Corporations Act 2001
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Hide history noteCCH note - modifying legislative instruments: The application of Pt 8B.3 is affected by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (CCIV Auditors) Instrument 2024/668.
For other legislative instruments or class orders before 1 January 2022 that affect the application of Pt 8B.3, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
CCH Note: Division 1 is modified by the ASIC Corporations (Chapter 5C - Miscellaneous Provisions) Instrument 2017/125.
CCH Note: Subdivision B is modified by the ASIC Corporations (Chapter 5C - Miscellaneous Provisions) Instrument 2017/125.
CCH Note: Section 1223D is modified by the ASIC Corporations (Chapter 5C - Miscellaneous Provisions) Instrument 2017/125 and the ASIC Corporations (Changing Scheme Constitutions) Instrument 2019/700.
A CCIV adopts on registration the constitution lodged with the application to register the CCIV.
1223D(2)
The constitution of a CCIV may be modified, or repealed and replaced with a new constitution: (a) if the CCIV is a retail CCIV:
(i) by special resolution of the members of the CCIV; or
(ii) by the corporate director, if the corporate director reasonably considers the change will not adversely affect members ' rights; or
(b) if the CCIV is a wholesale CCIV - by complying with the requirements set out in the constitution for the modification or repeal.
(iii) by special resolution of the members of a sub-fund of the CCIV, if the corporate director reasonably considers the change will not adversely affect the rights of any member of any other sub-fund of the CCIV; or
1223D(3)
If the constitution of a CCIV is modified, or repealed and replaced with a new constitution, the CCIV must lodge with ASIC: (a) a copy of the modification, or the new constitution; and (b) if the corporate director of the CCIV determines a later date mentioned in paragraph (5)(b) or (c) for the modification or replacement to take effect - notice of the later date;
within 14 days after the modification or replacement.
Note: The constitution may be modified or repealed by Court order: see section 233 .
1223D(4)
An offence based on subsection (3) is an offence of strict liability.
1223D(5)
If section 137 does not set the date on which the modification or repeal and replacement of a CCIV ' s constitution takes effect, it takes effect on the latest of the following: (a) the date on which the modification or the new constitution is lodged with ASIC; (b) if the CCIV is a retail CCIV, and the corporate director determines a later date for the modification or replacement to take effect - that later date; (c) if the CCIV is a wholesale CCIV, and a later date is determined in accordance with any requirements in the constitution of the CCIV - that later date.
1223D(6)
Section 136 does not apply to a CCIV.
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