMAL PROOF OF DEBT OR CLAIM 5.6.49(1)
A debt or claim may be formally proved by delivering or sending by post a formal proof of debt or claim to the liquidator.
5.6.49(2)
A formal proof of debt or claim:
(a) that is prepared and submitted in accordance with regulation 5.6.45 - must be in accordance with Form 536; and
(b) in any other case - must be in accordance with Form 535.
REGULATION 5.6.50 CONTENTS OF FORMAL PROOF OF DEBT OR CLAIM 5.6.50(1)
A formal proof of debt or claim must:
(a) contain detailed particulars of the debt or claim sought to be proved; and
(b) in the case of a debt, include a statement of account; and
(c) specify the vouchers (if any) by which the statement can be substantiated.
5.6.50(2)
The liquidator may at any time call for the production of the vouchers referred to in subregulation (1).
REGULATION 5.6.51 5.6.51 COSTS OF PROOF
A creditor must bear the cost:
(a) of proving his or her debt or claim; or
(b) of amending a proof of debt or claim;
unless the Court otherwise orders.
REGULATION 5.6.52 5.6.52 LIQUIDATOR TO NOTIFY RECEIPT OF PROOF OF DEBT OR CLAIMIf a liquidator is requested to do so by the person submitting a proof of debt or claim, the liquidator must notify that person of the receipt of the proof and whether or not it has been admitted under regulation 5.6.47. REGULATION 5.6.53 TIME FOR LIQUIDATOR TO DEAL WITH PROOFS 5.6.53(1)
A liquidator must, within:
(a) 28 days after receiving a request in writing from a creditor to do so; or
(b) if ASIC allows - any further period;
in writing:
(c) admit all or part of the formal proof of debt or claim submitted by the creditor; or
(d) reject all or part of the formal proof of debt or claim; or
(e) require further evidence in support of it.
5.6.53(2)
If the liquidator does not deal with a request under subregulation (1) in accordance with that subregulation, the creditor who submitted the proof may apply to the Court for a decision in respect of it.
5.6.53(3)
If the liquidator gives notice in writing to a creditor that further evidence is required in support of the formal proof of debt or claim submitted by the creditor under subregulation (1), the period referred to in that subregulation is taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her notice.
REGULATION 5.6.54 GROUNDS OF REJECTION AND NOTICE TO CREDITOR 5.6.54(1)
Within 7 days after the liquidator has rejected all or part of a formal proof of debt or claim, the liquidator must:
(a) notify the creditor of the grounds for that rejection in accordance with Form 537; and
(b) give notice to the creditor at the same time:
(i) that the creditor may appeal to the Court against the rejection within the time specified in the notice, being not less than 14 days after service of the notice, or such further period as the Court allows; and
(ii) that unless the creditor appeals in accordance with subparagraph (i), the amount of his or her debt or claim will be assessed in accordance with the liquidator's endorsement on the creditor's proof.
5.6.54(2)
A person may appeal against the rejection of a formal proof of debt or claim within:
(a) the time specified in the notice of the grounds of rejection; or
(b) if the Court allows - any further period.
5.6.54(3)
The Court may extend the time for filing an appeal under subregulation (2), even if the period specified in the notice has expired.
5.6.54(4)
If the liquidator has admitted a formal proof of debt or claim, the notice of dividend is sufficient notice of the admission.
REGULATION 5.6.55 REVOCATION OR AMENDMENT OF DECISION OF LIQUIDATOR 5.6.55(1)
If the liquidator considers that a proof of debt or claim has been wrongly admitted, the liquidator may:
(a) revoke the decision to admit the proof and reject all of it; or
(b) amend the decision to admit the proof by increasing or reducing the amount of the admitted debt or claim.
5.6.55(2)
If the liquidator considers that all of a proof of debt or claim has been wrongly rejected, the liquidator may:
(a) revoke the decision to reject the proof of debt or claim; and
(b) admit all of the proof or admit part of it and reject part of it.
5.6.55(3)
If the liquidator:
(a) revokes a decision to admit a proof of debt or claim and rejects all of it; or
(b) amends that decision by reducing the amount of the admitted debt or claim;
the liquidator must inform the creditor by whom it was lodged, in writing, of his or her grounds for the revocation or amendment.
5.6.55(4)
If the liquidator revokes a decision to admit a proof of debt or claim and rejects all of it, or amends that decision by reducing the amount of the admitted debt or claim, the creditor must at once repay to the liquidator:
(a) the amount received as dividend for the proof; or
(b) the amount received as dividend that exceeds the amount that the creditor would have been entitled to receive if his or her debt or claim had been originally admitted for the reduced amount.
5.6.55(5)
If the liquidator:
(a) revokes a decision to reject all of a proof of debt or claim; or
(b) amends a decision to admit part of a proof of debt or claim;
by increasing the amount of the admitted debt or claim, the creditor by whom it was lodged is entitled to be paid, out of available money for the time being in the hands of the liquidator:
(c) the dividend; or
(d) an additional amount of dividend;
that the creditor would have been entitled to receive if all of the debt or claim had been originally admitted, or the increased amount had been admitted, before the available money is applied to pay a further dividend.
5.6.55(6)
The creditor is not entitled to disturb the distribution of any dividends declared before the liquidator revoked or amended the decision.
REGULATION 5.6.56 5.6.56 WITHDRAWAL OR VARIATION OF PROOF OF DEBT OR CLAIM
A proof of debt or claim may be withdrawn, reduced or varied by a creditor with the consent ofthe liquidator. REGULATION 5.6.57 5.6.57 OATHS
The liquidator in a winding up by the Court may:
(a) administer an affirmation or oath; and
(b) take an affidavit;
for the purposes of the liquidator's duties in relation to admitting a debt or claim.
REGULATION 5.6.58 5.6.58 LIQUIDATOR TO MAKE OUT PROVISIONAL LIST OF CONTRIBUTORIESIf the liquidator of a company considers it necessary to make calls on or adjust the rights of contributories, the liquidator must, as soon as practicable, make out a provisional list of contributories in accordance with Form 538. REGULATION 5.6.59 TIME AND PLACE FOR SETTLEMENT OF LIST 5.6.59(1)
The liquidator must give to each person included in the list not less than 14 days' notice in writing, in accordance with Form 539, of the time and place appointed to settle the list.
5.6.59(2)
The liquidator or a person acting on his or her behalf must lodge a statement in writing in accordance with Form 540 that notice under subregulation (1) was given to each person included in the provisional list of contributories.
5.6.59(3)
A statement under subregulation (2) is evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.
REGULATION 5.6.60 SETTLEMENT OF LIST OF CONTRIBUTORIES 5.6.60(1)
Before settling the list of contributories, the liquidator must hear and determine any objection by a person to being included in the list.
5.6.60(2)
The liquidator must settle the list of contributories and certify it, in accordance with Form 541, at the time and place specified in the notice given under regulation 5.6.59.
REGULATION 5.6.61 SUPPLEMENTARY LIST 5.6.61(1)
The liquidator may at any time vary or add to the list of contributories by:
(a) making out a provisional supplementary list of contributories in accordance with Form 542; and
(b) settling and certifying that list in accordance with Form 543.
5.6.61(2)
Regulation 5.6.59 and subregulation 5.6.60(1) apply to making out, or settling and certifying, a supplementary list by the liquidator.
REGULATION 5.6.62 NOTICE TO CONTRIBUTORIES 5.6.62(1)
Within 14 days after the settlement of the list, or supplementary list, of contributories, the liquidator must:
(a) notify each person included in the list, or supplementary list, of his or her inclusion; and
(b) at the same time give each person notice that he or she may appeal to the Court against his or her inclusion within:
(i) 21 days after service of the notice; or
(ii) if the Court allows - any further period.
5.6.62(2)
A person may appeal against his or her inclusion in the list, or supplementary list, of contributories, within:
(a) 21 days after service on the person of the notice under subregulation (1); or
(b) if the Court allows - any further period.
5.6.62(3)
The Court may extend the time for filing an appeal under subregulation (2), even if the period of 21 days specified in subregulation (1) has expired.
5.6.62(4)
A notice for the purposes of subregulation (1) must be in accordance with Form 544.
5.6.62(5)
The liquidator, or a person acting on the liquidator's behalf, must lodge a statement in writing in accordance with Form 545 that notice under subregulation (1) was given to each person placed on the list, or supplementary list, of contributories.
5.6.62(6)
A statement under subregulation (5) is sufficient evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.
REGULATION 5.6.63 5.6.63 DIVIDEND PAYABLE ONLY ON ADMISSION OF A DEBT OR CLAIM
A dividend in the winding up of the affairs of a company may be paid only to a creditor whose debt or claim has been admitted by the liquidator at the date of the distribution of dividends. REGULATION 5.6.64 5.6.64 APPLICATION OF REGULATIONS 5.6.37 TO 5.6.57
For the purposes of regulations 5.6.64 to 5.6.71, regulations 5.6.37 to 5.6.57 apply:
(a) to the formal proof of a debt or claim; and
(b) to the rejection and to an appeal against the rejection of all or part of a formal proof of a debt or claim. REGULATION 5.6.65 LIQUIDATOR TO GIVE NOTICE OF INTENTION TO DECLARE A DIVIDEND 5.6.65(1)
The liquidator must give notice of his or her intention to declare a dividend not more than 2 months before the intended date:
(a) by publishing a notice in the Gazette in accordance with Form 546; and
(b) in writing, in accordance with Form 547 or, for a final dividend, in accordance with Form 548, to any person whose debt or claim has not been admitted and who:
(i) for a winding up by the Court - is shown as a creditor in the report on the affairs of the company under subsection 475(1) of the Corporations Law; or
(ii) for a members' voluntary winding up - appears in the company's records to be a creditor; or
(iii) for a creditors' voluntary winding up - is shown as a creditor in the list of creditors prepared in accordance with subparagraph 497(2)(b)(ii) of the Corporations Law; or
(iv) to the knowledge of the liquidator claims to be, or might claim to be, a creditor of the company.
5.6.65(2)
A notice in accordance with subregulation (1) must specify a date, not less than 21 days after the date of the notice, on or before which formal proof, in accordance with Form 535 or 536, of a debt or claim must be submitted to participate in the distribution.
5.6.65(3)
Subject to regulation 5.6.68, a person:
(a) who claims to be a creditor; and
(b) who does not submit a formal proof of a debt or claim on or before the date specified in the notice given under subregulation (1);
is excluded from participating in the distribution to which that notice relates.
REGULATION 5.6.66 TIME ALLOWED FOR DEALING WITH FORMAL PROOF OF DEBT OR CLAIM 5.6.66(1)
If the liquidator has given notice in accordance with subregulation 5.6.65 (1), the liquidator must:
(a) within 14 days after the date shown in the notice; or
(b) within such further period as ASIC allows;
in writing:
(c) before the end of that period:
(i) admit a formal proof of debt or claim received by the liquidator; or
(ii) reject it; or
(iii) admit part of it and reject part of it; or
(iv) require further evidence in support of it; and
(d) give notice of the liquidator's decision to the creditor who submitted the proof.
5.6.66(2)
If, within whichever period is applicable under paragraph (1)(a) or (b) or subregulation (3), the liquidator does not, in writing, deal with a formal proof of debt or claim in accordance with paragraphs (1)(c) and (d), the creditor who submitted the proof may apply to the Court for a decision on it.
5.6.66(3)
If the liquidator gives notice to a creditor that further evidence is required in relation to a formal proof of debt or claim submitted by the creditor:
(a) the liquidator must, in writing, deal with the formal proof of debt or claim in accordance with paragraphs (1)(c) and (d), within whichever period referred to in paragraph (1)(a) or (b) is applicable; and
(b) that period must be taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her request.
REGULATION 5.6.67 DECLARATION AND DISTRIBUTION OF DIVIDEND 5.6.67(1)
The liquidator must, as soon as practicable, declare and distribute a dividend among the creditors whose debts or claims have been admitted.
5.6.67(2)
The liquidator must distribute as dividend all money in hand except enough:
(a) to meet the costs of administration; or
(b) to give effect to the provisions of the Corporations Law.
5.6.67(3)
If the liquidator declares a dividend, he or she must send a notice of that declaration, in accordance with Form 549, to every person entitled to receive payment of the dividend.
REGULATION 5.6.68 RIGHTS OF CREDITOR WHO HAS NOT PROVED DEBT BEFORE DECLARATION OF DIVIDEND 5.6.68(1)
If:
(a) a creditor's debt or claim has not been admitted before the declaration of a dividend; and
(b) the debt or claim is admitted;
the creditor is entitled to be paid dividends that the creditor has failed to receive, out of any available money for the time being in the hands of the liquidator, before that money is applied to the payment of a further dividend.
5.6.68(2)
A creditor is not entitled to disturb the distribution of a dividend declared before the creditor's debt or claim was admitted.
REGULATION 5.6.69 5.6.69 POSTPONEMENT OF DECLARATION
If the liquidator postpones the declaration of a dividend past the date shown for that purpose in the notice published in the Gazette, the liquidator must publish a further notice in the Gazette, in accordance with Form 546, of the liquidator's intention to declare a dividend. REGULATION 5.6.70 5.6.70 PAYMENT OF DIVIDEND TO A PERSON NAMED
If a person to whom a dividend is payable lodges an authority in accordance with Form 550 with the liquidator, the liquidator must pay the dividend to the person to whom payment is directed by that authority. REGULATION 5.6.70A 5.6.70A PRESCRIBED RATE OF INTEREST ON DEBTS AND CLAIMS FROM RELEVANT DATE TO DATE OF PAYMENT
For the purposes of section 563B of the Corporations Law, the prescribed rate of interest on the amount paid in respect of an admitted debt or claim for the period starting on the relevant date and ending on the day on which the payment is made is 8% per year. REGULATION 5.6.71 DISTRIBUTION OF SURPLUS IN A WINDING UP BY THE COURT 5.6.71(1)
An order in a winding up by the Court authorising the liquidator to distribute any surplus to a person entitled to it must, unless the Court otherwise directs, have annexed to it a schedule in accordance with Form 551.
5.6.71(2)
The liquidator must send to each person to whom any surplus is distributed a notice in accordance with Form 552.
REGULATION 5.6.72 5.6.72 DISTRIBUTION OF SURPLUS AS DIRECTED
If a person who receives a notice of distribution of surplus in accordance with subregulation 5.6.71(2) lodges with the liquidator an authority in accordance with Form 553, the liquidator must distribute that surplus to the person to whom payment is directed by that authority. REGULATION 5.6.74 5.6.74 INTERPRETATION: PRESCRIBED COUNTRIES
For the purposes of the definition of prescribed country in section 580 of the Corporations Law, the following countries are prescribed:
(a) the Bailiwick of Jersey;
(b) Canada;
(c) the Independent State of Papua New Guinea;
(d) Malaysia;
(e) New Zealand;
(f) the Republic of Singapore;
(g) Switzerland;
(h) the United Kingdom;
(i) the United States of America. CHAPTER 6 - TAKEOVERS PART 6.2 - EXCEPTIONS TO THE PROHIBITION REGULATION 6.2.01 6.2.01 PRESCRIBED CIRCUMSTANCES (CORPORATIONS LAW S 611)
For the purposes of item 20 in the table in section 611 of the Corporations Law, the acquisition of a relevant interest in voting shares in a following body corporate is prescribed:
(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown in right of a State or Territory;
(b) a corporation sole;
(c) a society, association or union registered under Co-operation Act, 1923 of New South Wales;
(f) a foreign company or recognised company in respect of which an exemption from compliance with subsection 61(1) of the Co-operation Act 1923 of New South Wales is in force;
(g) a society within the meaning of The Co-operative and Other Societies Act of 1967 or The Co-operative Housing Societies Act of 1958 of Queensland;
(i) an association within the meaning of The Primary Producers' Co-operative Associations Act of 1923 of Queensland;
(j) an association, society, institution or body incorporated under the Associations Incorporation Act 1981 of Queensland;
(k) a body incorporated or deemed to be incorporated by or under a law of South Australia other than the Companies Code (South Australia) or a corresponding previous enactment of South Australia;
(l) a society (other than a society that is a financial institution) within the meaning of section 5 of the Building Societies Act 1976 of Western Australia;
(n) a co-operative company registered under Part VI of the Companies (Co-operative) Act 1943 or a corresponding previous enactment of Western Australia;
(o) a society registered under the Co-operative and Provident Societies Act 1903 of Western Australia;
(p) an association, society, institution or body incorporated under the Associations Incorporation Act 1895 of Western Australia;
(q) a trustee bank registered under the Trustee Banks Act 1984 of Tasmania;
(r) a society (other than a society that is a financial institution) registered under the Co-operative Industrial Societies Act 1928 of Tasmania;
(ra) a society registered under the Co-operative Housing Societies Act 1963 of Tasmania;
(s) an association, society, institution or body incorporated under the Associations Incorporations Act 1964 of Tasmania;
(t) a body corporate created by section 75Q of the Conveyancing and Law of Property Act 1884 of Tasmania;
(u) a society (other than a society that is a financial institution) registered under the Co-operative Societies Act 1939 of the Australian Capital Territory;
(v) an association, society, institution or body incorporated under the Associations Incorporation Act 1953 of the Australian Capital Territory;
(w) a corporation constituted under the Unit Titles Act 1970 of the Australian Capital Territory;
(x) a society registered under the Co-operatives Act 1997 of the Northern Territory. REGULATION 6.2.02 6.2.02 OTHER PRESCRIBED CIRCUMSTANCES (CORPORATIONS LAW S 611)
For the purposes of item 20 in the table in section 611 of the Corporations Law, the acquisition by a person of a relevant interest in voting shares in a body corporate that results from the person holding an office specified in Schedule 3 is prescribed. PART 6.10 - REVIEW AND INTERVENTION REGULATION 6.10.01 6.10.01 APPLICATION FOR REVIEW OF PANEL DECISION (CORPORATIONS LAW S 657EA)
For the purposes of subsection 657EA(3) of the Corporations Law, an application for review of a decision of the Panel must not be made later than 2 business days after the day on which the decision was made. CHAPTER 6D - FUNDRAISING PART 6D.2 - DISCLOSURE TO INVESTORS ABOUT SECURITIES REGULATION 6D.2.01 6D.2.01 EXEMPTION - MEMBER SHARES
Part 6D.2 of the Corporations Law does not apply to an offer of a member share within the meaning given by regulation 12.8.03. REGULATION 6D.2.02 6D.2.02 EXEMPTION - FOREIGN COMPANIES
Part 6D.2 of the Corporations Law does not apply to an offer under a dividend reinvestment plan or bonus share plan of fully-paid shares in a foreign company to an existing holder of shares in the foreign company. CHAPTER 7 - SECURITIES PART 7.1 - INTERPRETATION REGULATION 7.1.01 7.1.01 DEFINITION OF AUTHORISED TRUSTEE CORPORATION
For the purposes of the definition of authorised trustee corporation in section 9 of the Corporations Law, each of the bodies corporate listed in Schedule 9 is declared to be an authorised trustee corporation for the purposes of the provision in which the expression appears. REGULATION 7.1.03 7.1.03 OPTION CONTRACT - PRESCRIBED INDEXES
The following indexes are prescribed for subparagraph (b)(ii) of the definition of option contract in section 9 of the Corporations Law:
(a) S&P/ASX 50 Share Price Index;
(b) S&P/ASX 20 Share Price Index;
(c) S&P/ASX All Industrials Share Price Index;
(d) S&P/ASX All Resources Share Price Index;
(e) S&P/ASX Gold Share Price Index;
(f) Dow Jones Asia-Pacific Extra Liquid Series - Australia Equity Index;
(g) Dow Jones Asia-Pacific Extra Liquid Series - Hong Kong Equity Index;
(h) Dow Jones Asia-Pacific Extra Liquid Series - Japan Equity Index;
(i) Dow Jones Asia-Pacific Extra Liquid Series - Pan Pacific Equity Index;
(j) FT-SE 100 Index;
(k) Nikkei Index;
(l) S&P 500 Composite Stock Price Index;
(m) S&P/ASX 100 Accumulation Index;
(n) All Ordinaries Accumulation Index;
(o) S&P/ASX 100 Share Price Index;
(p) S&P/ASX 200 Share Price Index;
(q) S&P/ASX 300 Share Price Index;
(r) S&P/ASX Small Ordinaries Share Price Index;
(s) S&P/ASX Small Ordinaries Accumulation Index;
(t) Share Price Index. PART 7.2 - SECURITIES EXCHANGES REGULATION 7.2.01 SECURITIES EXCHANGES - INFORMATION EXEMPT FROM LODGEMENT REQUIREMENTS 7.2.01(1)
For the purposes of subsection 776(2C) of the Corporations Law, subsection 776(2B) of the Corporations Law does not apply to the following information:
(a) a Stock Exchange Automated Trading System notification message;
(b) an Australian Stock Exchange voiceline announcement.
7.2.01(2)
In this regulation:
Stock Exchange Automated Trading System notification message
means a brief message that is transmitted to computer terminals of persons linked to the Stock Exchange Automated Trading System, that is a summary of information lodged with the Australian Stock Exchange by a company or other entity that is included in the official list of a stock exchange.
Australian Stock Exchange voiceline announcement
means a message from the Australian Stock Exchange spoken over an announcement system, that is a summary of information lodged with the Australian Stock Exchange by a company or other entity that is included in the official list of a stock exchange.
REGULATION 7.2.02 7.2.02 COMPLIANCE MONITORING - SECTION 770A STOCK MARKETS
For the purposes of paragraph 770A(2)(b) of the Corporations Law, a person or partnership is not qualified to monitor compliance with the business rules of the responsible entity of a registered scheme in the conduct of a stock market that is approved by the Minister under subsection 770A(1) of that Law, if:
(a) that person or partnership is an associate of the responsible entity; and
(b) the person is not registered as an auditor under Part 9.2 of the Law; and
(c) no member of the partnership is so registered. PART 7.3 - PARTICIPANTS IN THE SECURITIES INDUSTRY REGULATION 7.3.01 7.3.01 LICENSEE TO NOTIFY EVENTS ADVERSELY AFFECTING FINANCIAL POSITION
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to a condition that if any event occurs that may adversely affect the financial position of the holder of a licence, the holder must, not later than the day after the day on which he or she becomes aware of it, give notice in writing to ASIC setting out particulars of the event. REGULATION 7.3.01A EXEMPTIONS FROM CHAPTER 7 OF THE CORPORATIONS LAW 7.3.01A(1)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to a dealing in securities by the Exchange or a subsidiary of the Exchange for the purpose of, or in connection with, providing a facility:
(a) under the Exchange's transfer delivery service provisions as defined in subsection 920(1) of the Corporations Law; or
(b) for the provision of a guaranteed securities loan as defined in subsection 954B(1) of the Corporations Law; or
(c) under the provisions of business rules of a kind referred to in paragraphs 954N(1)(a) and (b) or 954P(1)(a) and (b) of the Corporations Law.
7.3.01A(2)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to an act carried out by:
(a) an employee of the Exchange or a subsidiary of the Exchange; or
(b) a person acting for the Exchange or a subsidiary of the Exchange; or
(c) a person acting under an agreement with the Exchange or a subsidiary of the Exchange;
for the purposes of a dealing in securities of a kind referred to in subregulation (1).
REGULATION 7.3.01B EXEMPTIONS FROM CHAPTER 7 OF THE CORPORATIONS LAW - DEALINGS BY THE EXCHANGE OR OCH 7.3.01B(1)
In this regulation:
OCH
means Options Clearing House Proprietary Limited.
relevant agreement
means a relevant agreement that is prescribed for the purposes of paragraph 92A(1)(b) of the Corporations Law.
7.3.01B(2)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to a dealing in securities or in a relevant agreement if that dealing is effected by the Exchange or OCH for the purposes of, or in connection with, the establishment, enforcement, administration or observance of the business rules of the Exchange that relate to securities or relevant agreements registered or to be registered with OCH.
7.3.01B(3)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to an act carried out by:
(a) an employee of the Exchange or OCH; or
(b) a person acting for the Exchange or OCH; or
(c) a person acting under an agreement with the Exchange or OCH;
for the purposes of a dealing in securities or in a relevant agreement of a kind referred to in subregulation (2).
REGULATION 7.3.02 CONDITIONS TO WHICH LICENCES ARE SUBJECT 7.3.02(1)
For the purposes of section 786 of the Corporations Law, a licence is subject to the conditions that the holder of the licence must ensure that each representative of the holder:
(a) is adequately supervised in the performance of the duties that he or she is required by the holder to perform; and
(b) is sufficiently trained in relation to those duties before acting as a representative; and
(c) keeps up to date in relation to those duties by means of continuing training programs.
7.3.02(2)
ASIC may, by notice in writing, require a holder of a licence to satisfy it that the conditions referred to in subregulation (1) have been met by the holder.
REGULATION 7.3.02B LICENCE CONDITIONS - INVESTMENT ADVICE TO RETAIL INVESTORS 7.3.02B(1)
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to the condition that, if the licensee gives investment advice to a retail investor, the licensee must meet the requirements of subregulations (2), (4) and (5).
7.3.02B(2)
Subject to subregulation (3), the licensee must give to a retail investor an Advisory Services Guide:
(a) in the case of investment advice given in person - not later than when that advice is given; or
(b) in the case of an execution-related telephone advice - at the earliest practicable opportunity after the licensee (or a representative of the licensee) gives the advice but not later than 3 days after the trading following the advice; or
(c) in any other case - at the earliest practicable opportunity after the licensee (or a representative of the licensee) gives investment advice.
7.3.02B(3)
Subregulation (2) does not apply if:
(a) the licensee has given an Advisory Services Guide to the retail investor in relation to investment advice previously given to the investor; or
(b) the investment advice given is general securities advice given, in accordance with regulation 7.3.02D, to persons generally in a non-personal context (for example, at an investment seminar, by means of brochures or newsletters or through advertisements).
7.3.02B(4)
The licensee must be a member of an external complaints resolution scheme approved by the Commission.
7.3.02B(5)
The licensee must have in place at all times, to deal with complaints from retail investors, internal complaints-handling procedures that are in accordance with Australian Standard AS4269 1995, Complaints Handling, as in force on 1 October 1998.
7.3.02B(6)
For subregulation (2), the Advisory Services Guide must contain information that a retail investor reasonably requires to:
(a) clearly understand the nature of the investment advice service being offered; and
(b) compare the services offered by the licensee with similar services offered by other licensees; and
(c) clearly identify:
(i) the licensee; and
responsible for the investment advice to be given to the investor; and
(ii) the individual representative (if any) of the licensee;
(d) clearly understand the nature of, and method of calculating, in relation to the service:
(i) all charges payable to the licensee by the investor; or
(ii) any other amount payable to the licensee, including a commission payable by a third party; and
(e) clearly understand the basic rights of the investor in relation to the licensee, and any representative of the licensee, giving investment advice to the retail investor; and
(f) use available complaints procedures if dissatisfied with a service received from the licensee.
7.3.02B(7)
If a change occurs in relation to an item of information mentioned in subregulation (6) and the relationship between the licensee and the retail investor to whom the licensee has given an Advisory Services Guide under subregulation (2) is continuing, or the licensee has a reasonable expectation that the retail investor will seek further investment advice from the licensee, the licensee must give, at the earliest practicable opportunity after the change, an updated Advisory Services Guide to the retail investor.
7.3.02B(8)
Subject to subregulation (9), a person is not a retail investor if:
(a) the person is the holder of a dealers licence; or
(b) the person is the holder of an investment advisers licence; or
(c) the person is an exempt dealer; or
(d) the person is an exempt investment adviser; or
(e) the person is a body corporate registered under the Life Insurance Act 1995; or
(f) the person is an authorised deposit-taking institution as defined in section 5 of the Banking Act 1959; or
(g) the person is a bank constituted by or under a law of a State or Territory; or
(h) the person is the trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust within the meaning of the Superannuation Industry (Supervision) Act 1993 that has more than 100 members; or
(i) the person is the responsible entity or other operator of a managed investment scheme and:
(i) the person has aggregate funds under its management that is not less than $50,000,000; and
(ii) in relation to each scheme under its management:
(A) the total amount of the funds under management is not less than $10,000,000; and
(B) the total number of members is not less than 50; or
(j) the person is the responsible entity or other operator of a managed investment scheme that has:
(i) net assets of not less than $10,000,000; and
(ii) more than 100 members; or
(m) the person is an exempt public authority; or
(n) the person is an investment company as defined in subregulation 7.3.12(3); or
(o) the person is a listed company; or
(p) the person is a company (other than a company mentioned in paragraph (n) or (o)) that is a large proprietary company:
(i) at the deadline for lodgment of the reports mentioned in subsection 319(1) of the Corporations Law in relation to the last financial year; or
(ii) if that subsection does not apply to the company in relation to the last financial year, at the date when the company receives the advice from the licensee; or
(q) the person is a related body corporate of a listed company; or
(qa) the person is an unlisted public company that satisfies at least 2 of the following subparagraphs:
(i) the consolidated gross operating revenue for the financial year of the company and the entities it controls (if any) is $10 million or more;
(ii) the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is $5 million or more;
(iii) the company and the entities it controls (if any) have 50 or more employees at the end of the financial year; or
(r) the person is a foreign entity that, if established or incorporated in Australia, would be a person described in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) or (qa).
7.3.02B(9)
A person mentioned in paragraph (8)(a), (b), (c), (d) or (q) is a retail investor in relation to an investment advice given to that person by the licensee if:
(a) the person has made a request, in writing, to the licensee to be treated as a retail investor in relation to the investment advice; and
(b) the person has not revoked the request.
7.3.02B(10)
In this regulation:
execution-related telephone advice
means investment advice relating to quoted securities:
(a) that is given by a stockbroker or other dealer as an integral part of the execution of a transfer of, or order for, those securities; and
(b) for which no fee is charged in addition to the commission for the execution of the transfer or order.
general securities advice
means advice or report on securities given to an investor or prospective investor without recommending (whether expressly or impliedly and whether directly or indirectly) that a particular transaction in those securities is appropriate to the particular investment needs, objectives and financial circumstances of the investor or prospective investor.
give
, in relation to investment advice, includes make available (for example, by leaving brochures for an investor or prospective investor to peruse).
retail investor
, in relation to investment advice, means:
(a) a person other than a person that, under subregulation (8), is not a retail investor; or
(b) a person who is a retail investor under subregulation (9).
REGULATION 7.3.02C LICENCE CONDITIONS - PERSONAL SECURITIES RECOMMENDATIONS TO RETAIL INVESTORS 7.3.02C(1)
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to the condition that, if the licensee gives a personal securities recommendation to a retail investor and the retail investor fails to give to the licensee relevant personal information, the licensee must give to the investor a clear warning that:
(a) states that the licensee has not been able to undertake a comprehensive analysis of the investment objectives, financial situation and particular needs of the investor; and
(b) sets out the limitations on the appropriateness of the recommendation because of the lack of relevant personal information about the investor; and
(c) states that the investor needs to consider whether the recommendation is appropriate in light of the particular investment needs, objectives and financial circumstances of the investor.
7.3.02C(2)
In this regulation:
personal securities recommendation
means a recommendation given to a person (whether expressly or impliedly and whether directly or indirectly) that certain securities transactions are appropriate to the person, having regard to the investment objectives, financial situation and particular needs of that person.
relevant personal information
means information that is sufficient in order to have a reasonable basis, under section 851 of the Corporations Law, for making a securities recommendation.
retail investor
has the same meaning as in subregulation 7.3.02B(10).
REGULATION 7.3.02D LICENCE CONDITIONS - GENERAL SECURITIES ADVICE TO INVESTOR OR PROSPECTIVE INVESTOR 7.3.02D(1)
For the purposes of subsection 786(1) of the Corporations Law, a licence is subject to the condition that, if the licensee gives general securities advice, the licensee must clearly warn a retail investor or prospective retail investor, at the time when the licensee gives the advice, that:
(a) in preparing the advice, the licensee did not take into account the investment objectives, financial situation and particular needs of any particular person; and
(b) before making an investment decision on the basis of that advice, the retail investor or prospective retail investor needs to consider, with or without the assistance of a securities adviser, whether the advice is appropriate in light of the particular investment needs, objectives and financial circumstances of the retail investor or prospective retail investor.
7.3.02D(2)
If general securities advice is given in a document, the warnings mentioned in paragraphs (1)(a) and (b) must be contained in that document.
