Federal Register of Legislation - Australian Government

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ASIC Class Order [CO 05/638]

Authoritative Version
CO 05/638 Orders/ASIC Class Orders as made
ASIC Class Order [CO 05/638] allows certain large proprietary companies to be treated as "grandfathered". These companies are not required to lodge a financial report, directors' report and auditors' report provided that the financial report is audited. Large proprietary companies to which the order relates may be grandfathered despite having: (i) a foreign company shareholder (provided the company is not controlled by a foreign company); (ii) an authorised trustee company as a non-beneficial member; (iii) taken advantage of ASC relief to complete their financial reporting obligations for a year ending in June or July 1996 one month late; or (iv) taken advantage of ASC relief to complete their financial reporting obligations for a year commencing from 1 January 2005 to 31 December 2005 inclusive one month late.
Administered by: Treasury
Registered 13 Jul 2005
Tabling HistoryDate
Tabled HR09-Aug-2005
Tabled Senate09-Aug-2005
Date of repeal 01 Oct 2015
Repealed by ASIC Corporations (Amendment and Repeal) Instrument 2015/843

Australian Securities and Investments Commission
Corporations Act 2001 — Subsection 341(1) — Order and revocation

Enabling provision

1.         The Australian Securities and Investments Commission makes this instrument under subsection 341(1) of the Corporations Act 2001 (the Act).

Title

2.         This instrument is ASIC Class Order [CO 05/638].

Commencement

3.         This instrument commences on the date it is registered under the Legislative Instruments Act 2003.

Note:   An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, s 4 (definition of register). The FRLI may be accessed at http://www.frli.gov.au/.

Exemption from lodging financial reports etc

4.         A large proprietary company does not have to comply with subsection 319(1) of the Act for a financial year where the company:

(a)        was an exempt proprietary company within the meaning of the Corporations Law (the Law) on 30 June 1994;

(b)        has met the definition of exempt proprietary company (as in force under the Law at 30 June 1994) at all times from 30 June 1994 until the deadline for reporting to members for the relevant financial year, or would have met that definition at those times if:

(i)         declarations 95/0678, 95/0679, 95/0680 and 95/0681 by ASIC under subsection 349(7) of the Law (as in force at the time) had continued in effect from 31 December 1995; and

(ii)        that definition included proprietary companies which meet both of the following requirements:

(A)       no share in the company is owned by a non-exempt person (as defined in section 69 of the Law as in force at 30 June 1994); and

(B)       no member of the company is a non-exempt person, other than an authorised trustee corporation as trustee, executor or administrator of the estate of a dead or mentally or physically infirm person who was registered as the holder of one or more shares in the company and in whose estate no non-exempt person has a direct or indirect interest;

(c)        was a large proprietary company at the end of the first financial year after 9 December 1995;

(d)        is a company in respect of which financial statements and financial reports for the financial year ending during 1993 and each later financial year have been audited before the deadline for reporting to members for that year, except for:

(i)         a financial year ending in June or July 1996 if, for that financial year:

(A)       the financial statements were audited within one month after the deadline; and

(B)       the requirements in Parts 3.6 and 3.7 of the Law (as in force at the time) relating to the preparation, audit, lodgment or sending to members of the financial statements, directors’ report and auditor’s report were complied with within one month after the relevant deadlines or times specified in the Law; and

(C)       the directors’ report disclosed the nature and effect of the relief permitting this deferred compliance; and

(ii)        a financial year commencing from 1 January 2005 to 31 December 2005 (both inclusive) if, for that financial year:

(A)       the financial report was audited and sent to members within one month after the deadline for reporting to members; and

(B)       the directors’ report disclosed the nature and effect of the relief permitting this deferred compliance; 

(e)        if the company is covered by paragraph (b) because of subparagraph (b)(i):

(i)         lodged with ASIC, within four months after the end of the first financial year of the company that ended after 24 April 1997, a notice that the company wanted ASIC Class Order [CO 98/99] to apply to the company; and

(ii)        has not been controlled by a foreign company at any time after 9 December 1995 and before the deadline for reporting to members for the relevant financial year;

(f)         if the company is covered by paragraph (b) other than because of subparagraph (b)(i), within 4 months after the end of the first financial year of the company that ended after 9 December 1995 (or within such extended period as approved by ASIC), lodged with ASIC a notice that the company wanted subsection 317B(3) of the Law (as in force at that time) to apply to the company; and

(g)                has not been:

            (i)         a disclosing entity;

(ii)        a borrowing corporation or guarantor body of a borrowing corporation (within the meaning of the Law before 13 March 2000); or

(iii)       a borrower or guarantor,

at any time after 9 December 1995 and before the deadline for reporting to members for the relevant financial year.

Revocation

5.         ASIC Class Order [CO 98/99] is revoked.

 

Dated this 7th day of July 2005

 

 

Signed by Brendan Byrne
as a delegate of the Australian Securities and Investments Commission