Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.6 - EXTERNAL ADMINISTRATION AND DEREGISTRATION  

Division 9 - Deregistration and transfer of registration  

Subdivision A - Deregistration  

SECTION 1239A   DEREGISTRATION OF A SUB-FUND - ASIC INITIATED  

Circumstances in which ASIC may deregister

1239A(1)    
ASIC may decide to deregister a sub-fund of a CCIV if:

(a)    the CCIV has not lodged any documents that relate to the sub-fund under this Act in the last 18 months; and

(b)    ASIC has no reason to believe that the part of the business of the CCIV that is registered as the sub-fund is being carried on.

1239A(2)    
ASIC may also decide to deregister a sub-fund of a CCIV if:

(a)    the CCIV ' s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; and

(b)    the review fee is to any extent a liability of the sub-fund.

1239A(3)    
ASIC may also decide to deregister a sub-fund of a CCIV if the sub-fund is being wound up and ASIC has reason to believe that:

(a)    the liquidator of the sub-fund is no longer acting; or

(b)    the sub-fund ' s affairs have been fully wound up and a return that the liquidator should have lodged is at least 6 months late; or

(c)    the sub-fund ' s affairs have been fully wound up under Part 5.4 (as modified by this Part) and the assets of the sub-fund are not enough to cover the costs of obtaining a Court order for the sub-fund ' s deregistration.

1239A(4)    
However, ASIC must not decide, under this section, to deregister a sub-fund that is an Australian passport fund if ASIC is of the opinion that to do so would not be in the interests of:

(a)    members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

(b)    members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

1239A(5)    
For the purposes of subsection (4) , ignore any member of the fund that:

(a)    is, or has at any time been, the operator of the fund; or

(b)    is a related party of an entity that is, or has at any time been, the operator of the fund.

Note: See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.

Show cause notice

1239A(6)    
Before deciding to deregister a sub-fund, ASIC must give the CCIV a written notice that requires the CCIV to show cause, at a hearing before a specified person, why the sub-fund should not be deregistered.

1239A(7)    
The notice must specify:

(a)    the grounds on which it is proposed to deregister the sub-fund; and

(b)    a reasonable time and place at which the hearing is to be held.

However, if the CCIV consents, the person conducting the hearing may fix a different time or place.

1239A(8)    
The person conducting the hearing must:

(a)    give the CCIV an opportunity to be heard at the hearing; and

(b)    give ASIC:

(i) a report about the hearing; and

(ii) a recommendation about the grounds in the notice on which it is proposed to deregister the sub-fund.

1239A(9)    
After considering the report and recommendation, ASIC may decide to:

(a)    take no further action in relation to the matter and give written advice of that decision to the CCIV; or

(b)    deregister the sub-fund.

1239A(10)    
Neither of the following is a legislative instrument:

(a)    a notice under subsection (6) ;

(b)    a report under subsection (8) (if it is in writing).