7.3.02D(3)
In this regulation:
general securities advice
has the same meaning as in subregulation 7.3.02B(10).
give
has the same meaning as in subregulation 7.3.02B(10).
retail investor
has the meaning given by subregulation 7.3.02B(10).
REGULATION 7.3.03 7.3.03 AMOUNT OF SECURITY
For the purposes of paragraph 786(2)(d) of the Corporations Law, the prescribed amount is $20,000. REGULATION 7.3.04 APPLICATION OF SECURITY UNDER SUBSECTION 786(9) OF THE CORPORATIONS LAW 7.3.04(1)
For the purposes of subsection 786(9) of the Corporations Law, a security lodged with ASIC in relation to a licence may be applied by ASIC in accordance with this regulation to compensate a person who has suffered pecuniary loss due to the failure of the licensee, or an agent or employee of the licensee, to carry on businessunder the licence adequately and properly.
7.3.04(2)
Subregulation (1) applies whether or not the licensee, agent or employee has been convicted of an offence in relation to the failure.
7.3.04(3)
A security must not be applied to compensate a person unless the claim for compensation is lodged in writing by, or on behalf of, that person no later than:
(a) if ASIC has, by notice published in accordance with subregulation (4), advertised for claims for compensation to be paid out of the security and specified a date not less than 3 months after publication of the notice - that date; or
(b) if no notice is published and paragraph (c) does not apply - 6 months after the person becomes aware that he or she has suffered the pecuniary loss; or
(c) a later date ASIC allows in a particular case.
7.3.04(4)
A notice mentioned in paragraph (3)(a) must be published:
(a) in a daily newspaper of general circulation in this jurisdiction; and
(b) if ASIC so requires - in a newspaper circulating generally in a State or Territory where the holder of the licence, or the agent or employee, carries on business under the licence.
7.3.04(5)
ASIC must give the licensee an opportunity of being heard before deciding whether a person is to be compensated under subregulation (1).
7.3.04(6)
For the purposes of this regulation, the amount of pecuniary loss that a person may claim is the amount worked out using the formula:
loss + costs − other entitlements
where:
loss
means the pecuniary loss suffered by the person.
costs
means the total of the amounts that ASIC thinks are:
(a) the reasonable costs of; and
(b) disbursements of a reasonable amount that are incidental to;
making and proving the claim.
other entitlements
means the amount or value of all moneys and other benefits paid or payable to the person by a person other than ASIC in reduction of the pecuniary loss.
7.3.04(7)
A security that is applied by ASIC must be applied:
(a) if the total of the admitted claims does not exceed the amount of the security - in the payment in full of those amounts; or
(b) if that total exceeds the amount of the security - in the payment of a proportion of the amount at which each of those claims was admitted.
7.3.04(8)
The proportion mentioned in paragraph (7)(b) must be the same as the proportion that the amount of the security bears to the total of the admitted claims.
REGULATION 7.3.05 7.3.05 PRESCRIBED FORM: SECTION 790 OF THE LAW
For the purposes of section 790 of the Corporations Law, particulars of a change in the matters referred to in paragraph 789(3)(b) of the Law must be lodged:
(a) by the person who becomes a director or secretary of the body corporate in accordance with Form 704; and
(b) by the holder of the licence in accordance with Form 304. REGULATION 7.3.06 DISCHARGE, RETURN OR RELEASE OF SECURITY 7.3.06(1)
ASIC may:
(a) discharge in whole or part a security maintained by it under a condition of a licence; or
(b) return the security in whole or part; or
(c) release, in whole or in part, any surety who provided the security;
if:
(d) a person ceases to hold the licence; or
(e) the potential liability of the licence holder is reduced; or
(f) it is reasonable in the circumstances for the amount of the security to be reduced; or
(g) it is reasonable in the circumstances for the security not to be maintained;
and a written application is made by the former licence holder, the licence holder, or any surety who provided the security.
7.3.06(2)
ASIC must not exercise a power under subregulation (1) until 3 months after the date on which a notice in accordance with Form 702 is published:
(a) in a daily newspaper of general circulation in this jurisdiction; and
(b) if ASIC so requires - in a newspaper circulating generally in a State or Territory where the holder of the licence carried on business under the licence;
asking for particulars in writing of any claim in respect of the security to be lodged before the end of the 3 month period.
7.3.06(3)
A notice must be published by, and at the expense of, the person making the application.
7.3.06(4)
If a claim is made in relation to a security:
(a) in response to a notice under subregulation (2); or
(b) for compensation under regulation 7.3.04;
a surety who provided the security:
(c) may; and
(d) on the written application of any person who holds, or held, the licence, must;
ask ASIC in writing to act in accordance with subregulation (5).
7.3.06(5)
If a surety's liability under a security maintained with ASIC under a condition of a licence is substantially in excess of the surety's liability under all claims referred to in subregulation (4), ASIC may:
(a) direct that the instrument under which the surety's liability arises be varied; or
(b) return to the surety the proportion of the security that exceeds the surety's liability under all claims referred to in subregulation (4); or
(c) refer any matter in dispute to a court, or an arbitrator, for determination; or
(d) release the surety wholly or in part.
REGULATION 7.3.07 EFFECT OF DISCHARGE OF SECURITY 7.3.07(1)
If a security is discharged, wholly or in part, by ASIC:
(a) a claim does not lie against the surety in relation to the obligation to which the security relates to the extent that he or she has been released from that obligation; and
(b) the surety must return to the holder of the licence on whose behalf the security was given:
(i) the whole; or
of any money or other property deposited with or held by the surety to cover the potential liability of the surety under the security.
(ii) in the case of a partial discharge - the proportion that ASIC directs;
7.3.07(2)
If ASIC directs that a security be discharged in part:
(a) it may state that the surety is not released from the obligations relating to those claims that ASIC specifies; and
(b) the surety remains subject to any claims that are so specified.
REGULATION 7.3.08 7.3.08 REGISTER OF HOLDERS OF PROPER AUTHORITIES: PRESCRIBED INFORMATION
For the purposes of paragraph 810(3)(e) of the Corporations Law, the date of birth of each person who holds a proper authority from the licensee is prescribed information. REGULATION 7.3.09 7.3.09 LICENSEES TO NOTIFY COMMISSION OF LOCATION AND CONTENTS OF REGISTERS
Subsections 810(4), (5) and (6) and 811(4), (5), (6) and (7) of the Corporations Law do not have effect in relation to a person:
(a) who is or may be a dealer or investment adviser only because of his or her doing anything that is incidental to another business; and
(b) who has established a register under section 810 of the Law of more than 100 persons;
if that person complies with the requirements of each of those subsections within 12 business days after the beginning of the period referred to in each respective subsection.
REGULATION 7.3.10 7.3.10 EXEMPTIONS FROM LICENSING FOR LENDERS ETCDivisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to:
(a) the acquisition or disposal of, or an agreement to acquire or dispose of, securities or documents of title to securities; or
(b) a mortgage or charge in respect of securities or documents of title to securities;
done or entered into:
(c) by a person whose ordinary business includes the lending of money; and
(d) by way of security, principally for the purposes of a transaction entered into in the ordinary course of business in lending money or providing credit. REGULATION 7.3.10A 7.3.10A EXEMPTION FROM LICENSING - CERTAIN DEALINGS
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to a dealing in or with an interest in a superannuation scheme if:
(a) the interest in superannuation scheme is wholly underwritten by 1, or more than 1, life policy within the meaning of the Life Insurance Act 1995; and
(b) the dealing involves a life company within the meaning of that Act, or a life insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984, or an employee, agent or sub-agent of the life company or life insurance broker. REGULATION 7.3.11 EXEMPTION FROM LICENSING - MANAGED INVESTMENT SCHEMES 7.3.11(1)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not apply to a dealing in or with an interest in a managed investment scheme:
(a) that is not, and is not required under section 601ED of the Law to be, registered under section 601EB of the Law; or
(b) in relation to which the person operating the scheme is exempt from subsection 601ED(5) of the Law.
7.3.11(2)
However, subregulation (1) does not apply to a dealing in or with an interest in:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) a pooled superannuation trust;
within the meaning of the Superannuation Industry (Supervision) Act 1993.
7.3.11(2A)
Also, subregulation (1) does not apply to a dealing in, or with an interest in, a friendly society benefit fund.
7.3.11(3)
Part 7.7 of the Corporations Law does not apply to a body corporate in relation to an interest in a registered scheme made available by the body corporate in accordance with Chapter 5C and Chapter 6D of the Law.
REGULATION 7.3.12 EXEMPTION FROM LICENSING - DEALINGS IN OWN SECURITIES AND SUB-UNDERWRITING 7.3.12(1)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Lawdo not have effect in relation to:
(a) a dealing entered into between a person and:
(i) a government or local government authority; or
(ii) a public authority or an instrumentality or agency of the Crown; or
in securities except an interest in a managed investment scheme, being securities of that government, authority, instrumentality, agency or body; or
(iii) a body corporate or unincorporate;
(b) a transaction entered into by a sub-underwriter of an issue of securities except an interest in a managed investment scheme, that relates only to the sub-underwriting of the issue.
7.3.12(2)
Paragraph (1)(a) does not apply to a dealing entered into between a person and an investment company in securities of that company except an interest in a managed investment scheme.
7.3.12(3)
In subregulation (2), investment company means a body corporate or an unincorporated body that:
(a) carries on a business of investment in securities, interests in land or other investments; and
(b) for those purposes invests funds subscribed:
(i) directly; or
following:
(ii) indirectly;
(iii) an offer; or
to the public within the meaning of section 82 of the Corporations Law, on terms that the funds subscribed would be invested for those purposes.
(iv) an invitation;
REGULATION 7.3.13 EXEMPTIONS FROM LICENSING - SUPERANNUATION SCHEMES, LIFE OFFICES AND FRIENDLY SOCIETIES 7.3.13(1)
Divisions 1 and 3 of Part 7.3 and Parts 7.5, 7.6 and 7.7 of the Corporations Law do not have effect in relation to a dealer who:
(a) is a trustee for a superannuation scheme; and
(b) deals in securities only in relation to the management and administration of the superannuation scheme.
7.3.13(2)
Parts 7.5 and 7.6 of the Corporations Law do not have effect in relation to a body corporate (except a friendly society) registered under the Life Insurance Act 1995 that only deals in securities in relation to the carrying on of the life insurance business.
7.3.13(3)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to any act done by a person:
(a) employed by; or
(b) acting for or by arrangement with;
a dealer referred to in subregulation (1) only because the person:
(c) is so employed; or
(d) so acts;
if the act is an act to which subregulation (1) would apply if done by that dealer.
7.3.13(4)
Divisions 1 and 3 of Part 7.3, and Parts 7.5, 7.6 and 7.7, of the Corporations Law do not have effect in relation to a friendly society that only deals in interests in the friendly society benefit fund.
REGULATION 7.3.13A ACTION BY REPRESENTATIVES OF CERTAIN FRIENDLY SOCIETIES 7.3.13A(1)
In this regulation:
Friendly Societies Code of this jurisdiction
has the meaning given by clause 1 of Schedule 4 to the Corporations Law.
7.3.13A(2)
This regulation applies in relation to a friendly society that only deals in, or with interests in, a benefit fund of the friendly society.
7.3.13A(3)
A person must not represent a friendly society in relation to dealing in, or with interests in, the friendly society benefit fund unless the person is an individual who:
(a) is authorised, in the approved form, to deal in the fund, or with the interests, as a representative of the society; or
(b) was, immediately before the transfer date, authorised to deal in the fund, or with the interests, as a representative of the society under:
(i) the Friendly Societies Code of this jurisdiction in the prescribed form for that Code that is endorsed in accordance with paragraphs 184(a) and (b) of the Code; or
(ii) a certificate of incorporation of the friendly society under the Friendly Societies Code of this jurisdiction that is endorsed in accordance with paragraphs 184(a) and (b) of the Code.
Penalty: 10 penalty units.
7.3.13A(4)
However, the person may represent the friendly society if, at the time of the offence, the person reasonably believed that he or she was authorised as a representative of the friendly society.
7.3.13A(5)
For subregulation (3), the friendly society must not authorise a person as a representative of the society if a banning order prohibits the person, except as permitted by the order, from acting as a representative of the society.
7.3.13A(6)
A person must not represent a friendly society in relation to dealing in, or with interests in, the friendly society benefit fund if a banning order prohibits the person, except as permitted by the order, from acting as a representative of the society.
Penalty: 10 penalty units.
REGULATION 7.3.13B 7.3.13B FRIENDLY SOCIETY DEALING IN INTERESTS IN FRIENDLY SOCIETY BENEFIT FUND
A friendly society in relation to which regulation 7.3.13A applies is taken to be a licensee to which the following provisions of the Corporations Law apply:
(a) sections 810, 811, 812 and 815;
(b) Division 4 of Part 7.3;
(c) Division 3 of Part 7.4. REGULATION 7.3.13C 7.3.13C AUTHORISATION TO DEAL IN INTERESTS IN CERTAIN FRIENDLY SOCIETIES
If a person was, immediately before the transfer date, authorised by a friendly society as described in subregulation 7.3.13A(3), the authorisation is taken to be a proper authority to which the following provisions of the Corporations Law apply:
(a) section 814;
(b) subsections 816(1) and (3). REGULATION 7.3.14 EXEMPTION FROM LICENSING ETC - AUSTRALIAN ADIS 7.3.14(1)
Sections 780 and 842 and Parts 7.5, 7.6 and 7.7 of the Corporations Law do not have effect in relation to an Australian ADI only because, in relation to the carrying on of the business of banking, the Australian ADI:
(a) deals in securities issued, or proposed to be issued, by a government, a local government authority or a public authority; or
(b) accepts appointment as, or acts as, banker in respect of an issue of securities.
7.3.14(2)
Section 806 and Part 7.7 of the Corporations Law do not have effect in relation to any act done by a person who is employed by an Australian ADI that deals in securities only in connection with the business of banking if the act is an act done on behalf of the Australian ADI in relation to:
(a) a dealing by the Australian ADI in securities issued or proposed to be issued by a government, local government authority or public authority; or
(b) the appointment of the Australian ADI as a banker in respect of an issue of securities.
REGULATION 7.3.14A 7.3.14A EXEMPTIONS FROM LICENSING
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7, and section 842, of the Corporations Law do not have effect in relation to a friendly society benefit fund that is:
(a) a health benefits fund that is conducted by a registered organisation within the meaning of the National Health Act 1953; or
(b) a superannuation entity within the meaning of the Superannuation Industry (Supervision) Act 1993. REGULATION 7.3.15 7.3.15 SALE OF FORFEITED SHARES EXEMPT (ACT, S 30)
Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7 and section 842 of the Corporations Law do not have effect in relation to the sale or purchase of any share in a no liability company registered under that Law or a corresponding law if the share is offered for sale by public auction under section 254Q of the Law or a corresponding law by a person who is the holder of a licence under a law relating to the licensing of auctioneers. REGULATION 7.3.16 EXEMPTION FROM CHAPTER 7 - TRANSACTIONS IN OPTION CONTRACTS ON THE NZFOE MARKET (ACT, S 30) 7.3.16(1)
In this regulation:
exempt futures market
means the futures market conducted by NZFOE and declared to be an exempt futures market in the declaration made under subsection 1127(1) of the Corporations Law on 20 July 1993 and published in the Gazette on 10 August 1993.
NZFOE
means the New Zealand Futures & Options Exchange Limited.
NZFOE market
means the stock market operated by NZFOE in Australia by means of a computer facility through which:
(a) offers to sell, purchase or exchange option contracts are regularly made or accepted; or
(b) offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange option contracts; or
(c) information is regularly provided about the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange option contracts.
option contract
is an option contract, within the meaning of section 9 of the Corporations Law, relating to securities in respect of which option contracts may be traded on the NZFOE market.
SFE
means the Sydney Futures Exchange Ltd.
7.3.16(2)
Chapter 7 of the Corporations Law does not have effect in relation to a transaction involving an option contract on the NZFOE market, subject to the following conditions:
(a) Chapter 8 of the Corporations Law (other than Part 8.6) applies to the transaction as if the option contract were an eligible exchange-traded option;
(b) a person involved in the transaction is subject to the prohibitions and obligations set out in Chapter 8 of the Corporations Law (other than Part 8.6) as if the option contract were an eligible exchange-traded option;
(c) a person involved in the transaction, who contravenes a provision of Chapter 8 of the Corporations Law (other than Part 8.6), is subject to the penalties set out in Division 2 of Part 9.4 of the Corporations Law, or any other relevant provision of the Corporations Law, as if the option contract were an eligible exchange-traded option;
(d) NZFOE is subject to the prohibitions and obligations set out in Chapter 8 of the Corporations Law (other than Part 8.6) as if the option contract were an eligible exchange-traded option;
(e) if NZFOE contravenes a provision of Chapter 8 of the Corporations Law (other than Part 8.6), NZFOE is subject to the penalties set out in Division 2 of Part 9.4 of the Corporations Law, or any other relevant provision of the Corporations Law, as if the option contract were an eligible exchange-traded option;
(f) ASIC has the same powers in relation to the NZFOE market as it has under Chapter 8 of the Corporations Law (other than Part 8.6) in relation to a futures market of a futures exchange, except that ASIC may not give a direction to NZFOE under paragraph 1138(1)(d), (e) or (f) of the Corporations Law;
(g) ASIC has the same powers in relation to the transaction, and a person involved in the transaction, as it has under Chapter 8 of the Corporations Law (other than Part 8.6) as if the option contract were an eligible exchange-traded option;
(h) the NZFOE market must at all times be conducted in conjunction with the exempt futures market as if the markets were a single market;
(i) NZFOE is subject to:
(i) the conditions set out in the declaration relating to the exempt futures market, made under subsection 1127(1) of the Corporations Law on 20 July 1993 and published in the Gazette on 10 August 1993; and
as if NZFOE were part of the exempt futures market.
(ii) section 1127 of the Corporations Law;
REGULATION 7.3.17 APPLICATION OF CERTAIN PROVISIONS OF CORPORATIONS LAW TO SECTION 770A STOCK MARKETS 7.3.17(1)
In this regulation,
section 770A stock market
has the meaning given by section 9 of the Corporations Law.
7.3.17(2)
Sections 774 (other than subsection 774(4)), 775, 776, 777 and 1114 of the Corporations Law have effect, in respect of a section 770A stock market, as if a reference in those sections to a securities exchange were a reference to a responsible entity of a registered scheme in relation to unquoted interests in that scheme.
7.3.17(3)
Subsection 774(5) of the Corporations Law has effect, in relation to a section 770A stock market, as if:
(a) a reference in that subsection to the Minister were a reference to ASIC; and
(b) the words "under subsection (4)" in that subsection were omitted.
REGULATION 7.3.18 7.3.18 SUPERVISORS HAVE QUALIFIED PRIVILEGE IN CERTAIN CIRCUMSTANCES
For the purposes of section 770C of the Corporations Law, a supervisor within the meaning of paragraph 770A(2)(b) of that Law has qualified privilege in respect of:
(a) a statement made by that supervisor, orally or in writing, in the course of the performance by the supervisor of his or her duties under the business rules of the responsible entity; and
(b) notification by the supervisor under paragraph 770A(3)(c) of the Law. PART 7.4 - CONDUCT OF SECURITIES BUSINESS REGULATION 7.4.01 7.4.01 EXEMPT DEALER
Section 842 of the Corporations Law does not have effect in relation to the sale or purchase of securities by a dealer as agent for another person through a member of a securities exchange in Australia if the dealer, on receipt of the contract note, forthwith gives the contract note or a copy to the other person. REGULATION 7.4.01A EXEMPTION FROM CERTAIN REQUIREMENTS IN RELATION TO CONTRACT NOTES 7.4.01A(1)
In this regulation:
order
means an instruction to buy or sell securities.
7.4.01A(2)
Section 842 of the Corporations Law has effect in relation to a dealer to the extent that the requirements of the section are subject to this regulation.
Sending a contract note electronically
7.4.01A(3)
The requirement of subsection 842(2) of the Corporations Law that, in respect of a transaction of sale or purchase of securities, a dealer immediately give a contract note that complies with subsection 842(3) of the Law to the person for whom the dealer entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the client has given to the dealer prior authorisation to send any contract note electronically to the client in relation to that transaction or all transactions (or all transactions included in a class in which that transaction is included) entered into for the client by the dealer;
(b) the dealer sends the contract note electronically to the client in accordance with the authorisation.
Giving a single contract note for multiple transactions
7.4.01A(4)
The requirement of subsection 842(2) of the Corporations Law that, in respect of a transaction of sale or purchase of securities, a dealer immediately give a contract note that complies with subsection 842(3) of the Law to the person for whom the dealer entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the dealer is a member of a securities exchange;
(b) the transaction takes place in accordance with the business rules of the securities exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with the dealer;
(d) the client has given to the dealer, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with the dealer by the client, prior authorisation to give to the client a single contract note in respect of a series of transactions carried out under the order instead of an individual contract note in respect of each transaction in the series;
(e) the dealer gives to the client a single contract note in respect of a series of transactions in which the transaction is included that:
(i) is in accordance with the authorisation; and
(ii) subject to subregulation (5), complies with subsection 842(3) of the Law;
(f) the contract note is given:
(i) before the end of the business day on which that series of transactions was carried out; or
(ii) otherwise as permitted by the business rules of the securities exchange.
Price averaging
7.4.01A(5)
The requirement of paragraph 842(3)(g) of the Corporations Law that a contract note in respect of a transaction of sale or purchase of securities given to a person (the client ) by a dealer specify the price per unit of the securities to which the transaction relates is satisfied if the following conditions are satisfied:
(a) the dealer is a member of a securities exchange;
(b) the transaction takes place in accordance with the business rules of the securities exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with the dealer;
(d) the client has, in accordance with the business rules of the securities exchange, given to the dealer, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with the dealer by the client, prior authorisation to give to the client a single contract note in respect of the series of transactions that specifies the average price per unit of securities sold or purchased in the series of transactions, instead of an individual contract note in respect of each transaction in the series that specifies the price per unit of the securities bought or sold in the transaction to which each contract note relates;
(e) the dealer gives the contract note to the client in accordance with the authorisation;
(f) unless otherwise provided by the business rules of the securities exchange, the dealer, if requested to do so by the client, also gives to the client a document that specifies the price per unit of the securities sold or bought in each transaction in the series.
Authorisations
7.4.01A(6)
For this regulation, an authorisation given by a person to a dealer:
(a) must be given orally, or in writing, by the person; and
(b) is effective until it is revoked, either orally or in writing, by the person.
7.4.01A(7)
If a person gives an oral authorisation to a dealer, or revokes an authorisation orally, the dealer must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the person.
REGULATION 7.4.02 7.4.02 EXEMPT SECURITIES AND INTERESTS
Sections 842, 843 and 872 of the Corporations Law do not apply to the sale or purchase of securities, or interests in registered schemes, by a body corporate by which the securities or interests were made available in accordance with Chapter 5C and Chapter 6D of the Law. REGULATION 7.4.03 7.4.03 TRANSACTIONS IN PRESCRIBED CIRCUMSTANCES
For the purposes of subsection 842(6) of the Corporations Law, a transaction takes place in prescribed circumstances if the transaction takes place at an official meeting of a securities exchange in Australia between persons who are members of a securities exchange in Australia. REGULATION 7.4.04 EXEMPTED TRANSACTION 7.4.04(1)
In this regulation:
clearing member
has the same meaning as in the Business Rules.
option
means an option taken or written in accordance with the Business Rules.
registered trader
has the same meaning as in the Business Rules.
7.4.04(2)
Section 843 of the Corporations Law does not apply in relation to a transaction entered into by a dealer with a registered trader for the acquisition or disposal of an option, if:
(a) the registered trader is a person associated with the dealer only because the dealer is that registered trader's clearing member and the transaction is cleared by the registered trader through the dealer in accordance with the Business Rules; and
(b) the registered trader is not employed by the dealer or by the firm in which the dealer is a partner.
REGULATION 7.4.04A CHARGING BROKERAGE ON PRINCIPAL TRANSACTIONS 7.4.04A(1)
Subsection 843(4) of the Corporations Law has effect in relation to a dealer to the extent that it does not prevent a dealer who is a member of a securities exchange from charging a nondealer brokerage, commission or any other fee in respect of a transaction if the non-dealer has given to the dealer prior authorisation to so charge the non-dealer in respect of any transaction entered into by the dealer with the non-dealer.
7.4.04A(2)
For this regulation, an authorisation given to a dealer by a nondealer:
(a) must be given orally, or in writing, by the non-dealer; and
(b) is effective until it is revoked, either orally or in writing, by the non-dealer.
7.4.04A(3)
If a non-dealer gives an oral authorisation to a dealer, or revokes an authorisation orally, the dealer must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the non-dealer.
REGULATION 7.4.05 7.4.05 EXEMPTION FROM SUBSECTION 844(2) OF THE CORPORATIONS LAW
Subsection 844(2) of the Corporations Law does not have effect in relation to transactions entered into by a member of a stock exchange in accordance with the business rules of that stock exchange. REGULATION 7.4.06 7.4.06 DEALINGS BY EMPLOYEES OF HOLDERS OF LICENCES
Subsection 845(3) of the Corporations Law does not have effect in relation to:
(a) a bank; or
(b) a body corporate that gives credit in good faith to a person (not being a director of the body corporate) employed by the body corporate, or by another body corporate that is related to the first body corporate, to enable the person to purchase fully paid shares in the body corporate to be held in beneficial ownership by the person. REGULATION 7.4.07 7.4.07 EXEMPTION OF SALE OF EXCHANGE TRADED OPTIONS
Section 846 of the Corporations Law does not have effect in relation to a sale of securities that is done by the giving or writing of an option that is registered with Options Clearing House Proprietary Limited, or the Sydney Futures Exchange Clearing House Pty Limited. REGULATION 7.4.08 EXEMPTION OF SHORT SALE COVERED BY EXCHANGE TRADED OPTIONS 7.4.08(1)
In this regulation:
exchange traded options
means options registered with Options Clearing House Proprietary Limited, or the Sydney Futures Exchange Clearing House Pty Limited, according to their Business Rules.
seller
, in the case of a sale by an agent, means the principal.
unobtained shares
means shares of a class that a seller has agreed to sell but over which he or she does not, at the time of the sale, have a presently exercisable and unconditional right to vest in the buyer.
7.4.08(2)
Section 846 of the Corporations Law does not apply in relation to a sale of shares that consists of or includes unobtained shares if the seller is, at the time of the sale, able to obtain at least the number of shares of the same class as the unobtained shares by exercising exchange traded options.
7.4.08(3)
The number of shares of a class that a seller is able to obtain at the time of a sale is to be calculated using the formula:
SIO − SSO − PS
where:
SIO
(number of Shares Immediately Obtainable) means the number of shares of the class that, at the time of the sale, the seller is able to obtain by exercising exchange traded options at a price:
(a) that does not exceed the sale price payable to the seller under the sale; or
(b) that exceeds the sale price by an amount that is no more than an amount deposited by the seller with Options Clearing House Proprietary Limited, or the Sydney Futures Exchange Clearing House Pty Limited, before and in relation to the sale.
SSO
(number of Shares Subject to Options) means the number of shares of the class sold over which he or she has given or written exchange traded options that, at the time of sale, have not expired or been exercised.
PS
(number of unobtained shares Previously Sold) means the number of unobtained shares previously sold in sales that have not been completed at the time of the sale.
7.4.08(4)
The price payable by the seller for obtaining shares by exercising exchange traded options is to be calculated by reference first to the option with the lowest exercise price, then to the option with the second lowest exercise price, and so on in ascending order of price until the necessary number of options would have been exercised.
PART 7.5 - DEALER'S ACCOUNT AND AUDIT REGULATION 7.5.01 AUDITOR'S REPORT 7.5.01(1)
For the purposes of subsection 860(2) of the Corporations Law, the auditor's report must be in accordance with Form 712.
7.5.01(2)
For the purpose of preparing the auditor's report referred to in subregulation (1), the auditor must:
(a) check or examine:
(i) internal procedures applied to ensure compliance with section 856 of the Corporations Law in relation to securities held for sale or safe custody; and
(ii) the balancing of scrip accounts; and
(iii) the operation and control of trust account procedures; and
(b) in relation to any dealer who does not act only as a principal, check or examine:
(i) securities on hand and outstanding transactions, including confirmation from clients or other persons holding scrip; and
(ii) the clients' ledger, including the reconciliation of the trust account, the market value of security held for unpaid accounts and the incidence of doubtful debts; and
(iii) broker's agents and such other ledgers or records as the auditor considers it necessary to examine.
PART 7.6 - MONEY AND SCRIP OF DEALER'S CLIENTS REGULATION 7.6.01 DEALER'S TRUST ACCOUNTS: EXEMPT 7.6.01(1)
Sections 866, 867, 868 and 872 of the Corporations Law do not have effect in relation to a dealing in securities carried on by a body corporate to which this regulation applies.
7.6.01(2)
This regulation applies to a body corporate that is a public company as defined in section 9 of the Corporations Law and has a paid-up capital of not less than $4,000,000, the principal functions of which include:
(a) underwriting issues of securities;or
(b) advising and assisting bodies corporate in relation to:
(i) the raising of capital; or
(ii) corporate reconstructions and amalgamations; or
(iii) the acquisition of securities primarily for the purpose of controlling another body corporate or other bodies corporate; or
(c) doing anything incidental to the management and administration of investments of clients where the amount of the investments managed or administered for each client is not less than $200,000.
PART 7.7 - REGISTERS OF INTERESTS IN SECURITIES REGULATION 7.7.01 REGISTER OF INTERESTS IN SECURITIES 7.7.01(1)
A register required to be maintained under subsection 881(1) of the Corporations Law may be maintained in accordance with Form 714 or in a manner that enables the particulars required to be disclosed by Form 714 to be readily ascertained.
7.7.01(2)
If the person who maintains the Register is the holder of a licence who carries on business in partnership with another person, the Register must contain particulars of the securities in which the partnership has a relevant interest.
REGULATION 7.7.02 7.7.02 ENTRY OF PARTICULARS IN REGISTER
For the purposes of subsections 881(2) and (3) of the Corporations Law, particulars of securities must be entered in the Register in handwriting in ink of a type to provide satisfactory reproduction or by a mechanical means that allows for satisfactory copies of the entries to be made. PART 7.10 - THE NATIONAL GUARANTEE FUND REGULATION 7.10.01 7.10.01 PRESCRIBED RATE OF INTEREST: SUBSECTION 972(2) OF THE CORPORATIONS LAW
The prescribed rate of interest for the purposes of subsection 972(2) of the Corporations Law is 5% per annum. PART 7.11 - CONDUCT IN RELATION TO SECURITIES REGULATION 7.11.01 PROHIBITION OF DEALINGS IN SECURITIES BY INSIDERS 7.11.01(1)
Subsection 1002G(2) of the Corporations Law does not have effect in relation to:
(a) the obtaining by a director of a share qualification in accordance with subsection 223(1) of that Law; or
(b) the subscription for, and acquisition under that subscription of, securities of a body corporate by, or by a trustee for, employees of that body, or of a body corporate that is related to the first-mentioned body under a superannuation scheme, pension fund or other scheme established solely or primarily for the benefit of the employees; or
(c) a transaction entered into by a person in accordance with his or her obligations under an underwriting agreement; or
(d) a person holding the office of:
(i) personal representative of a deceased person; or
(ii) liquidator; or
in respect of any transaction entered into by the person in good faith in the performance of the functions of his or her office; or
(iii) trustee under Parts IV, X and XI of the Bankruptcy Act 1966;
(e) a sale of securities under:
(i) a mortgage or charge of the securities; or
(ii) a mortgage, charge, pledge or lien of documents of title to the securities.
PART 7.13 - TITLE TO, AND TRANSFER OF, SECURITIES REGULATION 7.13.01 7.13.01 MARKETABLE SECURITIES (CORPORATIONS LAW, S 1097(1))
For the purposes of paragraph (b) of the definition of marketable security in subsection 1097(1) of the Corporations Law, an interest in a managed investment scheme as defined in section 9 of that Law is a prescribed security if:
(a) it is an interest in a managed investment scheme that is registered under section 601EB of the Law or a corresponding law; and
(b) it is quoted on Australian Stock Exchange Limited. REGULATION 7.13.03 ELIGIBLE BODY: SUBSECTION 1097(1) OF THE CORPORATIONS LAW 7.13.03(1)
For the purposes of subparagraph (b)(ii) of the definition of eligible body in subsection 1097(1) of the Corporations Law, Westpac Banking Corporation is prescribed.
