THE CORPORATIONS LAW

CHAPTER 2K - CHARGES

PART 2K.2 - REGISTRATION

SECTION 263   LODGMENT OF NOTICE OF CHARGE AND COPY OF INSTRUMENT  

263(1)  [Lodgment within 45 days]  

Where a company creates a charge, the company shall ensure that there is lodged, within 45 days after the creation of the charge:

(a)  a notice in the prescribed form setting out the following particulars:

(i) the name of the company and the date of the creation of the charge;

(ii) whether the charge is a fixed charge, a floating charge or both a fixed and floating charge;

(iii) if the charge is a floating charge - whether there is any provision in the resolution or instrument creating or evidencing the charge that prohibits or restricts the creation of subsequent charges;

(iv) a short description of the liability (whether present or prospective) secured by the charge;

(v) a short description of the property charged;

(vi) whether the charge is created or evidenced by a resolution, by an instrument or by a deposit or other conduct;

(vii) if the charge is constituted by the issue of a debenture or debentures - the name of the trustee (if any) for debenture holders;

(viii) if the charge is not constituted by the issue of a debenture or debentures or there is no trustee for debenture holders - the name of the chargee;

(ix) such other information as is prescribed;

(b)  if, pursuant to a resolution or resolutions passed by the company, the company issues a series of debentures constituting a charge to the benefit of which all the holders of debentures in the series are entitled in equal priority, and the charge is evidenced only by the resolution or resolutions and the debentures - a copy of the resolution or of each of the resolutions verified by a statement in writing to be a true copy, and a copy of the first debenture issued in the series and a statement in writing verifying the execution of that first debenture; and

(c)  if, in a case to which paragraph (b) does not apply, the charge was created or evidenced by an instrument or instruments:

(i) the instrument or each of the instruments; or

(ii) a copy of the instrument or of each of the instruments verified by a statement in writing to be a true copy, and a statement in writing verifying the execution of the instrument or of each of the instruments.

263(2)  [Series of debentures]  

In a case to which paragraph (1)(b) applies:

(a)  the charge shall, for the purposes of subsection (1), be deemed to be created when the first debenture in the series of debentures is issued; and

(b)  if, after the issue of the first debenture in the series, the company passes a further resolution authorising the issue of debentures in the series, the company shall ensure that a copy of that resolution, verified by a statement in writing to be a true copy of that resolution, is lodged within 45 days after the passing of that resolution.

263(3)  [Application for registration]  

A body that applies for registration as a company under Part 5B.1, or for registration under Part 5B.2, shall lodge with the application for registration the documents specified in subsection (4) in relation to any charge on property of the body that would be registrable under this Part if the body were already registered under Part 5B.1, or Part 5B.2, as the case may be.

263(4)  [Documents required to be lodged pursuant to Part 5B.1 or 5B.2 applications]  

The documents required to be lodged under subsection (3) in relation to a charge on property of a body are the following documents:

(a)  a notice in the prescribed form:

(i) setting out the name of the body;

(ii) if the charge was created by the body - specifying the date of the creation of the charge;

(iii) if the charge was a charge existing on property acquired by the body - setting out the date on which the property was so acquired; and

(iv) otherwise complying with the requirements of paragraph (1)(a);

(b)  if the charge was created or evidenced as mentioned in paragraph (1)(b):

(i) in the case of a charge created by the body - a copy of the resolution or of each of the resolutions referred to in that paragraph verified by a statement in writing to be a true copy and a copy of the first debenture issued in the series referred to in that paragraph and a statement in writing verifying the execution of that first debenture; or

(ii) in the case of a charge that existed on property acquired by the body - the copies referred to in subparagraph (i) verified by statements in writing to be true copies;

(c)  if the charge was created or evidenced by an instrument or instruments (otherwise than as mentioned in paragraph (1)(b)):

(i) in the case of a charge created by the body:

(A) the instrument or each of the instruments; or

(B) a copy of the instrument or of each of the instruments verified by a statement in writing to be a true copy, and a statement in writing verifying the execution of the instrument or of each of the instruments; or

(ii) in the case of a charge that existed on property acquired by the body - a copy of the instrument or of each of the instruments verified by a statement in writing to be a true copy;

(d)  if the charge was created or evidenced as mentioned in paragraph (1)(b) and, after the issue of the first debenture in the series, the body passed a further resolution or resolutions authorising the issue of debentures in the series - a copy of that resolution or of each of those resolutions verified by a statement in writing to be a true copy.

263(5)  [Lodgment of notice]  

A notice in relation to a charge, being a charge in relation to which paragraph (1)(b) or (c) or (4)(b) or (c) applies, shall not be taken to have been lodged under subsection (1) or (3) unless the notice is accompanied by the documents specified in that paragraph.

263(6)  [Series of debentures - priority]  

Where a notice with respect to an instrument creating a charge has been lodged under subsection (1) or (3), being a charge in respect of an issue of several debentures the holders of which are entitled under the instrument in equal priority to the benefit of the charge, sections 279 to 282 (inclusive) have effect as if any charges constituted by those debentures were registered at the time when the charge to which the notice relates was registered.

263(7)  [Details of payment or discount]  

Where a payment or discount has been made or allowed, either directly or indirectly, by a company or registrable body to a person in consideration of the person's subscribing or agreeing to subscribe, whether absolutely or conditionally, for debentures, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for debentures, the notice required to be lodged under subsection (1) or (3) shall include particulars as to the amount or rate per centum of the payment or discount.

263(8)  [Issue as security for company debt]  

Where a company or registrable body issues debentures as security for a debt of the company or registrable body, the company or registrable body shall not thereby be regarded, for the purposes of subsection (7), as having allowed a discount in respect of the debentures.