7.13.03(2)
For the purposes of subparagraph (c)(iii) of the definition of eligible body in subsection 1097(1) of the Corporations Law, The Australian Gas Light Company is prescribed.
PART 7.14 - MISCELLANEOUS REGULATION 7.14.01 7.14.01 PERIOD FOR WHICH DOCUMENTS ARE TO BE RETAINED
For the purposes of subsection 1116(5) of the Corporations Law, the prescribed period is 7 years. REGULATION 7.14.02 7.14.02 FUTURES CONTRACTS
Chapter 7 of the Corporations Law does not have effect in relation to a transaction effected by virtue of a futures contract:
(a) that is effected on a market of the Sydney Futures Exchange Limited; and
(b) that relates only to securities. CHAPTER 8 - THE FUTURES INDUSTRY PART 8.1 - INTERPRETATION REGULATION 8.1.01 8.1.01 EXEMPTION FROM PARTS 8.3, 8.4 AND 8.5 OF THE CORPORATIONS LAW
Parts 8.3, 8.4 and 8.5 of the Corporations Law do not have effect in relation to a service as a futures adviser or futures broker that is provided:
(a) by a body to another body that:
(i) owns or controls the first-mentioned body; and
(ii) conducts an exempt futures market; or
(b) by CSR Limited to the Crown in the right of Queensland, to the Queensland Sugar Board or to another public authority of Queensland in connection with the sugar industry; or
(c) by Snowy Hydro Trading Pty Ltd to the Commonwealth, to Pacific Power or to the State Electricity Commission of Victoria in connection with an exempt futures market conducted in Australia in relation to the wholesale price of electricity. REGULATION 8.1.01A 8.1.01A EXEMPTION OF TRANSACTIONS RELATING TO SPORTING EVENTS FROM CHAPTER 8 OF THE CORPORATIONS LAW
Chapter 8 of the Corporations Law does not have effect in relation to any transaction based on an agreement that comes within the definition of adjustment agreement in section 9 of the Corporations Law if that transaction relates to the course or outcome of a sporting event. REGULATION 8.1.02 8.1.02 ELIGIBLE EXCHANGE-TRADED OPTIONS
The following indexes are prescribed for paragraph (b) of the definition of eligible exchange-traded option in section 9 of the Corporations Law:
(a) S&P/ASX 50 Share Price Index;
(ab) S&P/ASX 20 Share Price Index;
(b) Dow Jones Asia-Pacific Extra Liquid Series - Australia Equity Index;
(c) Dow Jones Asia-Pacific Extra Liquid Series - Hong Kong Equity Index;
(d) Dow Jones Asia-Pacific Extra Liquid Series - Japan Equity Index;
(e) Dow Jones Asia-Pacific Extra Liquid Series - Pan Pacific Equity Index;
(f) All Ordinaries Accumulation Index;
(g) S&P/ASX 100 Accumulation Index;
(h) S&P/ASX 100 Share Price Index;
(i) S&P/ASX 200 Share Price Index;
(j) S&P/ASX 300 Share Price Index;
(k) S&P/ASX Small Ordinaries Share Price Index;
(l) S&P/ASX Small Ordinaries Accumulation Index;
(m) Share Price Index. PART 8.2 - FUTURES EXCHANGES, CLEARING HOUSES AND FUTURES ASSOCIATIONS REGULATION 8.2.01 8.2.01 APPLICATIONS FOR LICENCES IN SEALED ENVELOPES
An application to ASIC for a futures brokers licence or a futures advisers licence may be enclosed in a sealed envelope that:
(a) states that an application for a licence is enclosed; and
(b) describes the kind of licence applied for; and
(c) sets out the name, address and telephone number of the applicant. REGULATION 8.2.02 8.2.02 RECOGNISED FUTURES EXCHANGES - PRESCRIBED BODIES CORPORATE
For the purposes of paragraph (b) of the definition of recognised futures exchange in section 9 of the Corporations Law, the bodies corporate specified in Schedule 11 are prescribed. REGULATION 8.2.03 8.2.03 EXEMPTION: SECTION 1121 AND DIVISION 2 OF PART 8.2: COMEX CLEARING ASSOCIATION OF NEW YORK
Section 1121 and Division 2 of Part 8.2 of the Corporations Law do not have effect in relation to the clearing house for a futures exchange known as the Comex Clearing Association of New York. PART 8.3 - PARTICIPANTS IN THE FUTURES INDUSTRY REGULATION 8.3.01 8.3.01 EXEMPTION: DIVISIONS 1 AND 2 OF PART 8.3, SECTIONS 1206, 1207 AND 1208 AND PART 8.5: CLEARING HOUSES
Divisions 1 and 2 of Part 8.3, sections 1206, 1207 and 1208 and Part 8.5 of the Corporations Law do not have effect in relation to clearing houses. REGULATION 8.3.02 EXEMPTION: PART 8.3 - CERTAIN FUTURES CONTRACTS 8.3.02(1)
In this regulation:
investment manager
means a person:
(a) who is the holder of a dealers licence granted under Part 7.3 of the Corporations Law; and
(b) who is not a person involved in a dealing to which Part 8.3 of the Corporations Law does not apply because of paragraph (2)(a), (b), (c), (d) or (e).
8.3.02(2)
Part 8.3 of the Corporations Law does not have effect in relation to:
(b) a dealing in a futures contract entered into by a body corporate on behalf of a related body corporate; or
(c) a dealing in a futures contract entered into:
(i) by a member of a futures exchange who, under the business rules of that exchange, is a local member; and
(ii) under order execution business performed in accordance with those rules on a give-up basis on behalf of a member of that exchange who is, under those rules, a floor member; or
(d) a dealing in a futures contract:
(i) entered into by the responsible entity of a managed investment scheme who holds a dealers licence; and
(ii) entered into in accordance with the constitution of the scheme; and
(iii) entered into on behalf of the holders of interests in the scheme; and
(iv) executed by the holder of a futures brokers licence; and
(v) the value of which, when added to the total value of any other futures contracts in which the responsible entity is dealing for those holders, does not exceed 15% of the total value of the scheme property; or
(e) a dealing in a futures contract:
(i) entered into by the trustee, or by a manager appointed by the trustee, of an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 or a superannuation fund within the meaning of that Act; and
(ii) entered into under the convenants contained in the deed relating to that fund only on behalf of depositors in that fund; and
(iii) executed on behalf of the trustee or manager by the holder of a futures brokers licence; and
(iv) the value of which, when added to the total value of any other futures contracts entered into by the trustee or manager at that time on behalf of those depositors, does not exceed 15% of the total value of assets held by the trustee under that deed; or
(f) a dealing in a futures contract:
(i) entered into by an investment manager in the course of managing funds:
(A) deposited by a person (in this paragraph called the client ) to invest on terms that permit the investment manager to deal in futures contracts without prior reference to or approval of the client; and
(B) which total at least $500,000; and
(ii) executed on behalf of the investment manager by the holder of a futures brokers licence; and
(iii) the value of which, when added to the total value of any other futures contracts entered into by the investment manager at that time on behalf of the client, does not exceed 15% of the total amount of funds so deposited with the manager.
8.3.02(3)
For the purposes of subparagraph (2)(d)(v), (e)(iv) or (f)(iii):
(a) if a futures contract cancels another futures contract, the value of both contracts must be disregarded for the purpose of calculating the total value of the futures contracts referred to in subparagraph (2)(d)(v), (e)(iv) or (f)(iii); and
(b) if, but for this subregulation:
(i) the value of a futures contract (in this paragraph called the proposed contract ) if entered into would exceed the limit imposed by subparagraph (2)(d)(v), (e)(iv) or (f)(iii); and
(ii) the proposed contract would comply with the requirements of subparagraph (2)(d)(v), (e)(iv) or (f)(iii), as the case requires; and
(iii) the proposed contract if entered into would cancel another contract;
the limit imposed by subparagraph (2)(d)(v), (e)(iv) or (f)(iii) does not apply to the proposed contract.
8.3.02(4)
For the purpose of subregulation (3), a futures contract to sell cancels an earlier futures contract to buy, and a futures contract to buy cancels an earlier futures contract to sell, if both contracts:
(a) relate to:
(i) the same type and amount of subject matter; and
(ii) the same month; and
(b) are entered into:
(i) in the case of a futures contract referred to in paragraph (2)(d) - on behalf of the holders of prescribed interests under the deed; or
(ii) in the case of a futures contract referred to in paragraph (2)(e) - on behalf of depositors in relation to that fund; or
(iii) in the case of a futures contract referred to in paragraph (2)(f) - on behalf of the same client.
REGULATION 8.3.03 CONDITIONS OF LICENCE: GENERAL 8.3.03(1)
For the purposes of section 1147 of the Corporations Law, a licence is subject to the conditions that the holder of the licence must ensure that each representative of the holder:
(a) is adequately supervised in the performance of the duties that he or she is required by the holder to perform; and
(b) is sufficiently trained in relation to those duties before acting as a representative; and
(c) keeps up to date in relation to those duties by means of continuing training programs.
8.3.03(2)
ASIC may, by notice in writing, require a holder of a licence to satisfy it that the conditions referred to in subregulation (1) have been met by the holder.
REGULATION 8.3.04 8.3.04 NOTIFYING CHANGE IN PARTICULARS
For the purposes of paragraph 1156(c) of the Corporations Law, if there is a change of a director or the secretary of a licensee, the particulars may be in accordance with Forms 304 and 802A. REGULATION 8.3.05 8.3.05 REGISTER OF HOLDERS OF PROPER AUTHORITIES: PRESCRIBED INFORMATION
For the purposes of paragraph 1176(3)(e) of the Corporations Law, the date of birth of each person who holds a proper authority from the licensee is prescribed information. REGULATION 8.3.06 LICENSEE TO NOTIFY COMMISSION OF LOCATION AND CONTENTS OF REGISTER 8.3.06(1)
For the purposes of subsections 1177(2) and (3) of the Corporations Law, a notice may be in accordance with Form 811.
8.3.06(2)
For the purposes of paragraph 1177(4)(b) and subsections 1177(5) and (6) of the Corporations Law, a notice may be in accordance with Form 812.
PART 8.4 - CONDUCT OF FUTURES BUSINESS REGULATION 8.4.01 8.4.01 EXEMPTION OF CERTAIN TRANSACTIONS FROM SUBSECTION 1206(1) OF THE CORPORATIONS LAW
Subsection 1206(1) of the Corporations Law does not apply to a transaction that is:
(a) the acquisition or disposal of a futures contract; and
(b) entered into by a futures broker on behalf of a member of a clearing house of a futures exchange;
if the broker gives to that member the information that the broker is required, under the business rules of that exchange, to give to that member about that transaction.
REGULATION 8.4.01A WHICH FUTURES BROKER TO COMPLY WITH SUBSECTION 1206(1) OF THE CORPORATIONS LAW IN RELATION TO CERTAIN TRANSACTIONS? 8.4.01A(1)This regulation applies in relation to a transaction described in subsection 1206(1) of the Corporations Law if, on behalf of the person acquiring or disposing of the futures contract, more than one futures broker enters into the transaction.
8.4.01A(2)
If the person has instructed a broker to allocate a dealing in the transaction to another broker, subsection 1206(1) of the Corporations Law does not apply, except to the broker who last deals in the transaction.
8.4.01A(3)
In circumstances other than those described in subregulation (2), subsection 1206(1) of the Corporations Law does not apply, except to the broker whom the client has instructed to enter the transaction.
REGULATION 8.4.01B EXEMPTION FROM CERTAIN REQUIREMENTS IN RELATION TO CONTRACT NOTES 8.4.01B(1)
In this regulation:
order
means an instruction, or a series of instructions, to acquire or dispose of a futures contract.
8.4.01B(2)
Section 1206 of the Corporations Law has effect in relation to a futures broker to the extent that the requirements of the section are subject to this regulation.
Sending a contract note electronically
8.4.01B(3)
The requirement of subsection 1206(1) of the Corporations Law that, in respect of a transaction, being the acquisition or disposal of a futures contract, a futures broker give, as soon as practicable, a contract note that complies with subsection 1206(3), (4) or (5) of the Law to the person on whose behalf the broker entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the client has given to the broker prior authorisation to send any contract note electronically to the client in relation to that transaction or all transactions (or all transactions included in a class in which that transaction is included) entered into on behalf of the client by the broker; and
(b) the broker sends the contract note electronically to the client in accordance with the authorisation.
Giving a single contract note for multiple transactions
8.4.01B(4)
The requirement of subsection 1206(1) of the Corporations Law that, in respect of a transaction, being the acquisition or disposal of a futures contract, a futures broker give, as soon as practicable, a contract note that complies with subsection 1206(3) of the Law to the person on whose behalf the broker entered into the transaction (the client ) is satisfied if, in respect of the transaction, the following conditions are satisfied:
(a) the broker is a member of a futures exchange;
(b) the transaction takes place in accordance with the business rules of the futures exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with a broker;
(d) the client has given to the broker, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with a broker by the client, prior authorisation to give to the client a single contract note in respect of a series of transactions carried out under the order instead of an individual contract note in respect of each transaction in the series;
(e) the broker gives to the client a single contract note in respect of a series of transactions in which the transaction is included that:
(i) is in accordance with the authorisation; and
(ii) subject to subregulation (5), complies with subsection 1206(3) of the Law;
(f) the contract note is given:
(i) before the end of the business day on which that series of transactions was carried out; or
(ii) otherwise as permitted by the business rules of the futures exchange.
Price averaging
8.4.01B(5)
The requirement of subparagraph 1206(3)(d)(i) and sub-subparagraph 1206(3)(d)(ii)(B) of the Corporations Law that a contract note in respect of a transaction, being the acquisition or disposal of a futures contract, given to a person (the client ) by a futures broker include a statement of the contract price is satisfied if the following conditions are satisfied:
(a) the broker is a member of a futures exchange;
(b) the transaction takes place in accordance with the business rules of the futures exchange;
(c) the transaction forms part of a series of transactions made to complete an order placed with a broker;
(d) the client has, in accordance with the business rules of the futures exchange, given to the broker, in relation to that order or all orders (or all orders included in a class in which that order is included) placed with a broker by the client, prior authorisation to give to the client a single contract note in respect of the series of transactions that specifies the average contract price of the futures contracts acquired or disposed of in the series of transactions, instead of an individual contract note in respect of each transaction in the series that specifies the contract price of the futures contract acquired or disposed of in the transaction to which each contract note relates;
(e) the broker gives the contract note to the client in accordance with the authorisation;
(f) unless otherwise provided by the business rules of the futures exchange, the broker, if requested to do so by the client, gives to the client a document that includes a statement of the contract price of each futures contract acquired or disposed of in each transaction in the series.
Authorisations
8.4.01B(6)
For this regulation, an authorisation given by a person to a broker:
(a) must be given orally, or in writing, by the person; and
(b) is effective until it is revoked, either orally or in writing, by the person.
8.4.01B(7)
If a person gives an oral authorisation to a broker, or revokes an authorisation orally, the broker must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the person.
REGULATION 8.4.02 8.4.02 WAIVER OF PARAGRAPH 1206(1)(B) OF THE CORPORATIONS LAW
For the purposes of paragraph 1206(1)(b) of the Corporations Law, the prescribed manner of agreeing to waive the operation of that paragraph is to sign an agreement in accordance with Form 803C. REGULATION 8.4.03 8.4.03 EXEMPTION OF CERTAIN TRANSACTIONS FROM SUBSECTION 1207(1) OF THE CORPORATIONS LAW
Subsection 1207(1) of the Corporations Law does not apply to a transaction that is:
(a) the acquisition of a futures contract before or during a particular month; and
(b) entered into by a futures broker on behalf of a member of a clearing house of a futures exchange;
if:
(c) the futures contract has not been disposed of at the end of that month; and
(d) after the end of that month the broker gives to that member the information that the broker is required, under the business rules of that futures exchange, to give to that member about that transaction. REGULATION 8.4.03A WHICH FUTURES BROKER TO COMPLY WITH SUBSECTION 1207(1) OF THE CORPORATIONS LAW IN RELATION TO CERTAIN TRANSACTIONS? 8.4.03A(1)
This regulation applies in relation to a transaction described in paragraph 1207(1)(b) of the Corporations Law if, on behalf of the client who acquired the futures contract, more than one futures broker entered into the transaction.
8.4.03A(2)
If the person has instructed a broker to allocate a dealing in the transaction to another broker, subsection 1207(1) of the Corporations Law does not apply, except to the broker who last deals in the transaction.
8.4.03A(3)
In circumstances other than those described in subregulation (2), subsection 1207(1) of the Corporations Law does not apply, except to the broker whom the client has instructed to enter the transaction.
REGULATION 8.4.03B SENDING A MONTHLY STATEMENT ELECTRONICALLY 8.4.03B(1)
Subsection 1207(1) of the Corporations Law has effect in relation to a futures broker to the extent that the requirement of that subsection that the broker send a monthly statement to a client of the broker is satisfied if:
(a) the client has given to the broker a prior authorisation to send any monthly statement to the client electronically; and
(b) subject to regulation 8.4.03A, the broker sends the monthly statement to the client electronically within the time specified in section 1207.
8.4.03B(2)
For this regulation, an authorisation given to a broker by a client of the broker:
(a) must be given orally, or in writing, by the client; and
(b) is effective until it is revoked, either orally or in writing, by the client.
8.4.03B(3)
If a client of a broker gives an oral authorisation to the broker, or revokes an authorisation orally, the broker must:
(a) make a written record of the authorisation or revocation; and
(b) send a copy of the written record to the client.
REGULATION 8.4.04 8.4.04 EXEMPTION OF CERTAIN TRANSACTIONS FROM PARAGRAPHS 1207(1)(G) AND (H) OF THE CORPORATIONS LAW
Paragraphs 1207(1)(g) and (h) of the Corporations Law do not apply to a transaction that is:
(a) the acquisition or disposal of a futures contract; and
(b) entered into by a futures broker on behalf of a member of a clearing house of a futures exchange;
if the broker:
(c) has held money or property on account of that member; and
(d) gives to that member the information that the broker is required, under the business rules of that exchange, to give to that member about that transaction. PART 8.6 - FIDELITY FUNDS REGULATION 8.6.01 8.6.01 FIDELITY FUND - PRESCRIBED RATE OF INTEREST
For the purposes of subsection 1240(4) of the Corporations Law, the prescribed rate of interest is 10%per annum. PART 8.7 - OFFENCES REGULATION 8.7.01 8.7.01 PRESCRIBED PARTICULARS IN RESPECT OF TRANSMISSION AND EXECUTION OF ORDERS
For the purposes of subsection 1266(7) of the Corporations Law:
(a) a futures broker must keep instructions by a client to deal in futures contracts separately from instructions to deal in futures contracts on the broker's own account; and
(b) the prescribed particulars of instructions by a client to deal in futures contracts are short particulars of the matters referred to in paragraphs 1266(7)(a), (b) and (c) of the Corporations Law; and
(c) the prescribed particulars of instructions to deal in futures contracts on the broker's own account are short particulars of the matters referred to in paragraphs 1266(7)(d) and (e) of the Corporations Law; and
(d) the prescribed period is 7 years. REGULATION 8.7.02 8.7.02 FUTURES BROKERS THAT ARE BANKS - CREDIT TO EMPLOYEES TO DEAL IN FUTURES CONTRACTS
Subsection 1267(4) of the Corporations Law does not have effect in relation to a bank that is a futures broker or a futures adviser only because the bank gives credit to an employee of the bank if:
(a) the credit is given for the purpose of enabling or assisting the employee to deal in futures contracts; or
(b) the bank knows or has reason to believe that the credit will be used by the employee for that purpose. REGULATION 8.7.03 8.7.03 PERIOD FOR WHICH COMMISSION IS REQUIRED TO RETAIN DOCUMENTS
For the purposes of subsection 1270(4) of the Corporations Law, the prescribed period is 7 years. CHAPTER 9 - MISCELLANEOUS PART 9.1 - REGISTERS AND REGISTRATION OF DOCUMENTS REGULATION 9.1.01 9.1.01 PRESCRIBED REGISTERS
For the purposes of subsections 1274A(2), (3) and (4) of the Corporations Law, the following registers are prescribed:
(a) the register of companies registered under section 118, 601BD or 1362B of the Law or the registration of which is continued by section 1413 of the Law;
(b) the register of Disqualified Company Directors and Other Officers kept under section 243 of the Law;
(c) the Australian Register of Company Charges kept under section 265 of the Law;
(d) the register of registered Australian bodies kept under Division 1 of Part 5B.2 of the Law;
(e) the register of foreign companies registered under Division 2 of Part 5B.2 of the Law;
(f) the register of names reserved under section 152 of the Law;
(g) the Register of Licence Holders kept under section 789 of the Law;
(h) the register of managed investment schemes registered under section 601EB of the Law;
(i) the Register of Futures Licensees kept under section 1155 of the Law;
(j) the Register of Auditors kept under section 1285 of the Law;
(k) the Register of Liquidators kept under section 1286 of the Law;
(l) the Register of Official Liquidators kept under section 1286 of the Law. REGULATION 9.1.02 9.1.02 PRESCRIBED INFORMATION
For the purposes of subsections 1274A(3) and (4) of the Corporations Law, the following information is prescribed:
(a) in relation to each company registered under section 118, 601BD or 1362B of the Law or the registration of which is continued by section 1413 of the Law:
(i) its full name, the date of its registration and its registration number;
(ii)whether it is a public company or a proprietary company;
(iii) whether it is a company limited by shares, a company limited by guarantee, a company limited by both shares and guarantee, an unlimited company or a no liability company;
(v) its registered office;
(vi) its officers;
(vii) any scheme of arrangement it has entered into with its creditors, its placement under official management or receivership or its liquidation;
(viii) its paid-up and unpaid capital;
(ix) its deregistration;
(x) any charges on its property that have been lodged with ASIC or entered in the Australian Register of Company Charges;
(b) in relation to the Register of Disqualified Company Directors and Other Officers - orders and notices registered under section 243 of the Law;
(c) in relation to the Australian Register of Company Charges - each charge registered under subsection 265(2) of the Law;
(d) in relation to each body registered in the register of registered Australian bodies:
(i) its full name, the date of its incorporation and its registration number;
(ii) the class of the body in its place of origin and whether the liability of members of the body is limited;
(iv) its registered office;
(v) its registered office or principal place of business in its place of origin;
(vi) its officers;
(vii) any scheme of arrangement it has entered into with its creditors, its placement under official management or receivership or its liquidation;
(viii) its paid-up and unpaid capital;
(ix) its deregistration;
(x) any charges on its property that have been lodged with ASIC or entered in the Australian Register of Company Charges;
(e) in relation to each company entered in the register of foreign companies:
(i) its full name, the date and place of its incorporation or registration in its place of origin and its registration number;
(ii) the class of the foreign company in its place of origin and whether the liability of its members is limited;
(iv) its registered office;
(v) its registered office or principal place of business in its place of origin;
(vi) its officers;
(vii) its agent;
(viii) any scheme of arrangement it has entered into with its creditors, its placement under official management or receivership or its liquidation;
(ix) its paid-up and unpaid capital;
(x) its deregistration;
(xi) any charges on its property that have been lodged with ASIC or entered in the Australian Register of Company Charges;
(f) in relation to the register of reserved or registered names - a name entered in that register, the number allocated to that name and the date on which the entry was made;
(g) in relation to the Register of Licence Holders - each licence holder registered under section 783 or 784 of the Law;
(h) in relation to each registered scheme:
(i) the ARSN of the scheme;
(ii) the name of the scheme;
(iii) the date of registration of the scheme;
(iv) the name and address of the registered office of the responsible entity of the scheme;
(v) the name and address of the auditor of the scheme's compliance plan;
(vi) the date of any amendment of the constitution or compliance plan of the scheme;
(vii) any deregistration or winding up of the scheme;
(viii) the name and address of the auditor of the scheme;
(i) in relation to the Register of Futures Licensees - the name of each registered futures licensee;
(j) in relation to the Register of Auditors - the name of each registered auditor;
(k) in relation to the Register of Liquidators - the name of each registered liquidator;
(l) in relation to the Register of Official Liquidators - the name of each registered official liquidator. PART 9.2 - REGISTRATION OF AUDITORS AND LIQUIDATORS REGULATION 9.2.01 9.2.01 PRESCRIBED BODIES
For the purposes of subparagraphs 1280(2)(a)(i) and 1282(2)(a)(i) of the Corporations Law, the following bodies are prescribed:
(a) American Institute of Certified Public Accountants;
(b) Chartered Association of Certified Accountants (United Kingdom);
(c) The Institute of Chartered Accountants in England and Wales;
(d) The Institute of Chartered Accountants in Ireland;
(e) The Institute of Chartered Accountants of Scotland;
(f) New Zealand Society of Accountants;
(g) Canadian Institute of Chartered Accountants. REGULATION 9.2.02 9.2.02 PRESCRIBED UNIVERSITIES
For the purposes of subparagraphs 1280(2)(a)(ii) and 1282(2)(a)(ii) of the Corporations Law, the following universities are prescribed:
(a) Australian National University;
(b) Charles Sturt University, Mitchell;
(c) Charles Sturt University, Riverina;
(d) Curtin University of Technology;
(e) Deakin University;
(f) Flinders University of South Australia;
(g) Griffith University;
(h) James Cook University of North Queensland;
(i) La Trobe University;
(j) Macquarie University;
(k) Monash University;
(l) Murdoch University;
(m) Northern Territory University;
(n) Queensland University of Technology;
(o) University of Adelaide;
(p) University of Canberra;
(q) University of Melbourne;
(r) University of Newcastle;
(s) University of New England, Armidale;
(t) University of New England, Northern Rivers;
(u) University of New South Wales;
(v) University of Queensland;
(w) University of Sydney;
(x) University of Tasmania;
(y) University of Technology, Sydney;
(z) University of Western Australia;
(za) University of Western Sydney, Macarthur;
(zb)University of Western Sydney, Nepean;
(zc) University of Wollongong. REGULATION 9.2.03 9.2.03 PRESCRIBED INSTITUTIONS
For the purposes of subparagraphs 1280(2)(a)(ii) and 1282(2)(a)(ii) of the Corporations Law, the following institutions are prescribed:
(a) Avondale College;
(b) Ballarat College of Advanced Education;
(c) Bendigo College of Advanced Education;
(d) Brisbane College of Advanced Education;
(e) Capricornia Institute of Advanced Education;
(f) Churchlands College;
(g) Darling Downs Institute of Advanced Education;
(h) Footscray Institute of Technology;
(i) Gippsland Institute of Advanced Education;
(j) North Brisbane College of Advanced Education;
(k) Phillip Institute of Technology;
(l) Royal Melbourne Institute of Technology Limited;
(m) South Australian College of Advanced Education;
(n) South Australian Institute of Technology;
(o) Swinburne Institute of Technology;
(p) Tasmanian State Institute of Technology;
(q) The Western Institute;
(r) Victoria College;
(s) Warrnambool Institute of Advanced Education;
(t) Western Australian College of Advanced Education. REGULATION 9.2.04 9.2.04 PRACTICAL EXPERIENCE IN AUDITING (CORPORATIONS LAW, S 1280(2))
For the purposes of paragraph 1280(2)(b) of the Corporations Law, the prescribed practical experience in auditing:
(a) is:
(i) work in auditing under the direction of a registered company auditor for a period of not less than 3 years, including appraising the operations of companies and forming opinions on the matters specified in sections 307, 308 and 309 of the Corporations Law; and
(ii) at least one continuous year during the 5 years immediately before the date of the application spent supervising audits of companies; or
(b) is practical experience that in the opinion of ASIC is equivalent to the practical experience specified in paragraph (a); or
(c) is work of the kind mentioned in paragraph (a) that was done under previous laws corresponding to sections 307, 308 and 309 of the Corporations Law. REGULATION 9.2.05 APPLICATION OF SECURITY UNDER SUBSECTION 1284(2) OF THE CORPORATIONS LAW 9.2.05(1)
For the purposes of subsection 1284(2) of the Corporations Law, a security lodged by a liquidator or a liquidator of a specified body corporate may be applied by ASIC in accordance with this regulation to compensate a person who has suffered pecuniary loss due to the failure of the liquidator, or liquidator of the specified body corporate, as the case may be, to carry out his or her duties adequately and properly.
9.2.05(2)
Subregulation (1) applies whether or not the liquidator has been convicted of an offence in relation to the failure.
9.2.05(3)
A security must not be applied to compensate a person unless the person lodges a claim for compensation in writing no later than:
(a) if ASIC has:
(i) advertised for claims for compensation to be paid out of the security by notice published in accordance with subregulation (4); and
(ii) specified a date not less than 3 months after publication of the notice;
that date; or
(b) if no notice is published and paragraph (c) does not apply - 6 months after the person became aware that he or she had suffered the pecuniary loss; or
(c) if ASIC is satisfied that the claim is a proper claim - a later date that ASIC allows.
9.2.05(4)
A notice mentioned in paragraph 3(a) must be published:
(a) in a newspaper circulating generally in Australia; and
(b) if ASIC so requires - in a newspaper circulating in a State or Territory where the liquidator performed his or her duties.
9.2.05(5)
ASIC must give the liquidator an opportunity of being heard before deciding whether a person is to be compensated under subregulation (1).
9.2.05(6)
For the purposes of this regulation, the amount of pecuniary loss that a person may claim is the amount worked out using the formula:
| loss + costs − other entitlements |
where:
loss
means the pecuniary loss suffered by the person.
costs
means the total of the amounts ASIC thinks are:
(a) the reasonable costs of; and
(b) disbursements of a reasonable amount that are incidental to;
making and proving the claim.
other entitlements
means the amount or value of all money and other benefits paid or payable to the person by someone other than ASIC in reduction of the pecuniary loss.
9.2.05(7)
A security that is applied by ASIC must be applied:
(a) where the total of the admitted claims does not exceed the amount of the security - in the payment in full of those amounts; or
(b) where that total exceeds the amount of the security - in the payment of a proportion of the amount at which each of those claims was admitted.
9.2.05(8)
The proportion mentioned in paragraph (7)(b) must be the same as the proportion the amount of the security bears to the total of the admitted claims.
REGULATION 9.2.06 DISCHARGE, RETURN OR RELEASE OF SECURITY 9.2.06(1)
For the purposes of subsection 1284(3) of the Corporations Law:
(a) if a liquidator ceases to be registered as a liquidator; or
(b) if a liquidator of a specified body corporate ceases to be registered as a liquidator of that specified body corporate; or
(c) if there is a reduction in the potential liability of a liquidator in relation to which a security was lodged by the liquidator; or
(d) in such other circumstances as ASIC permits in a particular case;
ASIC may, on the application of the liquidator or any person who has entered into the security as surety:
(e) discharge the security in whole or part; or
(f) return the security in whole or part; or
(g) release the surety in whole or in part.
9.2.06(2)
ASIC must not exercise a power under subregulation (1) until 3 months after the date on which a notice in accordance with Form 904 is published:
(a) in a newspaper circulating generally in Australia; and
(b) if ASIC requires - in a newspaper circulating generally in the State or Territory of the principal place at which the liquidator practised, or, in the case of a liquidator of a specified body corporate, the principal place at which the functions of the liquidator of the specified body were performed:
(i) asking for particulars in writing of a claim in respect of the security to which the application relates; and
(ii) stating a date on or before which any claim is to be made.
9.2.06(3)
A notice must be published by, and at the expense of, the person making the application.
9.2.06(4)
If a liability may be imposed on a surety in relation to a claim:
(a) in response to a notice under subregulation (2); or
(b) accepted by ASIC as a proper claim;
that surety:
(c) may; and
(d) on the request of the liquidator or liquidator of a specified body corporate, must;
apply to ASIC for directions:
(e) concerning the manner in which the security is to be dealt with; and
(f) whether the surety should be released wholly or in part.
9.2.06(5)
If a surety's liability under a security maintained with ASIC is substantially in excess of the surety's liability under all claims referred to in subregulation (4), ASIC may:
(a) direct that the instrument under which the surety's liability arises be varied; or
(b) return to the surety the proportion of the security that exceeds the surety's liability under all claims referred to in subregulation (4); or
(c) refer any matter in dispute to a court, or an arbitrator, for determination; or
(d) release the surety wholly or in part.
REGULATION 9.2.07 EFFECT OF DISCHARGE OF SECURITY 9.2.07(1)
If a security is discharged, wholly or in part, by ASIC:
(a) a claim does not lie against the surety in relation to the obligation to which the security relates to the extent that he or she has been released from that obligation; and
(b) the surety must return to the liquidator:
(i) the whole; or
(ii) in the case of a partial discharge - the proportion that ASIC directs;
of any money or other property deposited with or held by the surety to cover the potential liability of the surety under the security.
9.2.07(2)
If ASIC directs that a security be discharged in part:
(a) it may state that the surety is not released from the obligations relating to those claims that ASIC specifies; and
(b) the surety remains subject to any claims that are so specified.
PART 9.4 - PENALTY NOTICE OFFENCES AND PENALTIES REGULATION 9.4.01 9.4.01 PRESCRIBED OFFENCES (CORPORATIONS LAW S 1313)
For paragraph (b) of the definition of prescribed offence in subsection 1313(8) of the Corporations Law, an offence against a provision mentioned in Schedule 3 to the Corporations Law, to which a penalty of 5 penalty units applies, is prescribed. REGULATION 9.4.02 9.4.02 PRESCRIBED PENALTIES (CORPORATIONS LAW S 1313)
For an offence prescribed by regulation 9.4.01 for which a person may be, or has been, given a notice under subsection 1313(1) of the Corporations Law, the amount of the penalty is:
(a) if the person is an individual - 1.25 penalty units; and
(b) if the person is a body corporate - 6.25 penalty units. PART 9.4A - REGISTER AND INDEX REGULATION 9.4A.01 9.4A.01 DEFINITIONS FOR PART 9.4A
In this Part, unless the contrary intention appears:
index
means an instrument, prepared for the purposes of subsection 1306(4) of the Corporations Law, that is an index of members of a corporation.
issuing body
has the same meaning as it has in Division 3 of Part 7.13 of the Corporations Law.
register
means an instrument, prepared for the purposes of subsection 1306(4) of the Corporations Law, that is any of the following:
(a) register of members of a corporation;
(b) register of holders of debentures of a corporation;
(c) register of members of a registered scheme;
(d) register of holders of options of a corporation. REGULATION 9.4A.02 REGISTER AND INDEX MUST BE KEPT UP TO DATE: SUBSECTION 1306(4A) OF THE CORPORATIONS LAW 9.4A.02(1)
A corporation that is an issuing body must ensure that its registers and index (if any) are, at any time, not more than 20 business days out of date.
9.4A.02(2)
If a person notifies a corporation that is an issuing body that the person wishes to inspect a register or index of the corporation, the corporation must ensure that, at the beginning of the business day following the day on which it receives the notice, the register or index that the person wishes to inspect is not more than 5 business days out of date.
PART 9.5 - DELEGATION OF POWERS AND FUNCTIONS UNDER THE CORPORATIONS LAW REGULATION 9.5.01 9.5.01 PRESCRIBED FUNCTIONS (LAW, S 1345A(1))
For the purposes of subsection 1345A(1) of the Corporations Law, the functions and powers of the Minister under the following provisions of the Corporations Law are prescribed:
(a) subsection 147(2) or 601DC(2) (Names available with Minister's consent);
(c) Part 9.7 (Unclaimed property). PART 9.11 - CHANGES RESULTING FROM THE MANAGED INVESTMENTS ACT 1998 REGULATION 9.11.01 9.11.01 FORM OF NOTICES FOR LODGMENT
A notice to be lodged under subsection 1455(2) or 1456(1), paragraph 1456(2)(c) or 1457(1)(b), subsection 1460(5) or paragraph 1460(6)(c) of the Corporations Law must be in the approved form. CHAPTER 10 - NATIONAL SCHEME PROVISIONS PART 10.1 - TRANSFER OF REGISTRATION Division 1 - Transfer of incorporation of recognised companies to this jurisdiction (Corporations Law, ss 1362B(1) and (2)) REGULATION 10.1.01 RECOGNISED COMPANIES MAY APPLY FOR REGISTRATION 10.1.01(1)
A recognised company may lodge an application to be registered as a company under section 1362B of the Corporations Law of this jurisdiction.
10.1.01(2)
ASIC must grant the application if:
(a) regulation 10.1.02 does not prevent ASIC from registering the company; and
(b) the application is made in accordance with regulation 10.1.03.
REGULATION 10.1.02 10.1.02 EXTERNALLY-REGISTERED BODIES CORPORATE NOT TO BE REGISTERED
ASIC must not register a recognised company if:
(a) the company is an externally-administered body corporate; or
(b) an application has been made to a court in Australia or elsewhere to wind up the company or for the approval of a compromise or arrangement between the company and another person, and has not been dealt with. REGULATION 10.1.03 FORM AND CONTENT OF APPLICATIONS 10.1.03(1)
An application by a recognised company under regulation 10.1.01 must be in accordance with Form 213.
10.1.03(2)
The application must be accompanied by each of the following documents that is not already held by ASIC:
(a) a certificate issued to the company, not earlier than 1 month before lodgment of the application, under the provisions of the Corporations Law of the jurisdiction in which the company is currently registered that correspond to Division 3;
(b) evidence acceptable to ASIC that regulation 10.1.02 does not prevent ASIC from registering the company under this Division;
(c) such other documents and information (if any) as ASIC requires by written notice given to the company.
REGULATION 10.1.04 10.1.04 REGISTRATION
If ASIC grants an application under subregulation 10.1.01(2), ASIC must:
(a) register the company as a company of the same type as it was in the jurisdiction in which it was registered immediately before its registration in accordance with this Division; and
(b) allocate to the company the same registration number that it had immediately before its registration in accordance with this Division. REGULATION 10.1.05 10.1.05 EFFECT OF REGISTRATION
If a company is registered in accordance with this Division:
(a) the company is taken to be registered under the Corporations Law of this jurisdiction; and
(b) its constitution immediately before being so registered:
(i) continues to be its constitution immediately after being so registered; and
REGULATION 10.1.06 CERTIFICATES OF REGISTRATION 10.1.06(1)
(ii) binds the company, its directors and members, and the secretary (if any) of the company accordingly.
If a company is registered in accordance with this Division, ASIC must issue a certificate that states:
(a) the company's name; and
(b) the company's ACN; and
(c) the company's type; and
(d) the date of registration in accordance with this Division.
Note For the evidentiary value of a certificate of registration, see subsection 1274(7A) of the Corporations Law.
10.1.06(2)
ASIC must keep a copy of the certificate.
10.1.06(3)
The copy of the certificate is taken, for subsection 1274(2) of the Corporations Law, to be lodged.
REGULATION 10.1.07 10.1.07 REGISTERS AND MINUTE BOOKS
If, immediately before the day on which a company is registered in accordance with this Division, the company kept a register, or books, mentioned in a law corresponding to section 168 or 271, or section 251A, of the Corporations Law:
(a) the register is taken to be a register mentioned in section 168 or 271 of the Law, as the case requires; and
(b) the books are taken to be books mentioned in section 251A of the Law. Division 2 - Transfer of incorporation of companies to other jurisdictions (Corporations Law, s 1362B(3)) REGULATION 10.1.08 APPROVAL OF APPLICATIONS FOR CERTIFICATES AUTHORISING TRANSFER APPLICATIONS 10.1.08(1)
An application to ASIC for a certificate authorising a company to apply for registration as a company under a law of another jurisdiction corresponding to section 1362B of the Corporations Law of this jurisdiction must be approved by a special resolution of the company.
10.1.08(2)
The special resolution must be approved at a general meeting of the company notice of which has been given to every member of the company.
10.1.08(3)
A copy of the special resolution must be lodged within 14 days of the day on which it was passed.
REGULATION 10.1.09 SPECIAL RESOLUTIONS MAY BE SET ASIDE BY COURT ORDER 10.1.09(1)
Within 28 days after the passing of a special resolution approving an application under regulation 10.1.08, a member, or members, of the company having at least 10% of the votes capable of being cast on the special resolution may apply in writing to the Court to have the resolution set aside.
10.1.09(2)
A member may, with the written consent of other members mentioned in subregulation (1), apply on their behalf to the Court under that subregulation.
10.1.09(3)
The Court may order the special resolution to be set aside if the Court is satisfied that the registration of the company in accordance with the resolution would unfairly prejudice the applicant or applicants.
10.1.09(4)
The company must lodge a copy of the Court order within 14 days of the day on which it was made.
REGULATION 10.1.10 APPLICATIONS FOR CERTIFICATES AUTHORISING TRANSFER APPLICATIONS 10.1.10(1)
A company may, in accordance with a special resolution of the company, apply to ASIC for a certificate authorising the company to apply for registration as a company under a law of another jurisdiction corresponding to section 1362B of the Corporations Law of this jurisdiction.
10.1.10(2)
An application under subregulation (1) must be in accordance with Form 214.
10.1.10(3)
The application must be accompanied by:
(a) a declaration signed by the directors of the company or, if the company has more than 2 directors, a majority of the directors, to the effect that they have:
(i) inquired into the affairs of the company; and
(ii) formed an opinion at a meeting of directors that the company will be able to pay its debts as they fall due; and
(b) a report on the affairs of the company showing the assets and liabilities of the company up to the latest practicable date before the application was made.
REGULATION 10.1.11 ISSUE OF CERTIFICATES TO AUTHORISE TRANSFER APPLICATIONS 10.1.11(1)
On application in accordance with regulation 10.1.10, ASIC must issue a certificate mentioned in that regulation if:
(a) the company has passed a special resolution approving the application for the certificate; and
(b) the company has given to its creditors, in a manner approved by ASIC, notice of its intention to apply for such a certificate; and
(c) ASIC is not aware of any failure of the company to comply with a requirement of the Corporations Law that applies to the company; and
(d) ASIC is not aware of any other reason why the certificate should not be granted; and
(e) both the Minister and the Minister for this jurisdiction have consented under paragraph 1362B of the Corporations Law in writing to the transfer of registration to which the certificate relates.
10.1.11(2)
ASIC must not issue the certificate within 28 days of the day on which the application was made.
10.1.11(3)
A certificate may be issued under subregulation (1) subject to such conditions as are stated in the certificate.
CHAPTER 11 - MODIFICATION OF THE CO-OPERATIVE SCHEME ACTS PART 11.1 - COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980 REGULATION 11.1.01 11.1.01 MODIFICATION OF THE COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980
The Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 has effect with the modifications set out in regulation 11.1.02. REGULATION 11.1.02 11.1.02 MODIFICATION OF SECTION 34 (TIME FOR INSTITUTING CRIMINAL PROCEEDINGS)
Section 34 is modified as follows:
(a) after "Ministerial Council", insert "or the Minister";
(b) add at the end:
CHAPTER 12 - FINANCIAL SECTOR REFORM PART 12.1 - PRELIMINARY REGULATION 12.1.01 12.1.01 DEFINITIONS FOR CHAPTER 12
"(2)
For the purposes of this section, 'the Minister' has the same meaning as 'the Minister' under section 80A(2) of the Corporations Law.".
In this Chapter:
AFIC
means the Australian Financial Institutions Commission.
APRA transitional prudential standard
has the meaning given by regulation 11 of the Financial Sector Reform (Amendments and Transitional Provisions) Regulations 1999.
Financial Institutions Code of this jurisdiction
has the meaning given by clause 1 of Schedule 4 to the Corporations Law.
Financial Sector Reform Act
means the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999.
Friendly Societies Code of this jurisdiction
has the meaning given by clause 1 of Schedule 4 to the Corporations Law.
member share
has the meaning given by regulation 12.8.03.
previous governing Code
has the meaning given by clause 1 of Schedule 4 to the Corporations Law.
replaced legislation
has the meaning given by subitem 22(7) of Schedule 8 to the Financial Sector Reform Act.
SSA
(State Supervisory Authority) has the meaning given by clause 1 of Schedule 4 to the Corporations Law.
transfer date
means the date that is the transfer date for the purposes of the Financial Sector Reform Act.
transferring financial institution of this jurisdiction
has the meaning given by clause 1 of Schedule 4 to the Corporations Law.
transition period
means the period of 18 months starting on the transfer date.
Note See the definition of Corporations Regulations in s 40A of the Acts Interpretation Act 1901.
REGULATION 12.1.02 12.1.02 APPLICATION OF THIS CHAPTER TO PREVIOUS GOVERNING CODES ETCA reference in this Chapter to:
(a) a previous governing Code; or
(b) a provision of a previous governing Code; or
(c) an instrument under a previous governing Code; or
(d) a provision of an instrument under a previous governing Code;
that is applied by or under this Chapter includes a reference to the Code, provision or instrument as varied or modified by or under this Chapter.
REGULATION 12.1.03 INTERPRETATION OF APPLIED PROVISIONS 12.1.03(1)Subregulation (2) applies to a provision of the following instruments:
(a) a previous governing Code that is applied by or under a provision of this Chapter;
(b) an instrument made under a Code mentioned in paragraph (a) that is applied by or under this Chapter;
(c) an ASIC transitional standard within the meaning of Part 12.7 or an instrument made under a provision of the standard.
12.1.03(2)
This subregulation applies if there is a reference in the provision to any of the following:
(a) a word or expression that is defined in the Corporations Law or these Regulations;
(b) a power exercised by AFIC or an SSA;
(c) a class of body;
(d) the rules of a body;
(e) the accounts, or group accounts, of a body;
(f) a previous governing Code or a provision of the Code;
(g) an ASIC transitional standard within the meaning of Part 12.7 or a provision of the standard;
(h) an APRA transitional prudential standard or a provision of the standard;
(i) an instrument made under a Code, an ASIC transitional standard, an APRA transitional prudential standard or a provision of the instrument.
12.1.03(3)
A word or expression that is defined in the Corporations Law or these regulations applies to each use of the word or expression unless the contrary intention appears.
12.1.03(4)
A reference to a power exercised by AFIC or an SSA is to be read as if it were a reference to an equivalent power exercised by ASIC under the Corporations Law, these regulations, another Commonwealth law or an ASIC transitional standard.
12.1.03(5)
A reference to a class of body is to be read as if it were the comparable class of company after the transition date.
12.1.03(6)
A reference to the rules of a body is to be read as if it were a reference to the constitution of the body.
12.1.03(7)
A reference to accounts, or group accounts, of a body is to be read as if it were a reference to a financial report, or consolidated financial statements, of the body.
12.1.03(8)
A reference to any matter mentioned in subregulation (2) is to be read in a way that:
(a) is consistent with, and promotes, the transition from the application of a previous governing Code to a transferring financial institution of this jurisdiction to the application to the institution of the Corporations Law and these regulations; and
(b) is consistent with the duties, functions and powers of ASIC or an SSA; and
(c) does not alter the interpretation or operation of the instrument in which the reference appears.
PART 12.2 - TRANSITIONAL MATTERS - GENERAL Division 1 - Modifications of Corporations Law REGULATION 12.2.01 12.2.01 PURPOSE OF DIVISION 1
For clause 28 of Schedule 4 to the Corporations Law, this Division modifies the Law in relation to a company registered under clause 3 of Schedule 4 to the Law. REGULATION 12.2.02 CERTAIN CONSTITUTIONAL CHANGES 12.2.02(1)
This regulation applies to a following modification of a provision of a company's constitution:
(a) a modification of a statement of the company's limited liability;
(b) a modification of a statement of the type of company to which the company's registration relates;
(c) a modification of an abbreviation of the company's name;
(d) the addition of 'Limited' or 'Proprietary Limited' to the company's name;
(e) the replacement of a word or expression that relates to a previous governing Code with a word or expression that is consistent with, and promotes, the transition from the application of that Code to the company to the application of the Corporations Law to the company;
(f) if the company is limited by guarantee, or by shares and guarantee, a modification to insert a provision to the effect that, on a winding up of the company, each member of the company is a guarantor of its debts and liabilities for an amount that does not exceed $20;
(g) if the company is limited by shares, a modification to create a class of shares in the company into which shares in the company that are mentioned in paragraph 12.2.04(1)(a), (b) or (c) may be converted.
12.2.02(2)
Subsection 136(2) and Part 2F.2 of, and Part 5 of Schedule 4 to, the Corporations Law do not apply in relation to a modification mentioned in subregulation (1) if:
(a) the provision to be modified is not a benefit fund rule within the meaning of subsection 16B(1) of the Life Insurance Act 1995; and
(b) the modification would not materially alter the rights or obligations of members of the company.
12.2.02(3)
The modification may be made by resolution of the directors of the company without a general meeting of members of the company being held.
REGULATION 12.2.03 REGISTERS OF MEMBERS 12.2.03(1)
Paragraph 169(1)(b) of the Corporations Law is modified in relation to the company by substituting:
(b) the date of admission to membership.
12.2.03(2)
Subsection 169(5) (which deals with non-beneficial ownership of companies other than listed companies), and subsection 169(6), of the Corporations Law do not apply to the company.
REGULATION 12.2.04 CONVERSION OF CERTAIN KINDS OF SHARES 12.2.04(1)
The directors of a company limited by shares may resolve, without a general meeting of members of the company being held, that shares in the company of the following kinds are converted to a single class of shares in the company:
(a) membership shares within the meaning of subclause 12(3) of Schedule 4 to the Corporations Law;
(b) redeemable preference shares to which clause 15 of Schedule 4 to the Law applies;
(c) a share issued under regulation 12.8.11 or 12.8.12.
12.2.04(2)
A resolution mentioned in subregulation (1) does not have effect unless the following requirements are met:
(a) the rights and obligations of holders of converted shares in relation to the following matters are stated in the constitution of the company:
(i) repayment of capital;
(ii) participation in distribution of profits and surplus assets;
(iii) voting;
(iv) priority of payment of capital in respect of any other class of shares in the company;
(b) the conversion does not materially alter the rights and obligations of the holders of the converted shares;
(c) the value of the shares of the class into which the shares are converted (including both paid and unpaid amounts) is not more than $20;
(d) either:
(i) the amount paid up on the share immediately before conversion is equal to the amount paid up on the share on conversion; or
(ii) if a number of shares is to be converted into a different number of shares, the value (including both paid and unpaid amounts) of the shares to be converted is divided equally between converted shares.
12.2.04(3)
Subsection 140(2), Part 2F.2 and subsection 254G(3) of, and Part 5 of Schedule 4 to, the Corporations Law do not apply in relation to conversion of shares in accordance with this regulation.
12.2.04(4)
Within 1 month of a resolution of the directors of the company mentioned in subregulation (1), the company must lodge with ASIC:
(a) a copy of the resolution; and
(b) a declaration by the directors that the requirements of subregulation (2) have been met in relation to the resolution.
12.2.04(5)
The resolution takes effect on lodgment.
12.2.04(6)
On application, within 12 months of the resolution taking effect, by ASIC or the holders of at least 10% of the converted shares, a court may order that:
(a) the requirements of subregulation (2) have not been met in relation to a resolution lodged under subregulation (4); and
(b) the purported conversion is set aside.
12.2.04(7)
The order has effect from the time of the purported conversion.
12.2.04(8)
Within 14 days of an order of the court, the company must lodge a copy of the order with ASIC.
Note Regulations 12.2.12 and 12.8.06A apply to converted shares.
REGULATION 12.2.05 12.2.05 USE OF COMPANY NAME AND ACN ON DOCUMENTS
Section 153 of the Corporations Law does not apply in relation to the company. REGULATION 12.2.06 12.2.06 AGE OF DIRECTORS
Section 201C of the Corporations Law does not apply in relation to the company. REGULATION 12.2.07 12.2.07 DISCLOSURE OF DIRECTORS' REMUNERATION
Section 202B of the Corporations Law does not apply in relation to the company. REGULATION 12.2.07A 12.2.07A WHEN AGMs TO BE HELD
Subsection250N(2) of the Corporations Law is modified in relation to the company by omitting 'and within 5 months after the end of its financial year'. Division 2 - Other matters REGULATION 12.2.08 12.2.08 LODGMENT OF CERTAIN DOCUMENTS WITH ASIC
For clause 39 of Schedule 4 to the Corporations Law, if the Friendly Societies Code of this jurisdiction applied to a transferring financial institution of this jurisdiction immediately before the transfer date, the transferring financial institution may lodge with ASIC a document that had been lodged with AFIC at any time before the transfer date under that Code. REGULATION 12.2.09 NOTICES LODGED BY SSAs 12.2.09(1)
This regulation applies to a notice that:
(a) is mentioned in paragraph 4(1)(a) of Schedule 4 to the Corporations Law; and
(b) is lodged by the SSA for a transferring financial institution of this jurisdiction that was under external administration immediately before the transfer date.
12.2.09(2)
For paragraph 4(2)(b) of Schedule 4 to the Corporations Law, the following details are prescribed:
(a) the name and business address, and the business telephone number and fax number, of the person who is the external administrator when the notice is lodged;
(b) the date on which the transferring financial institution entered into external administration;
(c) the provisions under which the transferring financial institution entered into external administration;
(d) if, when the notice is lodged, the transferring financial institution is being externally administered under provisions other than the provisions under which the institution entered into external administration - the other provisions;
(e) a copy of any order made by a court in relation to the external administration of the transferring financial institution that the SSA considers is currently relevant to the external administration;
(f) a copy of any account, report or statement that:
(i) has been lodged with the SSA by an external administrator of the transferring financial institution in relation to conduct of the administration, the business of the institution or the conduct of the officers of the institution; and
(ii) the SSA considers is currently relevant to the external administration of the institution.
REGULATION 12.2.10 CERTAIN APPOINTMENTS OF AUDITORS CONTINUE 12.2.10(1)
For clause 39 of Schedule 4 to the Corporations Law, this regulation applies if a person or body held an appointment, immediately before the transfer date, under a previous governing Code or the Friendly Societies Act 1894 of Western Australia as the auditor of a transferring financial institution.
12.2.10(2)
Section 324 of the Corporations Law applies to the person or body as if the person or body had been appointed under section 327 of the Law as the auditor of the transferring financial institution.
REGULATION 12.2.11 MEMBER DEPOSITS 12.2.11(1)
This regulation applies to a transferring financial institution of this jurisdiction that is:
(a) mentioned in paragraph (a) of the definition of transferring financial institution of this jurisdiction in clause 1 of Schedule 4 to the Corporations Law; and
(b) taken to be registered under clause 3 of Schedule 4 to that Law as a company limited by shares or a company limited by shares and guarantee.
12.2.11(2)
For clause 39 of Schedule 4 to the Corporations Law, this regulation modifies paragraphs 12(1)(b) and (c), and 14(1)(d), of Schedule 4 to the Law in relation to the company.
12.2.11(3)
If a withdrawable share in the companyis deemed under a law of a State to have become, immediately before the transfer date, a deposit with the company, a provision of the Corporations Law mentioned in subregulation (2) does not take effect until immediately after the deemed deposit.
REGULATION 12.2.12 CONVERTED SHARES 12.2.12(1)
For clause 39 of Schedule 4 to the Corporations Law, this regulation modifies the application of section 254K of the Law in relation to a share in a company that is converted in accordance with regulation 12.2.04 to a share of another kind.
12.2.12(2)
If the share is partly-paid, the company may redeem the share on the same terms on which the share was redeemable before its conversion.
PART 12.3 - REGISTRATION OF TRANSFERRING FINANCIAL INSTITUTIONS REGULATION 12.3.01 12.3.01 PURPOSE OF PART 12.3
For clause 28 of Schedule 4 to the Corporations Law, this Part modifies the operation of the Law in relation to a company registered under clause 3 of Schedule 4 to the Law. REGULATION 12.3.02 12.3.02 REGISTRATION AS COMPANIES
Paragraph 3(4)(b) of Schedule 4 to the Corporations Law applies in relation to the company as if the election mentioned in that paragraph must be lodged not later than 6 weeks after the transfer date. REGULATION 12.3.03 EFFECT OF ELECTIONS LODGED AFTER TRANSFER DATE 12.3.03(1)
This regulation applies to an election lodged in relation to the company in accordance with paragraph 3(4)(b) of Schedule 4 to the Corporations Law (as modified by regulation 12.3.02).
12.3.03(2)
Despite subclause 3(5) of Schedule 4 to the Corporations Law, the company is taken to have become registered on the transfer date as a company of the type specified in the election.
REGULATION 12.3.04 CERTIFICATES OF REGISTRATION ETC 12.3.04(1)
This regulation applies if:
(a) the company is taken to have become registered under regulation 12.3.03; and
(b) ASIC has issued a certificate of registration mentioned in paragraph 7(1)(c) of Schedule 4 to the Corporations Law in relation to the company as a result of the operation of subclause 3(5) of that Schedule.
12.3.04(2)
The certificate of registration is taken to refer to registration of the company as a company of the type specified in the election mentioned in regulation 12.3.03.
12.3.04(3)
ASIC may issue a replacement certificate of registration to the company.
12.3.04(4)
If the company is taken to be a company limited by shares, or by shares and guarantee, clause 6 of Schedule 4 to the Corporations Law does not apply subsections 169(3), (4), (5) and (6) of the Law to the company until the end of 14 days after the day of issue of the replacement certificate of registration.
PART 12.4 - NOTICE OF MEETINGS OF CERTAIN BODIES CORPORATE REGULATION 12.4.01 APPLICATION OF PART 12.4.01(1)
This Part applies to a body corporate that is:
(a) a transferring financial institution of this jurisdiction; or
(b) a company that is permitted to use the expression building society , credit society or credit union under section 66 of the Banking Act 1959.
12.4.01(2)
This Part applies in relation to the following members of the body corporate who are entitled to vote at a meeting of members of the body:
(a) members who hold only member shares;
(b) if the body is a company limited by guarantee - the members of the company;
(c) if the body is a company limited by shares and guarantee - the members of the company who do not hold shares in the company.
12.4.01(3)
This Part does not apply in relation to a meeting:
(a) that is held for the purposes of Chapter 5 or 6 of the Corporations Law; or
(b) to which Part 5 of Schedule 4 to that Law applies.
REGULATION 12.4.02 12.4.02 MODIFICATION OF CERTAIN PROVISIONS OF CORPORATIONS LAW
For clause 38 of Schedule 4 to the Corporations Law, this Part modifies the application of subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Law in relation to the members of the body corporate. REGULATION 12.4.03 MEMBERS ETC MAY ELECT TO BE NOTIFIED OF MEETINGS 12.4.03(1)
The body corporate may give notice to a member, or to an applicant for membership, of the body corporate that he or she may elect to receive notice under subsection 249J(1) of the Corporations Law of meetings of members of the body corporate.
12.4.03(2)
The notice must include a statement to the effect that:
(a) attendance at the AGM, and other meetings of members, of the body corporate enables the members:
(i) to participate in the governance of the body corporate; and
(ii) to ask questions about, and comment on, the management of the body corporate, its financial standing and performance; and
(iii) to ask the auditor of the body corporate questions about the conduct of the audit of the body corporate and the preparation and content of the auditor's report; and
(iv) to vote on any proposal to amend the constitution of the body corporate or on any other matter in relation to the management of the body corporate; and
(b) notice of meetings informs members about matters in relation to which they may wish to attend a meeting; and
(c) a member of the body corporate who is entitled to attend, and cast a vote at, a meeting may appoint a proxy to attend and vote for the member at the meeting; and
(d) if the member does not elect to receive notice, the body corporate is not required to give notice of its meetings to the member; and
(e) despite a member of the body corporate electing not to receive notice of its meetings, or not making an election, the member may at any time request the body corporate to give the member personal notice of the meetings.
12.4.03(3)
The member or applicant is taken not to have made an election if the body corporate has not received the election within 21 days of the notice being given in accordance with subregulation (1).
12.4.03(4)
If the member elects not to receive notice of meetings, or does not make an election, subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Corporations Law do not apply to the body corporate in relation to the member.
12.4.03(5)
If the applicant elects not to receive notice of meetings, or does not make an election, subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Corporations Law do not apply to the body corporate in relation to the applicant if he or she becomes a member of the body corporate to whom this Part applies.
REGULATION 12.4.04 NOTICE OF MEETINGS TO BE PUBLISHED IN PRESS 12.4.04(1)
If the body corporate gives notice under subregulation 12.4.03(1), notice of a meeting of the body corporate must be given in accordance with this regulation.
12.4.04(2)
The notice must be published, at least 21 days before the day on which the meeting is to be held, in at least 1 edition of a daily newspaper circulating generally in each jurisdiction in which the body corporate conducts its business.
12.4.04(3)
The notice must:
(a) set out the date and time when, and the place where, the meeting is to be held; and
(b) state the general nature of the business proposed for the meeting; and
(c) include a statement to the effect that a member of the body corporate who is entitled to vote at the meeting may request the body corporate to give the member personal notice of the meeting; and
(d) set out information about how a member may request the body corporate to give the member personal notice of the meeting.
REGULATION 12.4.05 12.4.05 COPIES OF NOTICES TO BE DISPLAYED
If the body corporate gives notice under subregulation 12.4.03(1), notice of a meeting of the body corporate must be displayed conspicuously, for at least 21 days before the day on which the meeting is to be held, at:
(a) the registered office of the body corporate; and
(b) each other place where the body corporate conducts business that is open to the public. REGULATION 12.4.06 MEMBERS MAY REQUEST NOTICE OF MEETINGS AT ANY TIME 12.4.06(1)
The member may request the body corporate to give notice of a meeting to the member under subsection 249J(1) of the Corporations Law.
12.4.06(2)
The request may be a standing request or only apply to a particular meeting.
12.4.06(3)
If the member makes a request under subregulation (1), subsection 249H(1), section 249J, subsection 249P(6) and paragraph 249Z(b) of the Corporations Law apply to the body corporate in relation to:
(a) the member; and
(b) a meeting to which the request relates.
12.4.06(4)
However, if the member requests the body corporate to give notice of a meeting within 21 days of the day on which the meeting is to be held, the body corporate must give notice of the meeting to the member as soon as practicable.
REGULATION 12.4.07 12.4.07 RECORDS TO BE KEPT ABOUT NOTICES
A body corporate must, not later than 28 days after a notice is given under subregulation 12.4.03(1) to a member of the body corporate, record in writing:
(a) the date on which the notice was given to the member; and
(b) whether the member elected to receive notice of meetings of members of the body corporate.
Example of recordingPART 12.5 - DETERMINATIONS AND DECLARATIONS IN RELATION TO CERTAIN INSTRUMENTS REGULATION 12.5.01 12.5.01 DEFINITION FOR PART 12.5
An entry made in a register kept under Part 2C of the Corporations Law.
In this Part:
relevant transitional instrument or requirement
means:
(a) an instrument (as in force immediately before the transfer date) that was made by AFIC, or an SSA, under a provision of the replaced legislation in relation to a matter for which ASIC is responsible for which no transitional, saving or application provision applies on that date in:
(i) the Corporations Law, the Financial Sector Reform Act or another Commonwealth Act; or
(ii) these regulations or any other regulations, or another instrument, made under a Commonwealth Act; or
(b) a requirement under the provisions mentioned in paragraph 272(1)(a) of the Financial Institutions Code of this jurisdiction; or
(c) a requirement under the provisions mentioned in paragraph 334(1)(a) of the Friendly Societies Code of this jurisdiction; or
(d) the ASIC transitional standards within the meaning of Part 12.7; or
(e) an instrument made under an instrument or provision mentioned in paragraph (a), (b), (c) or (d). REGULATION 12.5.02 APPLICATION, VARIATION, REVOCATION AND MODIFICATION 12.5.02(1)
For clause 28 of Schedule 4 to the Corporations Law, ASIC may determine that:
(a) an instrument mentioned in paragraph (a) of the definition of relevant transitional instrument or requirement in regulation 12.5.01 has applied between the transfer date and the date of the determination; and
(b) an instrument mentioned in paragraph (a) of this subregulation continues to apply from the date of the determination for a period that does not extend beyond the transition period.
12.5.02(2)
For clause 39 of Schedule 4 to the Corporations Law, ASIC may, by declaration:
(a) vary or revoke a relevant transitional instrument or requirement, or a determination under subregulation (1), that applies on the day on which the determination is made; or
(b) modify the application of a relevant transitional instrument or requirement that applies on the day on which the determination is made.
12.5.02(3)
However, ASIC must not vary or modify a relevant transitional instrument or requirement, or a determination, in relation to an obligation, contravention of which results in the commission of an offence, so as to make it more difficult to comply with the obligation.
12.5.02(4)
Also, ASIC must consult with APRA before:
(a) varying or revoking an ASIC transitional standard that is also an APRA transitional prudential standard; or
(b) modifying the application of an ASIC transitional standard that is also an APRA transitional prudential standard.
12.5.02(5)
A failure to comply with subregulation (4) does not affect the action taken by ASIC.
REGULATION 12.5.03 12.5.03 EFFECT OF DETERMINATIONS AND DECLARATIONS
A relevant transitional instrument or requirement has effect subject to a determination or declaration that applies to the instrument or requirement. REGULATION 12.5.04 PUBLICATION OF DETERMINATIONS AND DECLARATIONS 12.5.04(1)
If a relevant transitional instrument or requirement to which a determination or declaration relates was, before the transfer date, subject under a previous governing Code to a publication requirement corresponding to publication in the Gazette, the determination or declaration must be published in the Gazette.
12.5.04(2)
If a relevant transitional instrument or requirement to which a determination or declaration applies was not, before the transfer date, subject under a previous governing Code to a publication requirement corresponding to publication in the Gazette, a copy of the determination or declaration must be:
(a) given to each transferring financial institution of this jurisdiction to which the relevant transitional instrument or requirement applies; or
(b) otherwise made available to the institution.
REGULATION 12.5.05 12.5.05 WHEN DETERMINATIONS AND DECLARATIONS TAKE EFFECT
A determination or declaration takes effect on the day stated in the determination or declaration. REGULATION 12.5.06 INSPECTION AND PURCHASE OF COPIES OF INSTRUMENTS 12.5.06(1)
ASIC must take reasonable steps to ensure that copies of the current text of the following relevant transitional instruments or requirements are available for inspection and purchase:
(a) each provision of an instrument mentioned in paragraph (b) or (c) of the definition of relevant transitional instrument or requirement in regulation 12.5.01 that is the subject of a determination or declaration under subregulation 12.5.02(1) or (2);
(b) each ASIC transitional standard.
12.5.06(2)
A failure to comply with subregulation (1) does not affect the operation of a relevant transitional instrument or requirement.
PART 12.6 - FINANCIAL REPORTING BY CERTAIN BODIES CORPORATE REGULATION 12.6.01 APPLICATION OF PART 12.6.01(1)
This Part applies to a body corporate that is:
(a) a transferring financial institution of this jurisdiction; or
(b) a company that is permitted to use the expression building society , credit society or credit union under section 66 of the Banking Act 1959.
12.6.01(2)
This Part applies in relation to the following members of the body corporate:
(a) members who hold only member shares;
(b) if the body is a company limited by guarantee - the members of the company;
(c) if the body is a company limited by shares and guarantee - the members of the company who do not hold shares in the company.
REGULATION 12.6.02 12.6.02 MODIFICATION OF CERTAIN PROVISIONS OF CORPORATIONS LAW
For clause 38 of Schedule 4 to the Corporations Law, this Part modifies the application of section 314 of the Law in relation to the members of the body corporate. REGULATION 12.6.03 MEMBERS ETC MAY ELECT TO RECEIVE REPORTS 12.6.03(1)
The body corporate may give notice to a member, or to an applicant for membership, of the body corporate that he or she may elect to receive:
(a) the reports mentioned in paragraph 314(1)(a) of the Corporations Law; or
(b) if the body corporate prepares concise reports mentioned in paragraph 314(1)(b) of the Law, those reports.
12.6.03(2)
The notice must include a statement to the effect that:
(a) a report mentioned in subregulation (1) sets out information about:
(i) the financial position and performance of the body corporate; and
(ii) the efficiency with which the body corporate is being managed; and
(iii) the financial risks to which the body corporate is exposed; and
(b) if the member does not elect to receive a report, the body corporate is not required to send copies of the reports or concise reports mentioned in subregulation (1) to the member; and
(c) despite a member of the body corporate electing not to receive those reports or concise reports, or not making an election, the member may at any time elect to receive the relevant reports.
12.6.03(3)
The member or applicant is taken not to have elected to receive a report if the body corporate has not received the election within 21 days of notice being given in accordance with subregulation (1).
12.6.03(4)
If the member elects not to receive the reports or concise reports mentioned in subregulation (1), or does not make an election, section 314 of the Corporations Law does not apply to the body corporate in relation to the member.
12.6.03(5)
If the applicant elects not to receive the reports or concise reports mentioned in subregulation (1), or does not make an election, section 314 of the Corporations Law does not apply to the body corporate in relation to the applicant if he or she becomes a member of the body corporate to whom this Part applies.
REGULATION 12.6.04 COPIES OF REPORTS TO BE AVAILABLE TO MEMBERS 12.6.04(1)
If the body corporate gives notice under subregulation 12.6.03(1), it must make copies of the relevant reports mentioned in that subregulation available for collection by its members at:
(a) the registered office of the body corporate; and
(b) every other place where the body corporate conducts business that is open to the public.
12.6.04(2)
Copies of the reports must be made available by the body corporate from the deadline mentioned in subsection 315(1) of the Corporations Law for reporting to members until 1 month after the day on which its next AGM after the end of the financial year is held.
REGULATION 12.6.05 12.6.05 RECORDS TO BE KEPT ABOUT NOTICES
A body corporate must, not later than 28 days after a notice is given under subregulation 12.6.03(1) to a member of the body corporate, record in writing:
(a) the date on which the notice was given to the member; and
(b) whether the member elected to receive the reports or concise report mentioned in that subregulation.
Example of recordingPART 12.7 - OTHER DISCLOSURE Division 1 - Preliminary REGULATION 12.7.01 12.7.01 DEFINITIONS FOR PART 12.7
An entry made in a register kept under Part 2C of the Corporations Law.
In this Part:
ASIC transitional standard
means:
(a) a provision of a previous governing Code that is specified in Schedule 12; or
(b) an instrument made under a provision mentioned in paragraph (a).
relevant financial institution
means the following bodies:
(a) a transferring financial institution of this jurisdiction;
(b) a company that is permitted to use the expression, building society , credit society or credit union under section 66 of the Banking Act 1959;
(c) a friendly society;
(d) an Australian ADI to which a declaration under regulation 12.7.02 applies. REGULATION 12.7.02 DECLARATIONS BY ASIC 12.7.02(1)
This regulation applies, in relation to an Australian ADI, on:
(a) the initiative of ASIC; or
(b) application made to ASIC in writing by the ADI or another person.
12.7.02(2)
ASIC may declare that the Australian ADI conducts financial business of the same kind as the financial business of a transferring financial institution of this jurisdiction that was, immediately before the transfer date, registered as a Special Services Provider under the AFIC Code of this jurisdiction.
12.7.02(3)
A declaration:
(a) must be in writing given to the Australian ADI; and
(b) takes effect when the declaration, or a copy of the declaration, is given to that ADI.
Division 2 - Continued application of certain provisions REGULATION 12.7.03 CONTINUATION OF CERTAIN PROVISIONS OF PREVIOUS GOVERNING CODES 12.7.03(1)
For clause 39 of Schedule 4 to the Corporations Law, this regulation applies provisions (as modified in this regulation) of a previous governing Code to a relevant financial institution if, immediately before the transfer date, the provisions applied to the institution.
12.7.03(2)
Subsection 402(1) of the Financial Institutions Code, and section 79 of the Friendly Societies Code, of this jurisdiction apply to the relevant financial institution as if:
(a) a reference to a financial body or a society were a reference to the relevant financial institution; and
(b) a reference to applicable standards were a reference to the ASIC transitional standards.
12.7.03(3)
However, subsections 255(6), (7) and (8) of the Financial Institutions Code of this jurisdiction apply in relation to a special resolution of the relevant financial institution that amends a provision of the constitution of the institution that would, directly or indirectly, affect:
(a) the operation of an exempt stock market; or
(b) the timely disclosure of information to holders or potential holders of securities traded on an exempt stock market.
12.7.03(4)
Subsections 255(6), (7) and (8) of the Financial Institutions Code of this jurisdiction apply for the purposes of subregulation (3) as if:
(a) a reference to society were a reference to the relevant financial institution; and
(b) a reference to financial institutions legislation were a reference to the Corporations Law and the Corporations Regulations; and
(c) a reference to standards were a reference to the ASIC transitional standards.
REGULATION 12.7.04 CONTINUATION OF ASIC TRANSITIONAL STANDARDS 12.7.04(1)
For clause 39 of Schedule 4 to the Corporations Law and subject to this Division, the ASIC transitional standards:
(a) continue to apply in relation to a transferring financial institution of this jurisdiction to the extent that the standards applied to the institution immediately before the transfer date; and
(b) apply in relation to a relevant financial institution of a kind mentioned in paragraph (b) or (c) of the definition of that expression in regulation 12.7.01 to the extent that the standards applied to an institution of that kind immediately before the transfer date; and
(c) apply in relation to an Australian ADI to which a declaration under regulation 12.7.02 applies to the extent that the standards applied to Australian ADIs immediately before the transfer date.
12.7.04(2)
However, Prudential Standard 6.8.3, as applied by subregulation (1), does not authorise ASIC to grant an exemption.
Note Regulation 12.7.05 authorises ASIC to make a declaration having the effect of an exemption to which Prudential Standard 6.8.3 relates.
REGULATION 12.7.05 EXEMPTION FROM, AND MODIFICATION OF, CERTAIN PROVISIONS 12.7.05(1)
This regulation applies, in the circumstances to which Prudential Standard 6.8.3 referred immediately before the transfer date, on:
(a) the initiative of ASIC; or
(b) application made to ASIC in writing by a person to whom Division 3 of Part 7.3 of the Corporations Law, or regulation 7.3.13A or 7.3.13B, applies or another person.
12.7.05(2)
ASIC may, by Gazette notice, declare:
(a) that Division 3 of Part 7.3 of the Corporations Law, or regulation 7.3.13A or 7.3.13B, does not apply to a person to whom the declaration applies; and
(b) that a provision mentioned in paragraph (a) applies to a person to whom the declaration applies as if the provision were modified in accordance with the declaration.
12.7.05(3)
Division 3 of Part 7.3 of the Corporations Law, and regulations 7.3.13A and 7.3.13B, apply subject to a declaration applying in relation to that Division or regulation.
12.7.05(4)
A declaration:
(a) may be made subject to a condition stated in the exemption; and
(b) takes effect on the day on which it is published.
PART 12.8 - SHARES IN CERTAIN BODIES CORPORATE Division 1 - Preliminary REGULATION 12.8.02 12.8.02 APPLICATION OF PART 12.8
This Part applies to a body corporate that is:
(a) a transferring financial institution of this jurisdiction; or
(b) a company that is permitted to use the expression, building society , credit society or credit union under section 66 of the Banking Act 1959. REGULATION 12.8.03 WHAT IS A MEMBER SHARE 12.8.03(1)
A share in the body corporate to which subregulation (2) or (3) applies is a member share .
12.8.03(2)
This subregulation applies if the share:
(a) is not an ED security; and
(b) has a fixed value; and
(c) is held by a single person, or 2 or more persons jointly; and
(d) entitles the holder, or joint holders, to use services provided by the body corporate; and
(e) is not transferable or transmissible, or is only transferable or transmissible to a person or body specified in the rules or constitution of the body corporate in circumstances stated in the rules or constitution.
12.8.03(3)
This subregulation applies if:
(a) the share is taken to have been issued under paragraph 12(1)(b), (c) or (d) of Schedule 4 to the Corporations Law; or
(b) that Law applies to the share under clause 15 of that Schedule; or
(c) the share is declared under regulation 12.8.04 to be a member share; or
(d) the share is issued under regulation 12.8.11 or 12.8.12.
REGULATION 12.8.04 DECLARATIONS BY ASIC 12.8.04(1)
This regulation applies, in relation to a share in the body corporate, on:
(a) the initiative of ASIC; or
(b) application made to ASIC in writing by the body corporate or another person.
12.8.04(2)
ASIC may declare in writing that shares are, or are not, member shares of the body corporate.
12.8.04(3)
The declaration takes effect when the declaration, or a copy of the declaration, is given to the body corporate.
Division 2 - Member shares REGULATION 12.8.05 12.8.05 NOTICE REQUIREMENTS
For clause 38 of Schedule 4 to the Corporations Law, Part 2H.6 of the Law does not apply in relation to a member share of the body corporate. REGULATION 12.8.06 REGISTERS OF MEMBERS 12.8.06(1)
For clause 38 of Schedule 4 to the Corporations Law, the Law is modified in accordance with this regulation.
12.8.06(2)
The register of members that is mentioned in subsection 169(1) of the Corporations Law may have a separate part for members of the body corporate who hold member shares.
12.8.06(3)
Section 173 of the Corporations Law is modified in relation to the body corporate by inserting after subsection 173(1):
(1A)
However, a body corporate mentioned in regulation 12.8.02 of the Corporations Regulations may, before allowing a person to inspect the part of the register for members of the body corporate who hold member shares, require the person to agree in writing with the body that the person will only:
(a) divulge information obtained by the person from inspecting the register to a person who is, or to persons who are, specified in the agreement; or
(b) use information obtained by the person from inspecting the register for a purpose that is, or purposes that are, specified in the agreement.
(1B)
Also, the body corporate may refuse to allow a person to inspect the part of the register for members of the body who hold member shares if the body is not satisfied that:
(a) the person is a member of the body who intends to call a meeting of members, or of particular members, of the body; or
(b) the person proposes to inspect the register for a purpose that is approved in writing by ASIC:
(i) on its own initiative; or
(ii) on the written application of the person or of another person.
12.8.06(4)
Section 173 of the Corporations Law is modified in relation to the body corporate by inserting after subsection 173(3):
(3A)
However, a body corporate mentioned in regulation 12.8.02 of the Corporations Regulations may, before giving a person a copy of the part of the register for members of the body corporate who hold member shares, require the person to agree in writing with the body that the person will only:
(a) give the original copy, or a copy of that original, to a person who is, or to persons who are, specified in the agreement; or
(b) use information obtained from that part of the register for a purpose that is, or purposes that are, specified in the agreement.
(3B)
Also, the body corporate may refuse to give a person a copy of the part of the register for members of the body who hold member shares if the body is not satisfied that:
(a) the person is a member of the body who intends to call a meeting of members, or of particular members, of the body; or
(b) the person proposes to use information obtained from that part of the register for a purpose that is approved in writing by ASIC:
(i) on its own initiative; or
(ii) on the written application of the person or of another person.
12.8.06(5)
In subregulations (3) and (4), a reference to the part of the register for members of a body corporate who hold member shares includes a reference to:
(a) the register of members of the body corporate that is a company limited by guarantee; and
(b) the register of members of the body corporate limited by shares and guarantee who do not hold shares in the body.
REGULATION 12.8.06A MEMBER SHARES - LIABILITY TO PAY CALLS 12.8.06A(1)
For clause 38 of Schedule 4 to the Corporations Law, the operation of subsection 254M(1) of the Law is modified in accordance with this regulation.
12.8.06A(2)
If a member share in the body corporate is partly-paid, the shareholder is not liable to pay a call on the share, or on a winding up of the body corporate, without the consent of the shareholder, to the extent that the unpaid amount is increased as a result of the conversion of the share in accordance with regulation 12.2.04.
REGULATION 12.8.07 12.8.07 DISCLOSURE IN ANNUAL RETURNS
For clause 38 of Schedule 4 to the Corporations Law, item 8 in the table set out in section 348 of the Corporations Law does not apply in relation to a member of the body corporate holding only a member share, or member shares, in the body. REGULATION 12.8.08 12.8.08 MEMBER SHARES - NUMBERING AND CERTIFICATES
For clause 38 of Schedule 4 to the Corporations Law, sections 1086 and 1096 of the Law do not apply in relation to a member share of the body corporate. REGULATION 12.8.09 MEMBER SHARES - UNCLAIMED PROPERTY 12.8.09(1)
For clause 38 of Schedule 4 to the Corporations Law, section 1343 of the Law does not apply in relation to a member share of the body corporate.
12.8.09(2)
For clause 38 of Schedule 4 to the Corporations Law, the constitution of the body corporate may provide that if a member share is cancelled, and the value of the share is transferred, the value of the share is to be treated as unclaimed moneys held by the body corporate.
Division 3 - Certain shares in transferring building societies and credit unions REGULATION 12.8.10 12.8.10 DEFINITIONS FOR DIVISION 3
In this Division:
transferring building society
means a transferring financial institution of this jurisdiction mentioned in paragraph (a) of the definition of
transferring financial institution of this jurisdiction
in clause 1 of Schedule 4 to the Corporations Law.
transferring credit union
means a transferring financial institution of this jurisdiction mentioned in paragraph (b) of the definition of
transferring financial institution of this jurisdiction
in clause 1 of Schedule 4 to the Corporations Law.
A transferring building society that is a company limited by shares may issue a share in the company giving the holder of the share the same rights and obligations in relation to the share as the holder of a membership share in the building society that is taken to have been issued on the transfer date under clause 12 of Schedule 4 to the Corporations Law has in relation to that share.
12.8.11(2)
However, the transferring building society must not issue the share if its constitution has been modified under paragraph 24(1)(c) of Schedule 4 to the Corporations Law.
12.8.11(3)
The provisions of the Corporations Law that apply in relation to the issue of a share in a company limited by shares that is not issued under this regulation also apply to a share that is issued under this regulation for all matters that are not dealt with in subregulations (1) and (2).
12.8.11(4)
This regulation does not affect:
(a) the capacity of a transferring building society to issue shares in the company otherwise than under this regulation; or
(b) a share issued otherwise than under this regulation.
REGULATION 12.8.12 TRANSFERRING CREDIT UNIONS MAY ISSUE SHARES EQUIVALENT TO WITHDRAWABLE SHARES 12.8.12(1)
A transferring credit union that is a company limited by shares may issue a share in the company that:
(a) is redeemable on the same terms as a withdrawable share in the credit union was withdrawable immediately before the transfer date; and
(b) otherwise gives the same rights to, and imposes the same obligations on, the holder of the share as the holder of a withdrawable share in the credit union had in relation to that share immediately before the transfer date.
12.8.12(2)
However, the transferring credit union must not issue the share if its constitution has been modified under paragraph 24(1)(c) of Schedule 4 to the Corporations Law.
12.8.12(3)
The provisions of the Corporations Law that apply in relation to the issue of a share in a company limited by shares that is not issued under this regulation also apply to a share that is issued under this regulation for all matters that are not dealt with in subregulations (1) and (2).
12.8.12(4)
This regulation does not affect:
(a) the capacity of a transferring credit union to issue shares in the company otherwise than under this regulation; or
(b) a share issued otherwise than under this regulation.
PART 12.9 - WINDING UP AND DEREGISTRATION OF CERTAIN TRANSFERRING FINANCIAL INSTITUTIONS REGULATION 12.9.01 12.9.01 APPLICATION OF PART 12.9
For clause 39 of Schedule 4 to the Corporations Law, this Part applies if, immediately before the transfer date, a transferring financial institution of this jurisdiction was being wound up under a law other than the previous governing Code. REGULATION 12.9.02 WINDING UP 12.9.02(1)
The law in force in this jurisdiction, before the commencement of the previous governing Code, that applied to the winding up of the transferring financial institution ( the relevant law ) continues to so apply on and after the transfer date as if that Code, and the Corporations Law, had not been enacted.
12.9.02(2)
However, for this regulation, a reference in the relevant law to the Registrar is read as if it were a reference to ASIC.
12.9.02(3)
Information about the transferring financial institution given to ASIC in a notice mentioned in regulation 12.2.09, or under the relevant law, is taken to be information given to ASIC in relation to the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction.
12.9.02(4)
In subregulation (3):
national scheme law of this jurisdiction
has the meaning given by section 5 of the ASC Law.
REGULATION 12.9.03 DEREGISTRATION 12.9.03(1)
Despite regulation 12.7.02, this regulation applies if the transferring financial institution had not been deregistered before the transfer date as a result of being wound up.
12.9.03(2)
Sections 601AB, 601AC, 601AD, 601AE, 601AF, 601AG and 601AH of the Corporations Law apply to the deregistration of the transferring financial institution.
SCHEDULE 1 - LIST OF FORMS IN SCHEDULE 2
(regulation 1.0.03)
| Column 1 | Column 2 | Column 3 | Column 4 |
| Item | Provision of the Corporations Law or the Regulations | Description of form | No. of form |
| Chapter 1 Introductory | |||
| 1 | Regulation 1.0.16 | Verification or certification of a document | 911 |
| 1A | Regulation 1.0.21 | Cover page for office copy of a court order | 105 |
| 2 | Subsection 117(2) | Certification of compliance with stamp duty law | 207Z |
| Subsection 163(3) | |||
| Subsection 254X(2) | |||
| Subsection 601BC(2) | |||
| 3 | Subparagraph 206F(1)(b)(i) | Notice to demonstrate why disqualification should not occur | 5249 |
| 4 | Subsection 206F(3) | Notice of disqualification from managing corporations | 587 |
| Chapter 3 Internal administration | |||
| 23A | Section 250P | Extension of time for holding AGM | 2501 |
| 25 | Section 263 | Notification of details of a charge | 309 |
| Section 264 | |||
| 26 | Paragraph 263(2)(b) | Notification of further issue of debentures in a series | 310 |
| 26A | Paragraph 265(4)(b) | Certification of compliance with stamp duties law | 350 |
| 27 | Subsections 268(1) & (2) | Notification of assignment or change to details of a charge | 311 |
| 28 | Subsection 269(1) | Notification of discharge or release of property from a charge | 312 |
| 30 | Paragraph 324(2)(e) | Return of members of firm of auditors | 314 |
| 31 | Paragraph 329(11)(c) | Notice of resignation or removal of auditor | 315 |
| 32 | Subsection 335(1) | Annual return | 316 |
| Subsection 335(1A) | |||
| Chapter 4 Various corporations | |||
| Chapter 5 External administration | |||
| 43 | Subsection 414(2) | Notice to dissenting shareholder | 501 |
| 44 | Paragraph 414(9)(a) | Notice to remaining shareholder | 502 |
| 44A | Subsection 419A(3) | Notice of controller's intention not to exercise property rights | 503 |
| 45 | Subsection 427(1) | Notification that a person has been appointed controller/entered into possession etc | 504 |
| Subsection 427(1A)(a) | |||
| Paragraph 427(1B)(a) | |||
| 46 | Subsections 427(2) & (4) | Notification of appointment or cessation as an external administrator | 505 |
| Paragraph 450A(1)(a) | |||
| Subsections 537(1) & (2) | |||
| Regulation 5.3A.03 | |||
| 47 | Subsection 427(3) | Notification of change of address of an external administrator | 506 |
| Subsection 537(1) | |||
| Regulation 5.3A.04 | |||
| 48 | Paragraph 147(2)(b) | Report as to affairs | 507 |
| Subsection 421A(1) | |||
| Paragraph 429(2)(b) | |||
| Subsection 430(1) | |||
| Subsection 438B(2) | |||
| Paragraph 439A(4)(a) | |||
| Subsection 475(1) | |||
| Subsection 475(2) | |||
| Subsection 497(5) | |||
| 49 | Subsection 430(1) | Statement verifying report | 507A |
| Subsections 475(1) & (2) | |||
| 50 | Paragraph 411(9)(a) | Presentation of accounts by scheme administrator/controller/administrator of deed of company arrangement | 508 |
| Subsection 432(1A) | |||
| Regulation 5.3A.06 & Schedule 8A | |||
| 51 | Subparagraph 497(2)(b)(i) | Presentation of summary of affairs of a company | 509 |
| 51A | Subsection 438C(3) | Notice to deliver books of company to the administrator | 509A |
| 51B | Subsection 443B(3) | Notice of administrator's intention not to exercise property rights | 509B |
| 51C | Paragraph 445F(2)(a) | Notice of meeting of creditors to vary or terminate deed of company arrangement | 509C |
| 51D | Paragraph 446A(5)(a) | Notice of special resolution to wind up company | 509D |
| Subregulation 5.3A.07(5) | |||
| 51E | Paragraph 450B(a) | Notice to creditors of execution of a deed of company arrangement | 509E |
| 51F | Paragraph 450C(a) | Notice of failure to execute deed of company arrangement | 509F |
| 51G | Paragraphs 450D(a) & (b) | Notice of termination of deed of company arrangement | 509G |
| 51H | Paragraph 459E(2)(e) | Creditor's statutory demand for payment of debt | 509H |
| 60 | Section 465A | Notification of court action relating to winding up | 519 |
| Paragraphs 470(1)(a), (b) & (c) | |||
| 61 | Subsections 494(1) & (2) | Declaration of solvency | 520 |
| 62 | Subsection 496(2) | Notice of meeting of creditors under section 496 | 521 |
| Subregulation 5.6.12(2) | |||
| 63 | Subsection 496(7) | Notice of holding of meeting of creditors to consider appointing a new liquidator | 522 |
| 64 | Subsections 509(3) and (4) | Notification of final meeting convened by liquidator | 523 |
| 65 | Subsection 539(1) | Presentation of accounts and statement by liquidator | 524 |
| 66 | Subsection 568A(1) | Notice of disclaimer of onerous property | 525 |
| 68 | Paragraph 568(8)(a) | Application requiring liquidator to decide whether to disclaim property | 527 |
| 69 | Subsection 601AA(2) | De-registration - voluntary | 6010 |
| 71 | Subregulation 5.6.12(2) | Notice of meeting | 529 |
| 71A | Paragraph 5.6.12(2)(aa) | Notice of first meeting of creditors of company under administration | 529A |
| 71B | Subsection 449C(5) | Notice of meeting of creditors to ratify appointment of administrator | 529B |
| 72 | Regulation 5.6.13 | Statement in writing of posting of notice of meeting | 530 |
| 73 | Paragraph 5.6.27(2)(a) | List of persons present at meeting of members or contributories | 531A |
| 73A | Paragraph 5.6.27(2)(b) | List of persons present at meeting of creditors or debenture holders | 531B |
| 73B | Paragraph 5.6.27(2)(c) | List of persons present at meeting of committee of inspection or committee of creditors | 531C |
| 74 | Regulation 5.6.29 | Appointment of proxy | 532 |
| 75 | Subregulation 5.6.39(3) | Notice to submit particulars of debt or claim | 533 |
| 76 | Subregulation 5.6.48(3) | Notice inviting formal proof of debt or claim | 534 |
| 77 | Subregulation 5.6.49(2) | Formal proof of debt or claim (General form) | 535 |
| 78 | Subregulation 5.6.49(2) | Formal proof of debt or claim on behalf of employees | 536 |
| 79 | Subregulation 5.6.54(1) | Notice of rejection of formal proof of debt or claim | 537 |
| 80 | Regulation 5.6.58 | Provisional list of contributories | 538 |
| 81 | Subregulation 5.6.59(1) | Notice to contributories of appointment to settle list of contributories | 539 |
| 82 | Subregulation 5.6.59(2) | Statement in writing of posting of notices of appointment to settle list or supplementary list of contributories | 540 |
| 83 | Subregulation 5.6.60(2) | Certificate of liquidator of final settlement of list of contributories | 541 |
| 84 | Subregulation 5.6.61(1) | Provisional supplementary list of contributories | 542 |
| 85 | Subregulation 5.6.61(1) | Certificate of liquidator of settlement of supplementary list of contributories | 543 |
| 86 | Subregulation 5.6.62(4) | Notice to contributory of final settlement of list or supplementary list of contributories and of inclusion in list | 544 |
| 87 | Subregulation 5.6.62(5) | Statement in writing of giving notice to persons placed on the list or supplementary list of contributories | 545 |
| 88 | Subregulation 5.6.65(1) | Notice of intention to declare a dividend | 546 |
| 89 | Subregulation 5.6.65(1) | Notice to creditor or person claiming to be a creditor of intention to declare a dividend | 547 |
| 90 | Subregulation 5.6.65(1) | Notice to creditor or person claiming to be a creditor of intention to declare a final dividend | 548 |
| 91 | Subregulation 5.6.67(3) | Notice of declaration of dividend | 549 |
| 92 | Regulation 5.6.70 | Notice to liquidator to pay dividend to a person named | 550 |
| 93 | Subregulation 5.6.71(1) | Schedule of contributories or other persons to whom a distribution of surplus is to be paid | 551 |
| 94 | Subregulation 5.6.71(2) | Notice of distribution of surplus to contributories or other persons | 552 |
| 95 | Regulation 5.6.72 | Authority to liquidator to pay distribution of surplus to a person named | 553 |
| Chapter 6 Acquisition of shares | |||
| 96 | Subsection 671B(4) | Notice of initial substantial holder | 603 |
| 97 | Subsection 671B(4) | Notice of change of interests of substantial holder | 604 |
| 98 | Subsection 671B(4) | Notice of ceasing to be a substantial holder | 605 |
| Chapter 7 Securities | |||
| 110 | Subregulation 7.3.06(2) | Notice of application for discharge of security | 702 |
| 111 | Section 790 | Notice of particulars of cessation or change in relation to the holder of a licence | 703 |
| 112 | Section 790 | Notice of person becoming director of or secretary to body corporate | 704 |
| 113 | Section 791 | Annual statement by a dealer or investment adviser that is not a body corporate | 705 |
| 115 | Section 811 | Notice of *place/*change of place where register of holders of proper authorities is kept | 707 |
| 116 | Section 811 | Notice of *holding/*ceasing to hold a proper authority | 708 |
| 117 | Paragraph 857(3)(b) | Return of members of firm of auditors | 709 |
| 118 | Subsection 860(2) | Accounts prepared by a dealer who is not a body corporate | 710 |
| 119 | Subsection 860(2) | Statement relating to accounts of a dealer that is a body corporate | 711 |
| 120 | Subsection 860(2) | Auditor's report | 712 |
| 121 | Subsection 872(3) | Disclosure document | 713 |
| 122 | Subsection 881(1) | Register of securities | 714 |
| 123 | Sections 882 and 883 | Notification of register of interests in securities or change of details of register | 715 |
| 124 | Subsection 910(1) | Notice calling for claims for compensation from a securities industry fidelity fund | 716 |
| 125 | Subsection 909(2) | Notice of appeal | 717 |
| 126 | Subsection 911(4) | Notice of disallowance of claim for compensation from a securities exchange fidelity fund | 718 |
| 127 | Section 947 | Statement about payments out of a development account | 719 |
| 127A | Paragraph 959(4)(a) | Notice of compensation for losses resulting from the unauthorised execution of a document of transfer of rights, shares, debentures or other securities by dealer | 719A |
| 127B | Subsection 961E(4) | Notice calling for claims against Securities Exchanges Guarantee Corporation | 719B |
| 128 | Subsection 969(1) | Notice calling for claims against SEGC | 720 |
| 129 | Section 975 | Notice of disallowance of claim against SEGC | 721 |
| 129A | Subsection 1001B(1) | Disclosure notice for unlisted disclosing entity | 1003 |
| Chapter 8 The futures industry | |||
| 132 | Section 1156 | Notice of cessation/change in relation to the holder of a licence | 802 |
| 133 | Section 1156 | Particulars of a change in relation to the holder of a licence due to a change of a director or the secretary | 802A |
| 134 | Subsection 1157(1) | Annual statement by a licensee or former licensee | 803 |
| 136 | Paragraph 1206(1)(b) | Agreement to waive the operation of paragraph 1206(1)(b) of the Corporations Law in relation to the issue of contract notes | 803C |
| 137 | Subparagraph 1210(a)(iii) | Risk disclosure statement | 804 |
| 138 | Paragraph 1215(3)(e) | Return of members of firm of auditors | 805 |
| 139 | Subsection 1218(2) | Profit and loss account and balance sheet of a futures broker that is a body corporate | 806 |
| 140 | Subsection 1218(2) | Profit and loss account and balance sheet of a futures broker who is not a body corporate | 807 |
| 141 | Subsection 1218(2) | Auditor's report | 807A |
| 142 | Subsection 1241(2) | Notice of appeal | 808 |
| 143 | Subsection 1242(1) | Notice calling for claims for compensation from the fidelity fund of a relevant organisation | 809 |
| 144 | Subsection 1243(4) | Notice of disallowance of claims for compensation from the fidelity fund of a futures organisation | 810 |
| 145 | Regulation 8.3.06 | Notice of *place/*change of place where register of holders of proper authorities is kept | 811 |
| 146 | Regulation 8.3.06 | Notice of *holding/*ceasing to hold a proper authority or *particulars of holders of proper authorities to be entered in register of holders of proper authorities | 812 |
| Chapter 9 Miscellaneous | |||
| 146A | Paragraph 1274(8)(h) | Notification of information supplementary to a form or document previously lodged | 902 |
| 147 | Subsection 1279(2) | Application for registration as an auditor under subsection 1279(2) | 903A |
| 148 | Subsection 1279(2) | Application for registration *as a liquidator or *as a liquidator of a specified body corporate under subsection 1279(9) | 903B |
| 149 | Subsection 1284(3) | Notice of application for discharge of security under subsection 1284(3) | 904 |
| 150 | Subsection 1287(1) | Particulars of cessation or change relating to person registered as an auditor under subsection 1287(1) | 905 |
| 151 | Subsections 1287(2) & (3) | Particulars of cessation or change relating to person registered as a liquidator under subsection 1287(2) or a liquidator of a specified body corporate under subsection 1287(3) | 905A |
| 153 | Subsections 1288(1) & (3) | Presentation of triennial statement by an auditor | 907 |
| 154 | Subsections 1288(1), (3) and (5) | Presentation of statement by a liquidator | 908 |
| 154A | Subsection 1302(4) | Notice of change of address | 909 |
| 155 | Section 1313 | Penalty notice | 910 |
(regulations 1.0.02 and 1.0.03)
The forms in Schedule 2 are not included in this compilation SCHEDULE 3 - SPECIFIED OFFICES
(regulation 6.2.02)
| Column 1 | Column 2 | Column 3 | Column 4 |
| Item | Office | Law | Jurisdiction |
| 1 | Treasurer | Commonwealth | |
| 2 | trustee | Parts IV, X and XI of the Bankruptcy Act 1966 | Commonwealth |
| 3 | Chairperson of the Australian Securities and Investments Commission | Australian Securities and Investments Commission Act 1989 | Commonwealth |
| 4 | Deputy Chairperson of the Australian Securities and Investments Commission | Australian Securities and Investments Commission Act 1989 | Commonwealth |
| 5 | Member of the Australian Securities and Investments Commission | Australian Securities and Investments Commission Act 1989 | Commonwealth |
| 6 | President of the Corporations and Securities Panel | Australian Securities and Investments Commission Act 1989 | Commonwealth |
| 7 | Member of the Corporations and Securities Panel | Australian Securities and Investments Commission Act 1989 | Commonwealth |
| 8 | Treasurer | Western Australia | |
| 9 | Commissioner for Corporate Affairs | Western Australia | |
| 10 | Public Trustee | Public Trustee Act 1941 | Western Australia |
| 11 | Master of the Supreme Court | Supreme Court Act 1935 | Western Australia |
| 12 | Registrar of the Supreme Court | Supreme Court Act 1935 | Western Australia |
| 13 | Treasurer | Victoria | |
| 14 | Commissioner for Corporate Affairs | Victoria | |
| 15 | Public Trustee | Public Trustee Act 1958 | Victoria |
| 16 | Master of the Supreme Court | Supreme Court Act 1958 | Victoria |
| 17 | Treasurer | New South Wales | |
| 18 | Public Trustee | Public Trustee Act 1913 | New South Wales |
| 19 | Master | Division 1 of Part VIII of the Supreme Court Act 1970 | New South Wales |
| 20 | Supervisor of Loan Fund Companies | Loan Fund Companies Act 1976 | New South Wales |
| 21 | Protective Commissioner | Mental Health Act 1958 | New South Wales |
| 22 | Treasurer | Queensland | |
| 23 | Commissioner for Corporate Affairs | Queensland | |
| 24 | Public Trustee | Public Trustee Act 1978 | Queensland |
| 25 | Registrar | Supreme Court Acts 1861-1980 | Queensland |
| 26 | Treasurer | South Australia | |
| 27 | Curator of Prisoners Property | Criminal Law Consolidation Act 1935-80 | South Australia |
| 28 | Public Trustee | Administration and Probate Act 1919-1980 | South Australia |
| 29 | Master or accountant | Supreme Court Act 1935-1980 | South Australia |
| 30 | administrator | Chapter XLIX of the Criminal Code | Tasmania |
| 31 | Treasurer | Tasmania | |
| 32 | Commissioner for Corporate Affairs | Tasmania | |
| 33 | Public Trustee | Public Trustee Office Act 1930 | Tasmania |
| 34 | Registrar of the Supreme Court | Supreme Court Act 1959 | Tasmania |
| 35 | Treasurer | Australian Capital Territory | |
| 36 | Public Trustee | Administration and Probate Ordinance 1929 and the Public Trustee Act 1985 | Australian Capital Territory |
| 37 | Registrar of the Supreme Court | Australian Capital Territory Supreme Court Act 1933 | Commonwealth |
| 38 | Master of the Supreme Court | Australian Capital Territory Supreme Court Act 1933 | Commonwealth |
| 39 | Treasurer | Northern Territory | |
| 40 | Public Trustee | Public Trustee Act 1979 | Northern Territory |
| 41 | Master of the Supreme Court | Northern Territory | |
| 42 | Commissioner for Corporate Affairs | Companies (Administration) Act 1986 | Northern Territory |
(regulation 1.1.01)
| Column 1 | Column 2 | Column 3 | ||
| Item | Matter | Amount | ||
| $ | ||||
| 1 | Inspection of registers for the purposes of: | |||
| (a) subsection 216F(2): | ||||
| (i) if a register is not kept on a computer - for each inspection | 5.00 | |||
| (ii) if a register is kept on a computer - for each inspection | a reasonable amount that does not exceed the marginal cost to the company of providing an inspection | |||
| 1A | Inspection of registers or records for the purposes of: | |||
| (a) subsection 271(3) | ||||
| (b) subsection 668A(3); | ||||
| for each inspection | 5.00 | |||
| 2 | Supply under section 139 by a company to a member of the company of a copy of the company's constitution | 10.00 | ||
| 3 | Supply of copies for the purposes of subsection 216F(3): | |||
| (a) if a register is not kept on a computer - for each page, or part of a page, not exceeding international sheet size A4 of the copy supplied or, at the option of the supplier, for each 100 words or part of 100 words | 0.50 | |||
| (b) if a register is kept on a computer - for each inspection | a reasonable amount that does not exceed the marginal cost to the company of providing a copy | |||
| 3A | Supply of copies for the purposes of: | |||
| (a) subsection 246G(3) | ||||
| (b) subsection 251B(4) | ||||
| (ba) subsection 253N(4) | ||||
| (c) subsection 271(4) | ||||
| (d) subsection 812(3) | ||||
| (e) paragraph 1178(3)(a); | ||||
| for each page, or part of a page, not exceeding international sheet size A4 of the copy supplied or, at the option of the supplier, for each 100 words or part of 100 words | 0.50 | |||
| 4 | Payment for each name and address provided under subsection 641(5) | 0.10 | ||
| 5 | For compliance with a direction under section 672A | 5.00 | ||
| 6 | Replacement of lost or destroyed certificate for the purposes of subsection 1089(1) | 10.00 | ||
| 7 | Fee for supply by a responsible entity of a copy of the constitution of a registered scheme under subsection 601GC(4) | 10.00 |
(regulation 2M.3.01)
CHAPTER 3 - INTERNAL ADMINISTRATION PART 3.6 - ACCOUNTS PART 1 - PRELIMINARY 1 Interpretation (1)In this Schedule, unless the contrary intention appears:
accounts
has the same meaning as in section 9 of the Corporations Law.
balance sheet
does not include the notes to a balance sheet.
business undertaking
means a financial or business undertaking or scheme that is carried on by means of or through an unincorporated association, a joint venture, a partnership or a trust, in Australia or elsewhere.
comparative financial period
means:
(a) in relation to:
(i) the accounts of a corporation referred to in paragraph 1058(5)(b) of the Corporations Law; or
(ii) if that body is a chief entity - the consolidated accounts prepared in accordance with that paragraph for a period of 6 months after the end of a financial year of that body;
the period of 6 months after the end of the immediately preceding financial year of that body; or
(b) in relation to a set of consolidated accounts of:
(i) a borrowing corporation; and
(ii) each guarantor body referred to in paragraph 1058(6)(b) of the Corporations Law for a period of 6 months after the end of a financial year of the borrowing corporation;
the period of 6 months after the end of the immediately preceding financial year of that corporation or body; or
(c) in relation to the accounts of any other corporation for a financial period - the immediately preceding financial period.
controlled entity
means an entity that is under the control of a chief entity.
current assets
means, in relation to:
(a) a corporation - cash or other assets of the corporation that would, in the ordinary course of business of the corporation, be consumed or converted into cash within 12 months after the end of the last financial period of that corporation; or
(b) an economic entity - cash or other assets of each entity that would, in the entity's ordinary course of business, be consumed or converted into cash within 12 months after the end of the entity's last financial period.
current liabilities
means, in relation to:
(a) a corporation - liabilities of the corporation that would in the ordinary course of business of the corporation be due and payable within 12 months after the end of the last financial period of the corporation; or
(b) an economic entity - liabilities of each entity that would, in the ordinary course of the entity's business, be due and payable within 12 months after the end of the entity's last financial period.
director's valuation
means, in relation to the assets of a company or a controlled entity, a valuation that is not an independent valuation.
financial period
means, in relation to:
(a) the accounts of:
(i) a corporation referred to in paragraph 1058(5)(b) of the Corporations Law; or
(ii) if that body is a chief entity - the consolidated accounts prepared in accordance with that paragraph;
the period of 6 months after the end of the financial year of that body; and
(b) a set of consolidated accounts of:
(i) a borrowing corporation; and
(ii) each guarantor body referred to in paragraph 1058(6)(b) of the Corporations Law;
the period of 6 months after the end of the financial year of the borrowing corporation or body; and
(c) the consolidated accounts of a chief entity:
(i) if the financial period of a controlled entity does not end on the date on which the financial period of the chief entity ends - the financial period of the chief entity; and
(ii) in any other case - the financial period of each controlled entity that does not end on that date; and
(d) the accounts or consolidated accounts of any other company - a financial year of the company.
independent valuation
means, in relation to a valuation of assets of a company or a controlled entity, a valuation made by a person:
(a) who is an expert in relation to valuations of that type; and
(b) whose pecuniary or other interests could not reasonably be regarded as being capable of affecting the person's ability to give an unbiased opinion in relation to that valuation.
information
includes particulars, an amount, or both.
interest
includes discount on bills of exchange.
profit and loss account
does not include the notes to a profit and loss account.
remuneration
means any money, consideration or benefit but does not include, in relation to:
(a) a person who is a director or executive officer of a corporation - amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the corporation or any related body corporate; or
(b) a person not resident in Australia who is a director of a corporation - emoluments:
(i) received; or
(ii) due and receivable;
by the person from a holding company:
(iii) of which he or she is a director or employee; and
(iv) that is a corporation formed or incorporated outside Australia;
being emoluments received, or due and receivable, by the person as director or employee.
right or interest
, in relation to a business undertaking, means a right to participate, or any interest, in any profits, assets or realisation of the undertaking, whether or not that right or interest:
(a) is enforceable; or
(b) is evidenced by a formal document; or
(c) relates to a physical asset.
specified stock exchange
means:
(a) Australian Stock Exchange Limited; or
(b) American Stock Exchange Inc.; or
(c) New York Stock Exchange Inc.; or
(d) New Zealand Stock Exchange; or
(e) Pacific Coast Stock Exchange; or
(f) The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited; or
(g) The Johannesburg Stock Exchange; or
(h) The Mid-West Stock Exchange; or
(i) The Montreal Exchange; or
(j) The Paris Bourse; or
(k) The Toronto Stock Exchange.
the accounts
means the accounts of a company but does not include the consolidated accounts if the company is a chief entity.
the profit or loss
means, in relation to:
(a) a company - the operating profit or loss and extraordinary items of the company after providing for income tax; or
(b) an economic entity - the operating profit or loss and extraordinary items attributable to members of the chief entity after providing for income tax.
(2)
In this Schedule, unless the contrary intention appears:
(a) a reference to a requirement is a reference to a requirement of this Schedule; and
(b) a reference to a class of assets or liabilities of a company or economic entity is a reference to:
(i) a class of assets or liabilities; and
(ii) any other assets or liabilities;
that share a common nature and function in the business of that company or economic entity referred to in a subparagraph in clause 13; and
(c) a reference to the assets, liabilities, share capital or reserves of an economic entity or to the provisions made by the economic entity is a reference to the assets, liabilities, share capital or reserves of each entity in the economic entity or to the provisions made by each entity respectively; and
(d) a reference to cash as a current asset includes a reference to money held at call with a bank or financial institution.
(3)
In this Schedule, unless the contrary intention appears, the following entities are related entities:
(a) if an entity is the chief entity of another entity - the entity and the other entity;
(b) if an entity is under the control of a chief entity - the entity and the chief entity;
(c) if an entity is under the control of the chief entity of another entity:
(i) the entity and the chief entity; and
(ii) the entity and the last-mentioned entity.
(3A)
Unless the contrary intention appears, a word or expression (except a word or expression that is defined in subclause (1) or to which subclause (2) or (3) applies) that is used in this Schedule has the same meaning as in the Corporations Law as in force immediately before the commencement of item 29 in Schedule 3 to the Company Law Review Act 1998.
(3B)
Unless the contrary intention appears, a reference to a provision of the Corporations Law is a reference in this Schedule to the provision of the Law as in force immediately before the commencement of item 29 in Schedule 3 to the Company Law Review Act 1998.
(4)
Unless the contrary intention appears in accounts or consolidated accounts, an expression used in those accounts or consolidated accounts has the same meaning as in this Schedule.
2 Adaptation of format (1)
In this clause, prescribed requirement means, in relation to accounts or consolidated accounts:
(a) a form of words; or
(b) the order in which headings, subheadings or entries are to be arranged.
(2)
Subject to subclause (3), if:
(a) in the opinion of the directors of a company, having regard to the nature of the business conducted by the company; or
(b) in the opinion of the directors of a chief entity, having regard to the nature of the business conducted by the economic entity;
any prescribed requirement would prevent the accounts of that company, or the consolidated accounts, as the case may be, being prepared so as to give a true and fair view of the profit or loss or state of affairs of the company or the economic entity in any respect, those accounts or consolidated accounts may depart from that requirement to the extent necessary to give a true and fair view.
(3)
A prescribed requirement to specify an item of information in a profit and loss account or balance sheet forming part of accounts or consolidated accounts may only be departed from if that information is given separately in a note forming part of those accounts or consolidated accounts.
(4)
If a provision of this Schedule requires any matter relating to an entry in a profit and loss account or a subheading in a balance sheet to be provided for in a note, that matter may be incorporated into that entry or subheading.
3 General requirements for information given in accounts or consolidated accounts (1)
Subject to subclauses (3), (4) and (5), for the purpose of making out the accounts or the consolidated accounts for a financial period, a reference in this Schedule to the stating of information:
(a) in an entry in a profit and loss account, or in a note to that account, is to be read as a reference to the stating of that information for that period, and the stating of the corresponding information for the comparative financial period, in that entry or note; and
(b) in a subheading in a balance sheet, or in a note to that balance sheet, is to be read as a reference to the stating of that information as at the end of that period, and the stating of the corresponding information as at the end of the comparative financial period, in that subheading or note.
(2)
If the financial periods referred to in paragraph (1)(a) or (b) are not equal in length, the periods covered must be clearly indicated in the accounts or consolidated accounts.
(3)
For the purpose of making out for a financial period the first accounts after the incorporation of a company or the first consolidated accounts after a company becomes a chief entity, a reference in this Schedule to the stating of information does not include the stating of information corresponding to that information for or as at the end of the comparative financial period.
(4)
Information relating to a matter for or as at the end of the comparative financial period need not be given in those accounts or consolidated accounts if the directors, in those accounts or consolidated accounts, state in relation to that matter, that that information cannot be so given without unreasonable expense or delay.
(5)
If Division 3 of Part 4 applies to a company or an economic entity for a financial period but did not so apply for the comparative financial period, the information required by that Division to be included in the accounts or consolidated accounts is not required to be given for or as at the end of the comparative financial period.
(6)
If the accounts or the consolidated accounts are required to include a note because of:
(a) a provision in Division 2 of Part 3 - that note must be a note to the profit and loss account; or
(b) a provision in Division 3 of Part 3 or clause 28, 32 or 33 - that note must be a note to the balance sheet; or
(c) any other provision - that note must be a note to the profit and loss account, or to the balance sheet, forming part of those accounts or consolidated accounts.
(7)
If a provision of this Schedule requires information to be given in a note, a note prepared for the purposes of that provision must contain sufficient headings, cross-references or other particulars to enable the subject matter or purpose of the note to be readily identified.
4 Language and monetary values (1)
Accounts and consolidated accounts must be expressed in the English language.
(2)
In accounts and consolidated accounts all amounts must be expressed in Australian currency.
PART 2 - FORMAT OF PROFIT AND LOSS ACCOUNT AND BALANCE SHEET 6 Profit and loss account - basic format (1)
A profit and loss account must have the following format:
Operating profit or loss;
Income tax attributable to operating profit or loss;
Operating profit or loss after income tax;
Profit or loss on extraordinary items;
Income tax attributable to profit or loss on extraordinary items;
Profit or loss on extraordinary items after income tax;
Operating profit or loss and extraordinary items after income tax;
Outside equity interests in operating profit or loss and extraordinary items after income tax;
Operating profit or loss and extraordinary items after income tax attributable to members of the chief entity;
Retained profits or accumulated losses at the beginning of the financial year;
Aggregate of amounts transferred from reserves;
Total available for appropriation;
Dividends provided for or paid;
Aggregate of amounts transferred to reserves;
Other appropriations;
Retained profits or accumulated losses at the end of the financial year.
(2)
Such of the words set out in the table in subclause (1) as are relevant must be given in a profit and loss account with the total amount to which those words refer as an entry or part of an entry.
7 Balance sheet - basic format (1)
A balance sheet must have the following format:
CURRENT ASSETS
Cash
Receivables
Investments
Inventories
Other
TOTAL CURRENT ASSETS
NON-CURRENT ASSETS
Receivables
Investments
Inventories
Property, plant and equipment
Intangibles
Other
TOTAL NON-CURRENT ASSETS
TOTAL ASSETS
CURRENT LIABILITIES
Creditors and borrowings
Provisions
Other
TOTAL CURRENT LIABILITIES
NON-CURRENT LIABILITIES
Creditors and borrowings
Provisions
Other
TOTAL NON-CURRENT LIABILITIES
TOTAL LIABILITIES
NET ASSETS
SHAREHOLDERS' EQUITY
Share capital
Reserves
Retained profits or accumulated losses
Shareholders' equity attributable to members of the chief entity
Outside equity interests in controlled entities
Total shareholders' equity.
(2)
For the purposes of this clause, each of the following groups of words set out in the table in subclause (1) is a heading:
CURRENT ASSETS
NON-CURRENT ASSETS
CURRENT LIABILITIES
NON-CURRENT LIABILITIES
SHAREHOLDERS' EQUITY
(3)
The headings set out in the table in subclause (1), to the extent that they are relevant, must be given in a balance sheet.
(4)
The words set out in the table in subclause (1) that are relevant and do not comprise a heading must be given in a balance sheet with the total amount to which those words refer as a subheading or part of a subheading.
(5)
Each amount given in a balance sheet forming part of the accounts or the consolidated accounts, as the amount of assets of the company or economic entity as at the end of a financial period must be the difference between:
(a) the total of the amounts for which those assets are recorded in the books of the company, or of each entity in an economic entity at the end of that period; and
(b) the total provided for in respect of those assets by way of depreciation, amortisation, diminution in value or doubtful debts in those books as at the end of that period.
PART 3 - NOTES TO THE ACCOUNTS OR CONSOLIDATED ACCOUNTS Division 1 - Preliminary 8 Application of Part (1)
This Part applies:
(a) to all companies; and
(b) to all economic entities.
Division 2 - Notes relating to the profit and loss account 9 Profit and loss account - basic notes (1)
The accounts, or the consolidated accounts, must include a note of:
(a) each of the following items credited as revenue in determining operating profit or loss:
(i) dividends;
(ii) interest;
(iii) material profits arising from the sale of non-current assets;
(iv) material increases arising from the revaluation of non-current assets;
(v) material transfers from provisions;
(vi) abnormal items; and
(b) each of the following items charged as expense in determining operating profit or loss:
(i) interest;
(ii) bad and doubtful debts in each class of debts;
(iii) material losses arising from the sale of non-current assets;
(iv) material decreases arising from the revaluation of non-current assets;
(v) amount charged for depreciation, amortisation or diminution in value, as the case may be, of each of the following classes of assets:
(A) investments;
(B) inventories;
(C) property, plant and equipment;
(D) intangibles;
(E) any other assets;as given in the balance sheet forming part of those accounts;
(vi) material transfers to provisions other than provisions referred to in subparagraph (v);
(vii) abnormal items; and
(d) each material extraordinary item included in determining the profit or loss.
(2)
A note referred to in subclause (1) must specify:
(a) particulars, and the total amount, of each of the items, to which it relates; and
(b) in the case of the item referred to in subparagraph (1)(b)(v) - particulars, and the total amount, of each class of assets so affected.
10 Income tax attributable to accounting profit and to other years (1)
If there is a difference of more than 15% between the total amount provided for income tax attributable to a company, or to a economic entity, for a financial period and the amount of income tax that would be payable for that period on the income of the company or economic entity, calculated by reference to its operating profit or loss and extraordinary items, the accounts of the company or economic entity must include a note of a reconciliation of that difference.
(2)
If provision is made for the payment of income tax attributable to a company or to an entity in an economic entity during a period that, in whole or part, is a period other than the financial period in which that provision was made, the accounts of the company or the consolidated accounts relating to the economic entity must include a note stating:
(a) the amount (if any) of that provision that is attributableto that financial period; and
(b) the amount of that provision that is attributable to any other period.
11 Interest or dividends to or from related and other corporations
If:
(a) at any time during a financial period, or a comparative financial period, a company was related to a corporation or corporations; and
(b) subclause 9(2) requires a note to include particulars and an amount relating to interest or dividends;
those particulars must include:
(c) the part of that amount that is attributable to that corporation or those corporations; and
(d) the part of that amount that is attributable to other persons. Division 3 - Notes relating to the balance sheet Subdivision A - Classes of assets etc 12 Classes of assets, liabilities etc (1)
For the purposes of this Schedule, the assets, liabilities, share capital and reserves of a corporation, or economic entity, and the provisions made by a corporation or by a economic entity, must each be divided into classes, according to its nature and function in the business of the corporation or economic entity.
(2)
In relation to a subheading in a balance sheet forming part of the accounts or the consolidated accounts, the accounts or consolidated accounts must include a note of each of the classes included in determining the total amount given in the subheading.
(3)
Without limiting the classes that may be included in a note in accordance with subclause (2), those classes must include the classes which, in accordance with clause 13, relate to that subheading.
(4)
A note required by this Subdivision or by Subdivision B must specify particulars and the total amount of each class to which it relates.
13 Given classes of assets, liabilities etc
The accounts or the consolidated accounts must include a note of each of the classes in the following paragraphs:
(a) for receivables as current assets:
(i) trade debtors;
(ii) bills of exchange and promissory notes;
(iii) in the case of accounts of a company that acts as trustee - rights of indemnity for liabilities incurred by the company on behalf of the trust;
(iv) in the case of consolidated accounts relating to an economic entity if one of the entities in the economic entity acts as trustee - rights of indemnity for liabilities incurred by that entity on behalf of the trust; and
(b) for investments as current assets:
(i) government and semi-government stocks and bonds;
(ii) debentures;
(iii) shares;
(iv) options for shares; and
(c) for inventories as current assets:
(i) raw materials and stores;
(ii) work in progress;
(iii) finished goods;
(iv) land held for resale; and
(d) for receivables as non-current assets:
(i) trade debtors;
(ii) bills of exchange and promissory notes;
(iii) in the case of accounts of a company that acts as trustee - rights of indemnity for liabilities incurred by the company on behalf of the trust;
(iv) in the case of consolidated accounts relating to an economic entity if one of the entities in the economic entity acts as trustee - rights of indemnity for liabilities incurred by the entity on behalf of the trust; and
(e) for investments as non-current assets:
(i) government and semi-government stocks and bonds;
(ii) debentures;
(iii) shares;
(iv) options for shares;
(v) rights or interests in business undertakings; and
(f) for inventories as non-current assets:
(i) raw materials and stores;
(ii) work in progress;
(iii) finished goods;
(iv) land held for resale; and
(g) for property, plant and equipment as non-current assets:
(i) land and buildings;
(ii) plant or equipment; and
(h) for intangible non-current assets:
(i) goodwill;
(ii) patents, trade marks and licences; and
(j) for creditors and borrowings as current liabilities:
(i) bank overdrafts;
(ii) bank loans;
(iii) debentures;
(iv) bills of exchange and promissory notes;
(v) trade creditors;
(vi) lease liabilities; and
(k) for provisions as current liabilities:
(i) dividends;
(ii) taxation;
(iii) employee entitlements; and
(l) for creditors and borrowings as non-current liabilities:
(i) bank loans;
(ii) debentures;
(iii) other loans;
(iv) trade creditors;
(v) lease liabilities; and
(m) for provisions as non-current liabilities - employee entitlements; and
(n) for reserves:
(i) share premium account;
(ii) capital redemption reserve;
14 Provisions in relation to assets
(iii) other reserves, other than capital reserve arising on consolidation.
If:
(a) at the end of a financial period a provision for depreciation, amortisation, diminution in value or doubtful debts exists in the books of a company or an entity in an economic entity in relation to a class of assets of the company or the entity; and
(b) that class is required to be included in a note referred to in subclause 12(2), the particulars of that class required for the purposes of subclause 12(4) include:
(i) the total amount of that provision; and
Subdivision B - Special requirements in relation to certain classes of items 15 Particulars of each class of share capital (1)
(ii) the amount equal to the residue remaining after deducting from the total amount referred to in subclause 12(4) the total amount referred to in paragraph (a).
In relation to each class of share capital of a company other than a chief entity that is required to make out consolidated accounts, the particulars and amount required by subclause 12(4) to be given for a financial period must include:
(a) the particulars and amount, at the end of that period, of:
(i) authorised capital;
(ii) paid-up capital;
(iii) calls in arrear;
(iv) capital on which interest has been paid out of capital during that financial period and the rate of the interest so paid;
(v) capital that is not capable of being called up except in the event of, and for the purposes of, the winding up of the company; and
(b) in relation to unissued shares for which options are outstanding:
(i) the number of those shares in that class as at the end of that period;
(ii) the terms of issue of each class of shares; and
(c) in relation to any class of preference shares:
(i) the rate of dividend;
(ii) the amount of arrears of dividend as at the end of that period;
(iii) whether they are cumulative or non-cumulative, participating or non-participating;
(iv) whether they are to be redeemed or, at the option of the company, are liable to be redeemed;
(v) if the preference shares are to be redeemed or at the option of the company are liable to be redeemed - the date on or before which they are to be redeemed, or are liable to be redeemed, the earliest date on which the company has power to redeem them and the amount of any premium or discount on redemption; and
(d) for all shares issued during that period:
(i) the purposes of the issue;
(ii) the classes of shares issued;
(iii) the number of shares issued of each class;
(iv) the terms of issue of each class of the shares; and
(e) if the company is a no liability company, the number of shares forfeited during that period.
(2)
Subclause (1) applies to the consolidated accounts as if:
(a) "a company other than a chief entity that is required to make out consolidated accounts" were omitted and "an entity in an economic entity that has been issued to persons not being members of the economic entity" were substituted; and
(b) in subparagraph (1)(a)(i) "in the case of the chief entity" were inserted before "authorised capital"; and
(c) in subparagraphs (1)(a)(v), (1)(c)(iv) and (v) and paragraph (1)(e) "the company" (wherever occurring) were omitted and "the entity" substituted; and
(d) in paragraph (1)(d) "for all shares issued during that period" were omitted and "in respect of the shares issued during that period" substituted.
16 Transfers to or from each class of reserves
The accounts or the consolidated accounts for a financial period must include a note of material transfers to and from any class of reserves during that period. 17 Subdivision of certain classes of assets and liabilities (1)
If:
(a) a class of assets of a corporation comprising non-current assets, inventories or investments (other than investments listed on a specified stock exchange that have been recorded in the books of the corporation at market value) is required to be included in a note to a balance sheet referred to in subclause 12(2); and
(b) part of that class (in this subclause referred to as the designated part ) is valued otherwise than at the cost of manufacture, production or other acquisition;
the particulars of that class required for the purposes of subclause 12(4) include:
(c) a summary description of the designated part, including in the case of non-current assets or investments:
(i) the year of their valuation;
(ii) the basis of the valuation;
(iii) whether the valuation was a director's valuation or an independent valuation;
(iv) if that balance sheet is the first balance sheet in which reference is made to a valuation referred to in subparagraph (iii) - the name of the person who made that valuation; and
(d) a summary description of the remainder of the class; and
(e) the total of the designated part and the remainder of the class; and
(f) if the total amount of a provision relating to those assets and the total amount of the residue must be included in that note because of clause 14 - each of those amounts must be apportioned so as to state the amount that is attributable to the designated part and the amount that is attributable to the remainder of the class.
(2)
If:
(a) a class comprising liabilities is required to be included in a note referred to in subclause 12(2); and
(b) part of that class comprises liabilities secured by a charge;
the particulars of that class required for the purposes of subclause 12(4) include:
(c) a summary of the nature of the security; and
(d) the total amount of the liabilities secured by the charge.
(3)
If:
(a) a class of assets comprising investments is required to be included in a note referred to in subclause 12(2); and
(b) part of that class comprises investments listed on a specified stock exchange;
the particulars of that class required for the purposes of subclause 12(4) include:
(c) a summary description of the investments so listed; and
(d) the market value of the investments so listed worked out on the official quotation on the stock market of that exchange.
(4)
If a class comprising:
(a) bills of exchange due and receivable by a corporation is required to be included in a note referred to in subclause 12(2) and part of that class comprises bills accepted or endorsed by a bank; or
(b) interest paid or payable by a corporation is required to be included in a note referred to in subclause 12(2) and part of that class comprises interest capitalised; or
(c) a provision for income tax is required to be included in a note referred to in subclause 12(2) and part of that class comprises a provision for future liability; or
(d) assets is required to be included in a note referred to in subclause 12(2) and part of that class comprises capitalised lease assets;
the particulars of that class required for the purposes of subclause 12(4) include:
(e) a summary description of that part; and
(f) the total amount of that part.
18 Debts, charges or options (1)
If:
(a) at the end of a financial period, a company holds shares in a corporation or options for shares in a corporation; and
(b) in relation to the balance sheet forming part of the accounts of the company as at the end of that period, a note is required to include particulars relating to those shares and options for the purposes of subclause 12(4);
those particulars must include particulars showing the extent to which those shares or options are held:
(c) in a related body corporate; or
(d) in another corporation.
(2)
If:
(a) at the end of a financial period, debts other than trade debts are due and receivable by or payable by a company (in this subclause referred to as "the subject company"); and
(b) in relation to the balance sheet forming part of the accounts of the subject company as at the end of that period, a note is required to include particulars relating to those debts for the purposes of subclause 12(4);
those particulars must include particulars showing the extent to which those debts are due and receivable from or payable to:
(c) the chief entity (if any) of the subject company; and
(d) any other related body corporate or an entity controlled by the chief entity.
(3)
If at the end of a financial period there remains in existence a loan made, guaranteed or secured by a company, by the company and one of its controlled entities (if any) or by one or more of its controlled entities to:
(a) a director of the company, a spouse of a director, or a relative of a director or spouse; or
(b) a director of a related body corporate, a spouse of a director, or a relative of a director or spouse; or
(c) a trustee of a trust under which a person referred to in paragraph (a) or (b) has a beneficial interest, if the loan is made to the trustee in his or her capacity as trustee; or
(d) a corporation, if a person referred to in paragraph (a) or (b) has a direct or indirect beneficial interest in shares in the corporation the nominal value of which is not less than 10 per cent of the nominal value of the issued share capital of the corporation;
the accounts of that company for that period must include a note stating the total amount of that loan or of all such loans.
(4)
For the purposes of paragraph (3)(d), a person referred to in paragraph (3)(a) or (b) is not to be taken to have a beneficial interest in shares in a corporation only because:
(a) the company has a relevant interest in shares in the corporation; and
(b) the person has a relevant interest in shares in the company.
(5)
If:
(a) at the end of a financial period, an entity in an economic entity holds shares, or options for shares, in a corporation that is not a corporation in the economic entity; and
(b) in relation to the balance sheet forming part of the consolidated accounts at the end of that period, a note is required to include particulars relating to those shares and options for the purposes of subclause 12(4);
those particulars must include particulars showing the extent to which those shares or options are held:
(c) in a related body corporate; or
(d) in another corporation.
(6)
If:
(a) at the end of a financial period debts other than trade debts are due and receivable by or payable by an entity in an economic entity (in this subclause referred to as "the subject entity"); and
(b) in relation to the balance sheet forming part of the consolidated accounts relating to the economic entity as at the end of that period, a note is required to include particulars relating to those debts for the purposes of subclause 12(4);
those particulars must include particulars showing the extent to which those debts are due and receivable from and payable to:
(c) the chief entity (if any) of the subject entity; and
(d) any other related body corporate.
(7)
If, at the end of a financial period, there remains in existence a loan made, guaranteed or secured by an entity in an economic entity to:
(a) a director of the entity, a spouse of a director, or a relative of a director or spouse; or
(b) a director of a related entity, a spouse of a director, or a relative of a director or spouse; or
(c) if the loan is made to a trustee of a trust under which a person referred to in paragraph (a) or (b) has a beneficial interest - the trustee; or
(d) if a person referred to in paragraph (a) or (b) has a direct or indirect beneficial interest in shares in an entity, the nominal value of which is not less than 10 per cent of the nominal value of the issued share capital of the entity - the entity;
the consolidated accounts for that period must include a note stating the total amount of that loan, or all of those loans.
(8)
For the purposes of paragraph (7)(d), if an entity makes, guarantees or secures a loan to an entity referred to in that paragraph, a person referred to in paragraph (7)(a) or (b) must not be taken to have a beneficial interest in shares in the entity only because:
(a) the first-mentioned entity has a relevant interest in shares in the entity so referred to; and
(b) the person has a relevant interest in shares in the first-mentioned entity.
19 Land held for sale (1)
If land is held for sale by a company or by an entity in an economic entity, the accounts or the consolidated accounts must include a note of:
(a) the total cost of acquiring the land; and
(b) the total amount of any expenses involved in developing the land that have been capitalised; and
(c) the total of any rates, taxes, interest or other amounts relating to the land that have been capitalised.
(2)
In subclause (1), land includes an interest in land.
20 Unearned revenue
If a balance sheet forming part of the accounts or the consolidated accounts specifies a class of receivables, no part of those receivables that comprises unearned revenue must be included in an estimate of the gross amount of those receivables unless the amount of the unearned revenue is shown as a deduction from that estimated amount. 21 Valuations supported by guarantees, warranties or indemnities
If the valuation given in relation to an asset included in a class specified in a balance sheet forming part of the accounts or consolidated accounts as at the end of a financial period is supported by the existence of a guarantee, warranty or indemnity and there is a material difference between:
(a) the estimated realisable value of the asset as at the end of that period; and
(b) the amount at which the asset is shown in the books of the company or of an entity in an economic entity at that time;
those accounts or consolidated accounts must include a note of:
(c) the nature of the asset; and
(d) the amount at which the asset is so shown in the books; and
(e) the estimated realisable value of the asset if its value were not supported by the existence of a guarantee, warranty or indemnity; and
(f) the terms of the guarantee, warranty or indemnity; and
(g) the identity of the other party or parties to the guarantee, warranty or indemnity. Subdivision C - Commitments etc not otherwise included 22 Commitments for expenditure (1)
For the purposes of this clause:
(a) capital expenditure contracted for; and
(b) lease and hire expenditure contracted for; and
(c) each type of commitment for expenditure, according to its subject matter, other than commitments referred to in paragraph (a) or (b) or commitments for the supply of inventories;
each comprise separate types of commitments for expenditure.
(2)
If:
(a) a balance sheet forming part of the accounts or the consolidated accounts at the end of a financial period does not include commitments for expenditure; and
(b) a type of commitment for expenditure that existed at the end of that period was material;
those accounts or consolidated accounts must include a note stating separately the total amount of that type of commitment for expenditure that is payable:
(c) not later than one year; and
(d) later than one year but not later than 2 years; and
(e) later than 2 years but not later than 5 years; and
(f) later than 5 years;
after the end of that financial period.
23 Contingent liabilities (1)
The accounts as at the end of a financial period must include a note stating, so far as practicable, the total, or an estimate of the total, of any contingent liabilities of the company as at the end of that period if that amount is material.
(2)
A note stating an amount of contingent liabilities must state how much of that amount arises for each of the following categories:
(a) the company; and
(b) related body corporate; and
(c) corporations the management or operating policies of which can be significantly influenced by the company or by a related body corporate; and
(d) business undertakings the management or operating policies of which can be significantly influenced by the company or by a related body corporate or in which the right or interest of the company or a related body corporate is material; and
(e) other persons;
and give particulars of those liabilities for each category.
(3)
The consolidated accounts for a financial period must include a note stating for all entities in an economic entity, so far as practicable, the total, or an estimate of the total, of any contingent liabilities of those entities as at the end of that period if that total is material to those entities.
(4)
A note stating the total of the contingent liabilities of the entities in an economic entity (in this subclause referred to as "the subject entities") must state how much of that total arises for each of the following categories:
(a) the subject entities; and
(b) related entities of the subject entities not being entities in that economic entity; and
(c) the entities, other than entities referred to in paragraph (a) or (b), the management or operating policies of which can be significantly influenced by any of the subject entities, or by a related entity of any of the subject entities; and
(d) the business undertakings the management or operating policies of which can be significantly influenced by any of the subject entities, or by a related entity of any of the subject entities, or in which a right or interest of any of the subject entities, or of a related entity of any of the subject entities, is material; and
(e) other persons;
and give particulars of those liabilities for each category.
(5)
Subject to subclause (6), the amount and particulars for a category referred to in subclause (2) or (4) may be expressed as a total.
(6)
If the contingent liabilities in a category differ substantially in nature, the information given for that category must be sufficient to enable the amount and nature of those liabilities to be distinguished.
24 Standby arrangements, unused credit facilities etc (1)
In this clause, corporation to which this clause applies means a company or an entity in an economic entity, that is:
(a) a borrowing corporation; or
(b) a guarantor corporation; or
(c) a corporation to which the Financial Corporations Act 1974 applies.
(2)
For the purposes of this clause, each of the following is a type of financing arrangement:
(a) credit standby arrangements;
(b) loan rollover facilities; or
(c) all other financing arrangements.
(3)
If at the end of a financial period a corporation to which this clause applies has access to or provides a financing arrangement, the accounts or, if the corporation is an entity in an economic entity, the consolidated accounts relating to that economic entity, for that period, must include a note stating for that financing arrangement or all financing arrangements of the same type:
(a) its nature; and
(b) the amount or the total amount of finance that is so accessible or is so provided; and
(c) a summary of restrictions as to its use or withdrawal; and
(d) in the case of a credit standby arrangement - the total amount of credit unused.
Division 4 - Other notes to be included in the accounts or consolidated accounts 25 Remuneration of directors (1)
In this clause, income , in relation to a director of a company, means all his or her remuneration:
(a) in connection with the management of the affairs of the company, or any related body corporate, whether as a director or otherwise; and
(b) by way of brokerage or commission in consideration of:
(i) subscribing or agreeing to subscribe, whether absolutely or conditionally, for shares in or debentures of, the company or any related body corporate; or
(ii) procuring, or agreeing to procure, subscriptions, for shares in, or debentures of, the company or any related body corporate; and
(c) by way of bonuses, commissions or salaries;
but does not include:
(e) any amount to which clause 26 applies.
(2)
Subject to subclause (3), the accounts for a financial period of a company must include in a note:
(a) the total of the income received, or due and receivable, for that financial period, by all directors of the company, directly or indirectly, from the company or from any related body corporate; and
(b) the number of directors of the company whose total income received, or due and receivable, for that financial period, directly or indirectly, from the company or from any related body corporate, falls within each band of income of $10,000.
(3)
If a person:
(a) is a director of a company that is at the end of a financial period a wholly-owned subsidiary of a chief entity incorporated in Australia; and
(b) is an executive officer of that chief entity;
(c) is not a director of that chief entity; and
(d) is required to be a director of the first-mentioned company in order to discharge, in whole or in part, his or her duties as an executive officer of that chief entity;
that person is to be treated as if he or she were not a director of the first-mentioned company.
(4)
The consolidated accounts must include in a note the total of the income received, or due and receivable, directly or indirectly, for the financial period by all directors of each entity in an economic entity from:
(a) corporations of which they are directors; or
(b) related bodies corporate; or
(c) an entity controlled by the chief entity.
(5)
If a person:
(a) is a director of a corporation that, at the end of a financial period, is a wholly-owned subsidiary of a company incorporated in Australia that is a chief entity; and
(b) is an executive officer of the chief entity; and
(c) is not a director of the chief entity; and
(d) is required to be a director of the corporation in order to discharge in whole or in part, his or her duties as an executive officer of the chief entity;
the person must be treated for the purposes of subclause (4) as if he or she were not a director of the corporation.
26 Payments to persons or to prescribed superannuation funds (1)
Subject to subclause (2), if during a financial period:
(a) a company or an associate gave a prescribed benefit to a person, or to a prescribed superannuation fund, in connection with the retirement of a person from a prescribed office in relation to the company - the accounts of the company; or
(b) an entity in an economic entity or an associate gave a prescribed benefit to a person, or to a prescribed superannuation fund, in connection with the retirement of a person from a prescribed office in relation to the company or a controlled entity - the consolidated accounts;
must include a note stating particulars of that payment.
(2)
The particulars referred to in subclause (1):
(a) must be particulars that have been disclosed to, and approved in a general meeting by, the members of the company or corporation, as the case may be, in accordance with subsection 237(2) of the Corporations Law; and
(b) may be given in summary form in the accounts or consolidated accounts, as the case may be, if the directors, having regard to the number of persons to whom those particulars would relate and the nature of those particulars, state in those accounts or consolidated accounts, as the case may be, that the provision of full particulars would be unreasonable.
(3)
An expression used in this clause has the same meaning as in section 237 of the Corporations Law.
27 Remuneration of auditors (1)
The accounts for a financial period must include in a note:
(a) the total of the remuneration received, or due and receivable, for that financial period by the auditor of the company, directly or indirectly, from the company, or any related body corporate, in connection with auditing the accounts of the company; and
(b) the total of the remuneration received, or due and receivable, for that financial period by the auditor of the company, directly or indirectly, from the company, or any related body corporate, in connection with any other services provided by that auditor to the company.
(2)
The consolidated accounts for a financial period must include in a note:
(a) the total amount of the remuneration received, or due and receivable, for the period by the auditor or auditors of an entity in the economic entity, directly or indirectly, from an entity in the economic entity, or from related entity, in connection with auditing the accounts and consolidated accounts of the chief entity and the accounts of each of its controlled entities; and
(b) the total amount of the remuneration received, or due and receivable, for the period by the auditor or auditors of an entity in the economic entity, directly or indirectly, from an entity in the economic entity, or from a related entity, in connection with other services provided by the auditor or the auditors to an entity in the economic entity.
(3)
If a part of the remuneration referred to in paragraph (2)(a) or (b) has not been received, or is not due and receivable, by the auditor of the chief entity referred to in subclause (2), the note referred to in that subclause must state the amount of that part separately.
(4)
In this clause, auditor , in relation to a company, means:
(a) a person who has or shares; or
(b) a member of a firm which has or shares;
the duty of making the report required by section 331A of the Corporations Law on the accounts or consolidated accounts of that company.
PART 4 - SPECIAL ACCOUNTING REQUIREMENTS IN RELATION TO CERTAIN CORPORATIONS Division 1 - Borrowing and guarantor corporations 28 Schedule of debts receivable and debts payable (1)
The accounts of a borrowing corporation or guarantor body for a financial period must include, in relation to the balance sheet, a note containing a schedule setting out, separately, estimates of:
(a) debts receivable; and
(b) debts payable;
shown in that balance sheet that are receivable or payable, as the case requires:
(c) not later than one year; and
(d) later than one year but not later than 2 years; and
(e) later than 2 years but not later than 5 years; and
(f) later than 5 years;
after the end of that financial period.
(2)
Subclause (1) applies to the consolidated accounts required by subsection 1058(6) of the Corporations Law as if the reference in that subclause to the accounts of a borrowing corporation or guarantor body were a reference to those consolidated accounts.
Division 2 - Listed corporations 29 Remuneration of executive officers (1)
In this clause, income means remuneration but does not include:
(a) an amount paid to a person who is an executive officer of a listed corporation, or an unlisted corporation that is a subsidiary of that corporation if the person was employed by the listed or the unlisted corporation:
(i) for the whole of a financial period and worked wholly or mainly during that year outside Australia; or
(ii) for part of a financial period and worked wholly or mainly during that part of the period outside Australia; and
(b) any amount to which clause 26 applies.
(2)
The accounts of a listed corporation for a financial period must include in a note:
(a) the number of executive officers of the corporation whose total income received, or due and receivable, for that financial period, directly or indirectly, from that corporation, or any related body corporate, in connection with the management of the affairs of that corporation, or any related body corporate, whether as executive officer or otherwise, falls within each $10,000 band of income after $100,000; and
(b) the total of the income referred to in paragraph (a) of all executive officers referred to in that paragraph.
(3)
The consolidated accounts for a financial period of an economic entity must, if the chief entity is a listed corporation include in a note:
(a) the number of executive officers of the economic entity whose total income received, or due and receivable, for the financial period, directly or indirectly, from the entities in the economic entity, or a related entity, in connection with the management of the affairs of the entities in the economic entity, or a related entity, whether as executive officers or otherwise, falls within each $10,000 band of income after $100,000; and
(b) the total of the income referred to in paragraph (a) of all executive officers referred to in that paragraph.
Division 3 - Certain companies including listed corporations and borrowing corporations 30 Application of Division (1)
Subject to subclause (2), this Division applies:
(a) to a company, or to an economic entity, for a financial period (in this paragraph referred to as the initial period ) and the immediately following financial period if at the end of the financial period immediately preceding the initial period, the company, or the chief entity, was:
(i) a listed corporation; or
(ii) a borrowing corporation; and
(b) to a company or to an economic entity, if that company or the chief entity was a company other than a listed corporation or a borrowing corporation, for a financial period (in this paragraph referred to as the initial period ) and the immediately following financial period if:
(i) at the end of the financial period immediately preceding the initial period the gross assets of that company or economic entity exceeded $10,000,000; or
(ii) during the financial period immediately preceding the initial period the gross operating revenue of that company or the economic entity exceeded $20,000,000.
(2)
This Division does not apply to a corporation referred to in paragraph (1)(a) or (b) that is a wholly-owned subsidiary of another corporation incorporated in Australia.
31 Economic dependency (1)
If:
(a) the normal trading activities of a company depend on a significant volume of business with another party; and
(b) that dependency exists during all or part of a financial period;
the accounts of the company for that period must include a note explaining the nature of that dependency.
(2)
If:
(a) the normal trading activities of an entity in an economic entity depend on a significant volume of business with another party; and
(b) the activities are material in relation to the trading activities of the economic entity; and
(c) the dependency exists during all or part of a financial period;
the consolidated accounts relating to the economic entity for that period must include a note explaining the nature of the dependency.
32 Recent valuations of interests in land and buildings (1)
In this clause:
current value
, in relation to an interest in land or buildings for the purpose of accounts or consolidated accounts for a financial period, means the most recent valuation made within the last 3 years before the end of that financial period.
interest in land or buildings
means:
(a) freehold, strata title or rights to occupy land conferred by shares in a corporation; or
(b) leasehold interests in land for a term exceeding 20 years or any other interest conferring a right to reside on or otherwise occupy land;
but does not include:
(c) interests referred to in paragraphs (a) and (b) held for sale;
(d) a mere licence to occupy land; or
(e) rights for the purpose of mining or otherwise for the extraction of materials from land.
(2)
If:
(a) at the end of a financial period the assets of a company or economic entity include interests in land and buildings; and
(b) the value at which those assets are shown in accordance with clause 17 is not the current value;
the accounts of a company or the consolidated accounts relating to the economic entity for that period must include a note stating the current values of those interests at the end of that period.
(3)
The values required by subclause (2) for assets may be given as the total value if both or all of those assets, as the case may be:
(a) have been valued in the same year and on the same basis; and
(b) are the subject of the same type of valuation, being a director's valuation or an independent valuation.
33 Superannuation commitments (1)
In this clause, corporation , means a company or an entity in an economic entity.
(2)
If at the end of a financial period there is in existence a superannuation or retirement benefit plan established or sponsored by a corporation, or in which the corporation participates, the accounts of the corporation or, if the corporation is an entity in an economic entity, the consolidated accounts must include a note:
(a) stating that the plan exists; and
(b) stating the principal type of benefit provided for under the plan; and
(c) stating the basis of contributions to the plan; and
(d) stating whether the corporation is obliged to contribute to the plan and, if the corporation has such an obligation, whether it is legally enforceable;
(e) stating the date of the last actuarial assessment (if any) of the plan and the name and qualifications of the actuary who made that assessment; and
(f) subject to subclause (3), showing that funds are or are not available, as the case may be, for the purposes of the plan to satisfy all benefits that would have been vested under the plan in the event of:
(i) termination of the plan; or
(ii) voluntary termination of the employment of each employee of the corporation on the initiative of that employee; or
(iii) compulsory termination of the employment of each employee of the corporation by the corporation;
(g) if in accordance with paragraph (f) the note shows that funds are not available - subject to subclause (3), stating particulars of the deficiency; and
(h) if the calculation required to show whether funds are or are not available is not made for the last day of that period - stating the day for which that calculation was made.
(3)
If:
(a) an entity in an economic entity has a right or interest in a business undertaking that is material to the economic entity; or
(b) 2 or more entities in an economic entity have rights or interests in a business undertaking that are in total material to the economic entity;
the information required by paragraphs (2)(f) and (g) need only be given to the extent of that corporation's participation in the plan.
(4)
In working out whether funds are available for a plan established or sponsored by a corporation or in which a corporation participates, regard must be had to benefits payable to:
(a) a former employee of the corporation who is receiving benefits under the plan; or
(b) a dependant of a deceased employee or a deceased former employee of the corporation.
34 Business undertakings (1)
If at the end of a financial period a company has a right or interest in a business undertaking that is material to the company, the accounts of that company for that period must include a note stating:
(a) the nature of that right or interest; and
(b) if that undertaking is carried on through an unincorporated association, joint venture, partnership or trust that has a name - that name; and
(c) the principal activities carried on during that period in the course of the undertaking; and
(d) the amount and percentage of that right or interest in the undertaking; and
(e) the method of accounting used to record that right or interest; and
(f) the contribution of the undertaking to the profit or loss of the company; and
(g) the value of products and services directly received by the company from the undertaking after allowing for costs incurred by the company in receiving those products and services.
(2)
If at the end of a financial period:
(a) a company has rights or interests in more than one business undertaking; and
(b) none of those rights or interests are material to the company individually but in total are material to the company;
the accounts of the company for that period must include a note stating in summary form:
(c) the principal activities carried on during that financial period in the course of those undertakings; and
(d) the methods of accounting used to record those rights or interests, and for each of those methods, the amount at which those rights or interests are recorded in the books of the company; and
(e) the total contribution of those undertakings to the profit or loss of the company; and
(f) the total value of products and services directly received by the company from those undertakings after allowing for costs incurred by the company in receiving those products and services.
(3)
If at the end of a financial period:
(a) an entity in an economic entity has a right or interest in a business undertaking that is material to the economic entity; or
(b) 2 or more entities in an economic entity have rights or interests in a business undertaking that are in total material to the economic entity;
the consolidated accounts for that period must include a note stating:
(c) the nature of that right or interest; and
(d) if the undertaking is carried on by means of or through an unincorporated association, joint venture, partnership or trust that has a name - that name; and
(e) the principal activities carried on during that period in the course of the undertaking; and
(f) the amount and the percentage of that right or interest in the undertaking; and
(g) the method of accounting used to record that right or interest; and
(h) the contribution of the undertaking to the profit or loss of the economic entity; and
(j) the value of products and services directly received by the entity from the undertaking, after allowing for costs incurred by the entity in receiving those products and services.
(4)
If at the end of a financial period:
(a) an entity in an economic entity has rights or interests in more than one business undertaking; and
(b) none of those rights or interests is individually material to the entities in the economic entity, but the rights or interests are, in total, material to the economic entity;
the consolidated accounts for that period must include a note stating in summary form:
(c) the principal activities carried on during that financial period in the course of those undertakings; and
(d) the methods of accounting used to record those rights or interests, and for each of those methods, the amount at which those rights or interests are recorded in the books of the corporation; and
(e) the total contribution of those undertakings to the profit or loss of the economic entity; and
(f) the total value of products and services directly received by the economic entity from those undertakings after allowing for costs incurred by the economic entity in receiving those products and services.
35 Interests in corporations not being subsidiaries (1)
In this clause, interest includes shares in a corporation, convertible notes issued by a corporation and loans and advances made to a corporation.
(2)
If at the end of a financial period:
(a) a company has an interest in a corporation that is not a subsidiary of the company; and
(b) the interest is material to the company;
the accounts of the company for that financial period must include a note, in relation to that corporation, stating particulars of:
(c) its name; and
(d) its principal activities; and
(e) the percentage of each class of its issued shares that are held by the company; and
(f) its separate contribution to the profit or loss of the company; and
(g) the amount of that interest at the end of that period showing separately:
(i) the total amount of that interest in shares and convertible notes in the corporation; and
(ii) the amount of any loans or advances to the corporation.
(3)
If at the end of a financial period:
(a) an entity or entities in an economic entity has an interest in an entity that is not a related entity (in this subclause referred to as the subject entity ); and
(b) the interest is material to the economic entity;
consolidated accounts for that financial period must include a note, in relation to the subject entity, stating particulars of:
(c) its name; and
(d) its principal activities; and
(e) the percentage of each class of its issued shares that are held by the entity or entities in the economic entity; and
(f) its separate contribution to the profit or loss of the economic entity; and
(g) the amount of that interest at the end of that period showing separately:
(i) the total amount of that interest in shares and convertible notes in the subject entity; and
(ii) the amount of any loans or advances to the subject entity.
(4)
For the purposes of subclauses (2) and (3):
(a) in determining whether or not an interest is material; or
(b) in showing the amount of any loans or advances made to a corporation;
inter-company loans and advances must not be set off against each other.
PART 5 - ADDITIONAL REQUIREMENTS IN RELATION TO CONSOLIDATED ACCOUNTS 37 Controlled entities acquired or disposed of (1)
If, during a financial period, an entity has been acquired by an entity in an economic entity, the consolidated accounts of the economic entity must include a note stating, for each entity that has been acquired:
(a) its name; and
(b) the proportion of shares or other equity acquired in the entity; and
(c) the consideration for the shares or equity; and
(d) the fair value of its net tangible assets at the time of the acquisition.
(2)
If, during a financial period, a controlled entity is disposed of by an entity in an economic entity, the consolidated accounts for that period of the economic entity must include a note stating, for each entity that is disposed of:
(a) its name; and
(b) the operating profit or loss and extraordinary items attributable to members of the chief entity from the disposal of the entity; and
(c) the fair value of its net tangible assets at the time of the disposal; and
(d) the remaining interest held in it by the entity or entities in the economic entity.
38 Particulars in relation to controlled entities (1)
In this clause, share means a share in the issued share capital of an entity (other than a share that carries no right to participate beyond a given amount in a distribution of either profits or capital) or, if the entity does not have share capital, in the equity of the entity.
(2)
The consolidated accounts of a chief entity for a financial period must include a note stating, for each controlled entity:
(a) particulars of:
(i) its name; and
(ii) its country of formation or incorporation; and
(iii) its relationship with other entities in the economic entity;
at the end of that financial period; and
(b) the amount of its contribution to the profit or loss, during the period, of the economic entity; and
(c) if its financial year differs from that of the chief entity - particulars of its financial year; and
(d) if any of its business was carried on during that period in a country outside Australia - the name of that country.
(3)
If a controlled entity issues share capital, the particulars referred to in subparagraph (2)(a)(iii) must include, in relation to the shares held in the entity by the chief entity and each other entity in the economic entity:
(a) the amount at which the shares are recorded in the books of each entity; and
(b) the percentage of the shares held in relation to all of the shares of the entity
SCHEDULE 5A - FINANCIAL REPORTING - AUSTRALIAN BANKS AND LIFE OFFICES
(regulation 2M.6.03)
1 Definitions for ScheduleIn this Schedule:
AGM
means annual general meeting.
Chapter 2M
means Chapter 2M of the Corporations Law.
chief entity
has the meaning given in section 295 of the Corporations Law as in force immediately before the commencement of item 29 of Schedule 3 to the Company Law Review Act 1998.
life insurance law
means a law of the Commonwealth, except the Corporations Law, relating to life insurance.
(a) an Australian bank; or
(b) a life office. 2 Compliance with Chapter 2M - financial reports of Australian banks
If an Australian bank has prepared a financial report in accordance with the law of the Commonwealth, except the Corporations Law, relating to banking, the corporation is taken to have complied with the corresponding provisions of Chapter 2M. 3 Compliance with Chapter 2M - financial reports of life offices (1)
If a life office has prepared a financial report in accordance with the life insurance law (or with an order made under section 340 or 341 of the Corporations Law applying to the report) and the report was:
(a) laid before the relevant AGM of the corporation; and
(b) lodged within 3 months of the end of the period to which it relates;
the life office, and its directors and auditors, are not taken to have contravened Chapter 2M only because of the circumstances mentioned in subclause (2).
(2)
The circumstances are:
(a) a financial report was not prepared in accordance with Chapter 2M, laid before the relevant AGM of the corporation or lodged; and
(b) an audit report required by that Chapter was not laid before that AGM or lodged.
(3)
If the life office does not lay before its AGM financial reports and auditors' reports complying with the life insurance law, the life office must lodge a copy of each of the reports within 4 months of the end of the period to which it relates.
4 Auditors' reports on financial reports of life offices
If the financial report of a life office complies with the life insurance law, sections 307, 308 and 309 of the Corporations Law do not apply in relation to the report. 5 Compliance with certain provisions of Chapter 2M - prescribed corporations (1)
This clause applies to a prescribed corporation that has, in accordance with Chapter 2M as modified in its operation by this Schedule, given to its members the documents that it is required to lay before its relevant AGM.
(2)
The corporation is not taken to have contravened Division 4 of Part 2M.3 of the Corporations Law only because it did not give to its members the financial reports or other documents mentioned in the Division.
(3)
However, subclause (1) does not apply in relation to a financial report or other document that must be laid before the AGM under section 317 of the Corporations Law.
6 Directors' reports - prescribed corporations that are not chief entities
If a prescribed corporation is not a chief entity in a financial year, subsection 292(1) of the Corporations Law does not require a directors' report for the corporation to be prepared for the year. 7 Compliance with Chapter 2M - financial reports of certain chief entities (1)
This clause applies to a corporation that, during an accounting period of the corporation:
(a) was a chief entity; and
(b) controlled another corporation (a controlled entity ) that was a prescribed corporation at any time in that period.
(2)
The chief entity does not contravene Chapter 2M only because a financial report of the entity does not consolidate a controlled entity that was at any time during the accounting period to which that report relates a prescribed corporation if the report complies with subclause (3).
(3)
A financial report of the chief entity for the accounting period complies with this subclause if the report of the controlled entity for the corresponding accounting period of the controlled entity is attached to the financial report of the chief entity.
SCHEDULE 6 - AVAILABILITY OF NAMES
(regulations 2B.6.01, 2B.6.02, 5B.3.01 and 5B.3.02)
PART 1 - RULES FOR ASCERTAINING WHETHER NAMES ARE IDENTICAL 6101In comparing one name with another for paragraph 147(1)(a) or (b) or 601DC(1)(a) or (b) of the Corporations Law, the following matters are to be disregarded:
(a) the use of the definite or indefinite article as the first word in one or both of those names;
(b) the use of "Proprietary", "Pty", "Limited", "Ltd", "No Liability" or "NL" in one or both of the names;
(c) whether a word is in the plural or singular number in one or both names;
(d) the type, size and case of letters, the size of any numbers or other characters, and any accents, spaces between letters, numbers or characters, and punctuation marks, used in one or both names;
(e) the fact that one name contains a word or expression in column 2 of the following table and the other name contains an alternative for that word or expression in column 3:
| Column 1 | Column 2 | Column 3 |
| Item | Word or expression | Alternative |
| 1 | Australian | Aust |
| 2 | Company | Co or Coy |
| 3 | Co | Company or Coy |
| 4 | Coy | Company or Co |
| 5 | Number | No |
| 6 | and | & |
| 7 | Incorporated | Inc |
| 8 | Corporation | Corp |
| 9 | Australian Company Number | ACN |
For the purposes of this Part, Games authority means:
(a) in relation to a name that suggests a connection with the Summer Games of the Twenty-Seventh Olympiad - the body known as the Sydney Organising Committee for the Olympic Games; and
(b) in relation to a name that suggests a connection with the Paralympic Games to be held in Sydney in the year 2000:
(i) if the application is lodged before the registration of a company to be known as the Sydney Paralympic Organising Committee - the Director-General of the Premier's Department of New South Wales; and
6202
(ii) if the application is lodged after the registration of that company - the Sydney Paralympic Organising Committee.
For paragraph 147(1)(c) or 601DC(1)(c) of the Corporations Law, a name is unacceptable for registration, if the name:
(a) contains:
(i) any of the following words:
Olympic Paralympic Olympics Paralympics Olympiad Paralympian Olympian or an abbreviation of any of them; and
(ii) any of the following expressions:
City Summer Games Sydney Gold Two Thousand Millennium 2000
or an abbreviation of any of them; or
(b) contains:
(i) the word "24th" or "Twenty-Fourth" or "XXIVth"; and
(ii) the word "Olympic" or "Olympics" or "Games"; or
(c) contains:
(i) the word "27th" or "Twenty-Seventh" or "XXVIIth"; and
(ii) the word "Olympiad"; or
(d) contains the phrase "Share the Spirit"; or
(e) contains:
(i) the word "Sydney"; and
(ii) the number "2000" or the words "Two Thousand"; or
(f) contains:
(i) the word "Gold"; and
(ii) the number "2000" or the words "Two Thousand"; or
(g) contains:
(i) the word "Games"; and
(ii) the number "2000" or the words "Two Thousand"; or
(h) contains the phrase "Games City"; or
(i) contains the phrase "Summer Games"; or
(j) contains the phrase "Sydney Games"; or
(k) contains the phrase "Millennium Games"; or
(l) contains the phrase "Gold Games"; or
(m) contains a word or an abbreviation of a word in subparagraph (a)(i) which, in the context in which it is proposed to be used, suggests a connection with:
(i) the Summer Games of the Twenty-Seventh Olympiad, to be conducted by the body known as the International Olympic Committee; or
(ii) the Paralympic Games to be held in Sydney, New South Wales in the year 2000 and to be conducted by the body known as the International Paralympic Committee;
if that connection does not exist.
6203For paragraph 147(1)(c) or 601DC(1)(c) of the Corporations Law, a name is unacceptable for registration if the name:
(a) in the opinion of ASIC, is undesirable, or likely to be offensive to:
(i) members of the public; or
(ii) members of any section of the public; or
(b) subject to rule 6204:
(i) contains a word or phrase specified in an item in Part 3, or an abbreviation of that word or phrase; or
(ii) a word or phrase or an abbreviation having the same or a similar meaning; or
(c) subject to rule 6205, includes the word "Commonwealth" or "Federal"; or
(d) in the context in which it is proposed to be used, suggests a connection with:
(i) the Crown; or
(ii) the Commonwealth Government; or
(iii) the Government of a State or Territory; or
(iv) a municipal or other local authority; or
(v) the Government of any other part of the Queen's dominions, possessions or territories; or
(vi) a department, authority or instrumentality of the Commonwealth Government; or
(vii) a department, authority or instrumentality of the Government of a State or Territory; or
(viii) the government of a foreign country;
if that connection does not exist; or
(e) in the context in which it is proposed to be used, suggests a connection with:
(i) a member of the Royal Family; or
(ii) the receipt of Royal patronage; or
(iii) an ex-servicemen's organisation; or
(iv) Sir Donald Bradman;
if that connection does not exist; or
(f) in the context in which it is proposed to be used, suggests that the members of an organisation are totally or partially incapacitated if those members are not so affected. 6204
Paragraph 6203(b) does not apply to:
(a) item 9, 12 or 18 of Part 3 if a word in any of those items must be included in the name of:
(i) a registrable Australian body; or
(ii) a registered Australian body;
because of the law under which it is incorporated or registered; and
(b) item 14 of Part 3 if the word must be included in the name of:
(i) a registrable Australian body; or
(ii) a registered Australian body; or
(iii) a registered foreign company; or
(iv) a foreign company;
because of the law under which it is incorporated or registered.
6205Paragraph 6203(c) does not apply if ASIC is satisfied that the word is used in a geographical context. 6206
For the purposes of paragraph 6202(m), it is evidence of a connection between a body corporate and:
(a) the Summer Games of the Twenty-Seventh Olympiad, to be conducted by the body known as the International Olympic Committee; or
(b) the Paralympic Games to be held in Sydney, New South Wales in the year 2000 and to be conducted by the body known as the International Paralympic Committee;
if an application for registration of a name is accompanied by a certificate in writing by the Games authority stating that the connection exists.
6207Application under the Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for a review of a decision of the Games authority under rule 6206 not to grant a certificate stating that a connection exists between the body corporate and:
(a) the Summer Games of the Twenty-Seventh Olympiad, to be conducted by the body known as the International Olympic Committee; or
(b) the Paralympic Games to be held in Sydney, New South Wales in the year 2000 and to be conducted by the body known as the International Paralympic Committee.
Note Under subsection 367(4) of the Corporations Law, a body corporate can apply to the Minister for consent in writing to register a name that would not otherwise be available to the body corporate.
6208Rules 6201, 6202, 6206 and 6207 cease to have effect at the end of 31 December 2000. PART 3 - RESTRICTED WORDS AND PHRASES
| Column 1 | Column 2 |
| Item | Word or phrase |
| 6301 | Aboriginal Corporation |
| 6302 | Aboriginal Council |
| 6304 | Chamber of Commerce |
| 6305 | Chamber of Manufactures |
| 6306 | Chartered |
| 6307 | College of Advanced Education |
| 6308 | Consumer |
| 6309 | Co-operative |
| 6311 | Executor |
| 6312 | Friendly Society (other than in relation to the conduct of a financial business) |
| 6313 | Guarantee |
| 6314 | Incorporated |
| 6315 | Institute of Advanced Education |
| 6316 | Made in Australia |
| 6317 | R.S.L. |
| 6317A | RSL |
| 6318 | Starr Bowkett |
| 6319 | Stock Exchange |
| 6320 | Torres Strait Islander Corporation |
| 6321 | Trust |
| 6322 | Trustee |
| 6323 | University |
| Column 1 | Column 2 | Column 3 |
| Item | Word or phrase | Minister |
| 6401 | Anzac | Minister for Veterans' Affairs |
| 6403 | Geneva Cross, Red Crescent, Red Cross, Red Lion and Sun | Minister for Defence |
| 6405 | United Nations | Minister for Foreign Affairs |
| Item | Letters, word or expression | Public authority, instrumentality or agency |
| 6501 | ADI | APRA |
| 6502 | authorised deposit-taking institution | APRA |
| 6503 | bank | APRA |
| 6504 | banker | APRA |
| 6505 | banking | APRA |
| 6506 | building society | APRA |
| 6507 | credit society | APRA |
| 6508 | credit union | APRA |
| 6509 | friendly society (in relation to the conduct of a financial business) | APRA |
(regulations 2B.6.03 and 5B.3.03)
7001 Definitions for Schedule 7In this Schedule:
IATA
means the International Air Transport Association.
IATA body
means a company, registered Australian body or registered foreign company that is a member of IATA, or participates in the program conducted by IATA known as BSP Australia.
relevant information
means the information that is required under subsection 153(2), or paragraph 601DE(1)(b), (c) or (d), of the Corporations Law to be set out on a public document or negotiable instrument.
An IATA Body is exempt from the requirement to set out the relevant information on a document if:
(a) it is a document of one of the following kinds:
(i) passenger ticket and baggage check;
(ii) excess baggage ticket;
(iii) agency credit or debit memo;
(iv) credit card charge form;
(v) miscellaneous charges order;
(vi) stopover voucher;
(vii) air waybill; and
(b) either:
(i) it is in a form sponsored by IATA; or
(ii) it is required by IATA to be used by IATA bodies; or
7003 Exemption for bills of lading and sea waybills
(iii) it is a document printed outside Australia exclusively for use, outside Australia, by or on behalf of that particular IATA body.
The following companies, registered Australian bodies and registered foreign companies are exempt from the requirement to set out the relevant information on a bill of lading or sea waybill:
(a) Austrident Shipping Agency Pty Ltd;
(b) ANL Limited;
(c) Bakke-WA Pty Limited;
(d) Blue Star Line Limited;
(e) Blue Star PACE Limited;
(f) CSR Limited;
(g) Dalgety Australia Operations Limited;
(h) Five Star Shipping & Agency Company Pty Ltd;
(i) Jebsens International (Australia) Pty Ltd;
(j) "K" Line (Australia) Pty Limited;
(k) Nedlloyd Australia Pty Ltd;
(l) OOCL (Australia) Pty Limited;
(m) Opal Maritime Agencies Pty Limited;
(n) Patrick Sleigh Shipping Agencies Pty Limited;
(o) Tasman Express Line Limited;
(p) Wilhelmsen Lines Australia Pty Ltd;
(q) Wills Shipping Pty Limited. 7004 Exemptions - quotation of ACNs and ARBNs (1)
A company is exempt from the requirement to set out the relevant information on a public document, or a negotiable instrument, of the company if:
(a) the company is registered on the Australian Business Register; and
(b) the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN; and
(c) 'Australian Business Number' or 'ABN' is displayed with the name of the company, or with 1 of the references to that name:
(i) in the case of a document or instrument in which the name appears on only 1 page - on that page; and
(ii) in the case of a document or instrument in which the name appears on 2 or more pages - on the first of those pages.
(2)
A registered Australian body or registered foreign body is exempt from the requirement to set out information mentioned in paragraph 601DE(1)(b) and subsection 601DE(2) of the Corporations Law on a public document, or a negotiable instrument, of the registered body or foreign company if:
(a) the body or company is also registered on the Australian Business Register; and
(b) the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN; and
(c) 'Australian Business Number' or 'ABN' is displayed with the name of the body or company, or with 1 of the references to that name:
(i) in the case of a document or instrument in which the name appears on only 1 page - on that page; and
(ii) in the case of a document or instrument in which the name appears on 2 or more pages - on the first of those pages.
SCHEDULE 8 - SCHEMES OF ARRANGEMENT UNDER PART 5.1 OF THE CORPORATIONS LAW
(regulation 5.1.01)
CHAPTER 5 - EXTERNAL ADMINISTRATION PART 1 - INTERPRETATION AND APPLICATION 8101In this Schedule:
(a) a creditor who is a member of the company; or
(b) a relative or spouse of a member; or
(c) a relative of the spouse of a member.
Scheme
means the proposed compromise or arrangement.
scheme creditors
means the creditors or class of creditors of a company, to whom the Scheme would apply.
scheme members
means the members or class of members of a company, to whom the Scheme would apply.
This Schedule applies to a Part 5.1 body that is not a company as if:
(a) references to a company were references to a Part 5.1 body that is not a company; and
(b) references to a director were references to an office bearer, committee member or other office holder of the body; and
(c) references to entitlements to voting shares were references to an ability to exercise a percentage of the total votes that could be exercised by members of the body. PART 2 - PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH CREDITORS OR CLASS OF CREDITORS 8201
The statement must set out:
(a) the expected dividend that would be available to scheme creditors if the company were to be wound up within 6 months after the date of the hearing of the application to the Court for an order under subsections 411(1) and (1A) of the Corporations Law; and
(b) if a composition of debts is proposed - the expected dividend that would be paid to scheme creditors if the Scheme were put into effect as proposed; and
(c) a list of the names of all known scheme creditors and the debts owed to those creditors; and
(d) if a scheme creditor is known to be a guaranteed creditor - the name of the creditor and the amount of the debt owed; and
(e) if a scheme creditor is known to be an internal creditor - the name of the creditor and the amount of the debt owed. 8202
The statement must contain a statement that an order under subsections 411(1) and (1A) of the Corporations Law is not an endorsement of, or any other expression of opinion on, the Scheme. 8203
The statement must contain or have annexed to it:
(a) a report on the affairs of the company in accordance with Form 507, showing the financial position of the company as at a day within one month of the date on which it is intended to apply to the Court for an order under subsections 411(1) and (1A) of the Corporations Law;
(b) a copy, certified by a director or by a secretary of the company to be a true copy, of all financial statements, required to be lodged with the ASC by the company, together with a copy of every document required by law to be annexed to the financial statements;
(c) if the company the subject of the Scheme is a trustee, a statement:
(i) of the number of trusts administered by the trustee; and
(ii) whether the trustee carries on any business separate from that of the trust; and
(iii) how the scheme creditors may obtain a copy of the relevant trust deed, free of charge, prior to the date of the meeting; and
(d) if the person (if any) who would be appointed to manage the Scheme proposes to charge for his or her services and for the services of his or her staff in accordance with a particular scale of charges, that scale of charges. PART 3 - PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH MEMBERS OR A CLASS OF MEMBERS 8301
The statement must set out:
(a) unless the company the subject of the Scheme is in the course of being wound up or is under official management, in relation to each director of the company:
(i) whether the director recommends the acceptance of the Scheme or recommends against acceptance and, in either case, his or her reasons for so recommending; or
(ii) if the director is not available to consider the Scheme - that the director is not so available and the cause of his or her not being available; or
(iii) in any other case - that the director does not desire to make, or does not consider himself or herself justified in making, a recommendation and, if the director so requires, his or her reasons for not wishing to do so; or
(b) if the company is in the course of being wound up or is under official management - in relation to each liquidator or each official manager:
(i) whether he or she recommends acceptance of the Scheme or recommends against acceptance and, in either case, his or her reasons for so recommending; or
8302
(ii) in any other case - that the liquidator or official manager does not wish to make a recommendation and his or her reasons for not wishing to do so.
The statement must set out:
(a) the number, description and amount of marketable securities of the company the subject of the Scheme held by or on behalf of each director of the company or, if none are held by or on behalf of a director, a statement to that effect; and
(b) for each director of the company by whom or on whose behalf shares in that company are held, whether:
(i) the director intends to vote in favour of, or against, the Scheme; or
(ii) the director has not decided whether he or she will vote in favour of, or against, the Scheme; and
(c) if the other party to the proposed reconstruction or amalgamation is, or includes, a corporation, whether any marketable securities of the corporation are held by, or on behalf of, any director of the company the subject of the Scheme and, if so, the number, description and amount of those marketable securities; and
(d) particulars of any payment or other benefit that is proposed to:
(i) be made or given to any director, secretary or executive officer of the company the subject of the Scheme as compensation for loss of, or as consideration for or in connection with his or her retirement from, office in that company or in a related body corporate; or
(ii) be made or given to any director, secretary or executive officer of any related body corporate as compensation for the loss of, or as consideration for or in connection with his or her retirement from, office in that body corporate or in the company the subject of the Scheme; and
(e) if there is any other agreement or arrangement made between a director of the company the subject of the Scheme and another person in connection with or conditional on the outcome of the Scheme - particulars of the agreement or arrangement; and
(f) if the object of the Scheme is for a corporation to acquire control of another corporation that is a company, particulars of the nature and extent of any interest of a director of that company in any contract entered into by the corporation seeking control; and
(g) if the shares of the company the subject of the Scheme are not granted official quotation on a securities exchange, all the information that the company has as to the number of shares that have been sold in the 6 months immediately before the date on which the statement is lodged, the amount of those shares and the prices at which they were sold; and
(h) whether, within the knowledge of the directors of the company the subject of the Scheme, or, if the company is in liquidation or under official management, the knowledge of the liquidator or the official manager, the financial position of the company has materially changed since the date of the last balance sheet laid before the company in general meeting or sent to shareholders in accordance with section 314 or 317 of the Corporations Law and, if so, full particulars of any change; and
(i) any other information material to the making of a decision in relation to the Scheme, being information that is within the knowledge of any director, liquidator or official manager of a company the subject of the Scheme or of a related company and that has not previously been disclosed to the Scheme members. 8303
If:
(a) the other party to the proposed reconstruction or amalgamation of the company the subject of the Scheme has a prescribed shareholding in the company; or
(b) a director of any corporation that is the other party to the proposed reconstruction or amalgamation is a director of a company the subject of the Scheme;
the statement must be accompanied by a copy of a report made by an expert who is not associated with the corporation that is the other party, stating whether or not, in his or her opinion, the proposed Scheme is in the best interest of the members of the company the subject of the Scheme and setting out his or her reasons for that opinion.
8304If the company the subject of the Scheme obtains 2 or more reports, each of which could be used for the purposes of clause 3, the statement must be accompanied by a copy of each report. 8305
If:
(a) the company the subject of the Scheme obtains a report for the purposes of clause 3; and
(b) the report contains:
(i) a forecast of the profits or profitability of the company; or
(ii) a statement that the market value of an asset or assets of the company or of a related body corporate differs from an amount at which the value of the asset or assets is shown in the books of the company or the related body corporate;
that report must not accompany the statement except with the consent in writing of ASIC and in accordance with such conditions (if any) as are stated by ASIC.
8306For the purposes of clause 3:
(a) a person has a prescribed shareholding in a company if he or she is entitled to not less than 30% of the voting shares in the company; and
(b) a person has a prescribed shareholding in a company in which the voting shares are divided into 2 or more classes of shares, if he or she is entitled to not less than 30% of the shares in one of those classes. 8307
If the consideration to be offered to scheme members consists, in whole or in part, of marketable securities issued, or to be issued, by a corporation, the statement must set out the formula to be applied to find out the number of marketable securities to be issued to each scheme member, and the basis on which that formula was developed. 8308
If marketable securities of the same class as those referred to in clause 7 are granted official quotation on a securities exchange, the statement must state the fact, specify the securities exchange concerned, and set out:
(a) the latest recorded sale price before the date on which the statement is lodged for registration; and
(b) the highest and lowest recorded sale prices during the 3 months immediately before that date and the dates of the relevant sales; and
(c) if the Scheme has been the subject of a public announcement in newspapers or by any other means before the statement has been registered by ASIC - the latest recorded sale price immediately before the public announcement. 8309 (1)
If the marketable securities referred to in clause 8 are granted official quotation on more than one securities exchange, it is sufficient compliance with paragraphs 8(a) and (c) if information on the marketable securities is given for the securities exchange at which there has been the greatest number of recorded dealings in the securities in the 3 months immediately before the date on which the statement is lodged for registration.
(2)
If the securities have not been granted official quotation on a securities exchange, the statement must set out all the information that a director, liquidator or official manager of the company the subject of the Scheme or of a related body corporate has about the number of securities that have been sold in the 3 months immediately before the date on which the explanatory statement was prepared and the price of those securities or, if that information or any part of that information cannot be ascertained, a statement to that effect.
8310
The statement must set out particulars of the intentions of the directors of the company the subject of the Scheme regarding:
(a) the continuation of the business of the company or, if the undertaking, or any part of the undertaking, of a company is to be transferred, how that undertaking or part is to be conducted in the future; and
(b) any major changes to be made to the business of the company, including any redeployment of the fixed assets of the company; and
(c) the future employment of the present employees of the company. PART 4 - PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH MEMBERS OR CLASS OF MEMBERS FOR TRANSFER TO A TRUSTEE 8401
The statement must set out:
(a) in detail, the basis on which units in the unit trust are to be issued to scheme members; and
(b) if the issue of units in the unit trust is based on the asset backing of shares held by scheme members - full valuation details of those assets. 8402
A copy of the trust deed must be annexed, or set out in a schedule, to the statement. 8403
If the effect of the proposed compromise or arrangement will be the merger of 2 companies without substantial common membership, the explanatory statement must, so far as practicable, state the matters, and be accompanied by the documents and reports, referred to in Part 3. SCHEDULE 8A - DEED OF COMPANY ARRANGEMENT - PRESCRIBED PROVISIONS
(regulation 5.3A.06)
1 Administrator deemed agent of companyIn exercising the powers conferred by this deed and carrying out the duties arising under this deed, the administrator is taken to act as agent for and on behalf of the company. 2 Powers of administrator
For the purpose only of administering this deed, the administrator has the following powers:
(a) to enter upon or take possession of the property of the company;
(b) to lease or let on hire property of the company;
(c) to grant options over property of the company on such conditions as the administrator thinks fit;
(d) to insure property of the company;
(e) to repair, renew or enlarge property of the company;
(f) to call in, collect or convert into money the property of the company;
(g) to administer the assets available for the payment of claims of creditors in accordance with the provisions of this deed;
(h) to purchase, hire, lease or otherwise acquire any property or interest in property from any person or corporation;
(i) to borrow or raise money, whether secured upon any or all of the assets of the company or unsecured, for any period on such terms as the administrator thinks fit and whether in substitution for any existing security or otherwise;
(j) to bring, prosecute and defend in the name and on behalf of the company or in the name of the administrator any actions, suits or proceedings;
(k) to refer to arbitration any question affecting the company;
(l) to make payments to any secured creditor of the company and any person who is the owner or lessor of property possessed used or occupied by the company;
(m) to convene and hold meetings of the members or creditors of the company for any purpose the administrator thinks fit;
(n) to make interim or other distributions of the proceeds of the realisation of the assets available for the payment of claims of creditors as provided in this deed;
(o) to appoint agents to do any business or to attend to any matter or affairs of the company that the administrator is unable to do, or that it is unreasonable to expect the administrator to do, in person;
(p) to engage or discharge employees on behalf of the company;
(q) to appoint a solicitor, accountant or other professionally qualified person to assist the administrator;
(r) to permit any person authorised by the administrator to operate any account in the name of the company;
(s) to sell, call in or convert into money any of the property of the company, to apply the money in accordance with this deed and otherwise effectively and properly to carry out his or her duties as administrator;
(t) to do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents, using the company's common or official seal when necessary;
(u) subject to the Bankruptcy Act 1966, to prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act;
(v) subject to the Corporations Law, to prove in the winding up of any contributory or debtor of the company or under any scheme of arrangement entered into, or deed of company arrangement executed, under the Corporations Law;
(w) to draw, accept, make or endorse any bill of exchange or promissory note in the name and on behalf of the company;
(x) to take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or the estate of a contributory or debtor, that cannot be conveniently done in the name of the company;
(y) to bring or defend an application for the winding up of the company;
(z) to carry on the business of the company on such terms and conditions and for such purposes and times and in such manner as the administrator thinks fit subject only to the limitations imposed by this deed;
(za) to sell any or all of the property of the company including the whole of the business or undertaking of the company at any time the administrator thinks fit, either by public auction or by private contract and either for a lump sum or for a sum payable by instalments or for a sum on account and to obtain a mortgage charge or encumbrance for the balance or otherwise;
(zb) to close down the whole or any part of any business of the company;
(zc) to enter into and complete any contract for the sale of shares in the company;
(zd) to compromise any debts or claims brought by or against the company on such terms as the administrator thinks fit and to take security for the discharge of any debt forming part of the property of the company;
(ze) to pay any class of creditors in full, subject to Subdivision D of Division 6 of Part 5.6 of the Corporations Law;
(zf) to do anything that is incidental to exercising a power set out in this clause;
(zg) to do anything else that is necessary or convenient for the purpose of administering this deed. 3 Termination of deed where arrangement fails
If the administrator or the committee of inspection determines that it is no longer practicable or desirable either to continue to carry on the business of the company or to implement this deed, the administrator:
(a) may cease to carry on the business of the company except so far as is necessary for the beneficial winding up of the company;
(b) must summon a meeting of creditors for the purpose of passing a resolution under section 445C(b) of the Corporations Law; and
(c) must forward to each creditor not less than 14 days prior to the meeting an up-to-date report as to the position of the company accompanied by such financial statements as the administrator thinks fit, together with a statement that he or she does not think it practicable or desirable to carry on the business of the company or to continue this deed and that this deed will be terminated if the company's creditors resolve. 4 Priority
The administrator must apply the property of the company coming under his or her control under this deed in the order of priority specified in section 556 of the Corporations Law. 5 Discharge of debts
The creditors must accept their entitlements under this deed in full satisfaction and complete discharge of all debts or claims which they have or claim to have against the company as at the day when the administration began and each of them will, if called upon to do so, execute and deliver to the company such forms of release of any such claim as the administrator requires. 6 Claims extinguished
If the administrator has paid to the creditors their full entitlements under this deed, all debts or claims, present or future, actual or contingent, due or which may become due by the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began and each claim against the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began is extinguished. 7 Bar to creditors' claims
Subject to section 444D of the Corporations Law this deed may be pleaded by the company against any creditor in bar of any debt or claim that is admissible under this deed and a creditor (whether the creditor's debt or claim is or is not admitted or established under this deed) must not, before the termination of this deed:
(a) take or concur in the taking of any step to wind up the company; or
(b) except for the purpose and to the extent provided in this deed, institute or prosecute any legal proceedings in relation to any debt incurred or alleged to have been incurred by the company before the day when the administration began; or
(c) take any further step (including any step by way of legal or equitable execution) in any proceedings pending against or in relation to the company at the day when the administration began; or
(d) exercise any right of set-off or cross-action to which the creditor would not have been entitled had the company been wound up at the day when the administration began; or
(e) commence or take any further step in any arbitration against the company or to which the company is a party. 8 Making claims
Subdivisions A, B, C and E of Division 6 of Part 5.6 of the Corporations Law apply to claims made under this deed as if the references to the liquidator were references to the administrator of this deed. 9 Meetings
Regulations 5.6.12 to 5.6.36A of the Corporations Regulations apply, with such modifications as are necessary, to meetings of creditors or of the committee of inspection held under this deed as if the references to "the liquidator", "the liquidator or provisional liquidator", "the liquidator, provisional liquidator or chairman" or "a liquidator, provisional liquidator or trustee for debenture holders", as the case may be, were references to the administrator of this deed. 10 Lodging of accounts
Sections 432 and 434 of the Corporations Law apply to the administrator as if the reference to a controller were a reference to the administrator of this deed. 11 Committee of inspection
For the purpose of advising and assisting the administrator of this deed, there must be a committee of inspection (referred to in this clause as the committee ) to which the following rules apply:
(a) the committee must consist of at least 3 and not more than 5 members;
(b) the creditors must appoint the members in a general meeting;
(c) a creditor is not entitled to have more than one representative (including the creditor himself or herself, if a natural person) on the committee;
(d) minutes of all resolutions and proceedings of each meeting of the committee must be made and duly entered in books to be provided from time to time for that purpose by the administrator under this deed;
(e) if the minutes of a meeting purport to be signed by the chairperson of the meeting at which the resolutions were passed or proceedings taken or by the chairperson of the next meeting of the committee, the minutes are prima facie evidence of the matters contained in them;
(f) unless the contrary is proved, the meeting is taken to have been duly had and convened and all resolutions passed and proceedings taken at the meeting are taken to have been duly passed and taken;
(g) a corporation (being otherwise qualified for membership of the committee) is not entitled to be a member of the committee but may appoint a person to represent it on the committee;
(h) subsection 548(3) and sections 549, 550 and 551 of the Corporations Law apply, with such modifications as are necessary, to a committee of inspection established under this deed as if the references to the liquidator were references to the administrator of this deed and the references to contributories were deleted. 12 Termination of deed where arrangement achieves purpose
If the administrator has applied all of the proceeds of the realisation of the assets available for the payment of creditors or has paid to the creditors the sum of 100 cents in the dollar or any lesser sum determined by the creditors at a general meeting, the administrator must certify to that effect in writing and must within 28 days lodge with ASIC a notice of termination of this deed in the following form:
| "X PTY LIMITED |
| I, (insert name and address) as administrator of the deed of company arrangement executed on (insert date), CERTIFY that the deed has been wholly effectuated.", |
| and the execution of the notice terminates this deed, but nothing in this clause relieves the administrator of his or her obligations under clause 10 of this deed. |
(regulation 7.1.01)
| Column 1 | Column 2 |
| Item | Authorised trustee corporations |
| 1 | ANZ Executors Nominees Limited |
| 2 | ANZ Executors Nominees (N.S.W.) Limited |
| 3 | ANZ Executors & Trustee Company Limited |
| 4 | ANZ Executors & Trustee Company (Canberra) Limited |
| 5 | ANZ Executors & Trustee Company (South Australia) Limited |
| 5A | Tower Trust Limited |
| 6 | Bagot's Executor and Trustee Company Limited |
| 7 | Bank of New South Wales Nominees Pty Limited |
| 8 | Burns Philp Trustee Company (Canberra) Limited |
| 9 | Burns Philp Trustee Company Limited |
| 9A | CHESS Depositary Nominees Pty Limited |
| 10 | Commercial Nominees Pty Limited |
| 11 | Eagle Star Trustees Limited |
| 12 | Executor Trustee Australia Limited |
| 14A | Guardian Trust Australia Limited |
| 15 | Hunter Nominees Pty Limited |
| 15AA | IOOF Australia Trustees Limited |
| 15AB | IOOF Australia Trustees (N.S.W.) Limited |
| 15A | Inteq Custodians Limited |
| 16 | National Australia Trustees Limited |
| 17 | AXA Trustees Limited |
| 18 | National Nominees Limited |
| 19 | P.T.A. Nominees Limited |
| 19A | Permanent Custodians Limited |
| 19B | Permanent Depository Limited |
| 19C | Permanent Nominees (Aust.) Limited |
| 19D | Permanent Trustee Australia Limited |
| 20 | Permanent Trustee Company Limited |
| 22 | Permanent Trustee Company (Canberra) Limited |
| 23 | Perpetual Nominees Limited |
| 24 | Perpetual Trustee Company (Canberra) Limited |
| 25 | Perpetual Trustee Company Limited |
| 26 | Perpetual Trustees and National Executors of Tasmania Limited |
| 27 | Perpetual Trustees Australia Limited |
| 28 | Perpetual Trustees (W.A.) Limited |
| 29 | Perpetual Trustees Queensland Limited |
| 30 | Public Trustee of Queensland |
| 31 | Public Trustee of South Australia |
| 32 | Public Trustee of New South Wales |
| 33 | Public Trustee of Tasmania |
| 34 | State Street Australia Limited |
| 35 | State Trust Corporation of Victoria |
| 36 | Public Trustee of Western Australia |
| 37 | Public Trustee for the Australian Capital Territory |
| 38 | Public Trustee for the Northern Territory under the Public Trustee Act 1979 of the Northern Territory |
| 40 | Sandhurst Trustees Limited |
| 41 | Sepon (Australia) Pty. Limited |
| 41A | Superannuation Nominees Pty Limited |
| 42 | TEA (1983) Limited |
| 43 | Tasmanian Permanent Executors and Equity Trustees Limited |
| 44 | The Equity Trustees Company of Tasmania Limited |
| 45 | The Equity Trustees Executors and Agency Company Limited |
| 46 | The Perpetual Executors and Trustees Association of Australia Limited |
| 47 | The Union Fidelity Trustee Company of Australia Limited |
| 47A | Trustees of Western Australia Limited |
| 48 | Union Trustee Company (Canberra) Limited |
| 49 | Westpac Custodian Nominees Limited |
| 50 | Winchcombe Carson Trustee Company (Canberra) Limited. |
(regulation 8.2.02)
| Column 1 | Column 2 |
| Item | Futures Exchange |
| 2 | Belgium Futures and Options Exchange (BELFOX) |
| 3 | Board of Trade of the City of Chicago (CBOT) |
| 4 | Board of Trade of Kansas City, Missouri, Inc. (KCBT) |
| 4A | Bolsa de Derivados do Porto (The Portuguese Futures and Options Exchange) (BDP) |
| 5 | Bolsa de Mercadorias & Futuros (Commodities & Futures Exchange, Brazil) (BM & F) |
| 5A | Cantor Financial Futures Exchange (CFFE) |
| 6 | Chicago Mercantile Exchange (CME) |
| 7 | Coffee, Sugar and Cocoa Exchange, Inc. (CSCE) |
| 8 | Commodity Exchange Inc. (COMEX) |
| 9 | Copenhagen Stock Exchange (including FUTOP Clearing Centre (FUTOP)) |
| 10 | Eurex Deutschland |
| 10A | Eurex Zurich |
| 11 | European Options Exchange (EOE) |
| 12 | Financial Futures Exchange Barcelona (MEFF-RF) |
| 13 | Financial Futures Exchange Madrid (MEFF-RV) |
| 14 | Financiele Termijnmarkt Amsterdam N.V. (Financial Futures Market Amsterdam) (FTA) |
| 14A | Helsinki Securities and Derivatives Exchange, Clearing House Limited |
| 15 | Hong Kong Futures Exchange Ltd (HKFE) |
| 16 | The International Petroleum Exchange of London Ltd. (IPE) |
| 17 | Italian Futures Exchange (MIF) |
| 18 | Italian Stock Exchange |
| 18AA | Korea Futures Exchange (KOFEX) |
| 18A | Korea Stock Exchange (KSE) |
| 18B | Kuala Lumpur Commodity Exchange (KLCE) |
| 18C | Kuala Lumpur Options and Financial Futures Exchange (KLOFFE) |
| 19 | The London International Financial Futures Exchange Ltd. (LIFFE) |
| 20 | The London Securities and Derivatives Exchange Limited (OMLX) |
| 20A | Malaysia Monetary Exchange (MME) |
| 21 | Marché à Terme International de France (The French International Futures Market) (MATIF) |
| 22 | Marché des Options Négociables de Paris (Paris Traded Options Market) (MONEP) |
| 23 | Mercados de Futuros Financieros, SA (Spanish Financial Futures Market) (MEFFSA) |
| 24 | The Metal Market and Exchange Company Ltd. (London Metal Exchange) (LME) |
| 25 | Mid America Commodity Exchange (MIDAM) |
| 26 | Minneapolis Grain Exchange (MGE) |
| 27 | The Montreal Exchange (ME) |
| 28 | New York Cotton Exchange (NCE) |
| 29 | New York Futures Exchange, Inc. (NYFE) |
| 30 | New York Mercantile Exchange (NYMEX) |
| 31 | New Zealand Futures & Options Exchange Ltd. (NZFOE) |
| 32 | OM Stockholm AB (OMS) |
| 33 | Osaka Securities Exchange (OSE) |
| 34 | Oslo Stock Exchange (OSLO) |
| 35 | Philadelphia Stock Exchange (PHLX) |
| 36 | Philadelphia Board of Trade (PBOT) |
| 37 | Singapore Commodity Exchange Limited (SICOM) |
| 38 | The Singapore International Monetary Exchange Limited (SIMEX) |
| 39 | South African Futures Exchange (SAFEX) |
| 41 | Tokyo Commodity Exchange for Industry (TOCOM) |
| 42 | Tokyo Grain Exchange (TGE) |
| 43 | Tokyo International Futures Exchange (TIFFE) |
| 44 | Tokyo Stock Exchange (TSE) |
| 45 | The Toronto Futures Exchange (TFE) |
| 46 | The Winnipeg Commodity Exchange (WCE) |
| 47 | Wiener Börse AG |
(regulation 12.7.01)
1.The following provisions of Book 3 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) the modification of the accounting standard known as Accounting Standard AASB 1032 (published in the Gazette on 12 December 1996) by Prudential Standard 3.3.1, except the definition of deposits added to the accounting standard by the Prudential Standard;
(b) Prudential Standard 3.5.4;
(c) Prudential Standard 3.5.5;
(d) Prudential Standard 3.7.1;
(e) Prudential Standard 3.7.4;
(f) Prudential Standard 3.7.5. 2.
The following provisions of Book 4 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) the modification of the accounting standard known Accounting Standard AASB 1032 (published in the Gazette on 12 December 1996) by Prudential Standard 4.3.1, except the definition of deposits added to the accounting standard by the Prudential Standard;
(b) Prudential Standard 4.7.1;
(c) Prudential Standard 4.7.4;
(d) Prudential Standard 4.7.5. 3.
The following provisions of Book 5 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) Prudential Standard 5.5.1;
(b) Prudential Standard 5.5.3;
(c) Prudential Standard 5.5.4. 4.
The following provisions of Book 6 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:
(a) Prudential Standard 6.7.2;
(b) Prudential Standard 6.7.4;
(c) Prudential Standard 6.7.5;
(d) Prudential Standard 6.8.3.