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ASIC Class Order [CO 02/0245]

Authoritative Version
CO 02/245 Orders/ASIC Class Orders as made
This Class Order gives relief to certain serviced strata schemes that were "closed" on 6 October 1998. This Class Order revokes [CO 99/461].
Administered by: Treasury
General Comments: This Class Order was published in the Australian Securities and Investments Commission Gazette on 12 March 2002.
Registered 19 Jan 2007
Gazetted 12 Mar 2002
Date of repeal 28 Sep 2016
Repealed by ASIC Corporations (Repeal) Instrument 2016/898

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs 601QA(1)(a), 911A(2)(l), 992B(1)(a) and 1020F(1)(a) — Revocation and Exemption
 

1.         Under paragraph 601QA(1)(a) of the Corporations Act 2001 (the “Act”) the Australian Securities and Investments Commission (“ASIC”) hereby revokes Class Order [99/461].

 

2.         Under paragraph 601QA(1)(a) of the Act ASIC hereby exempts the persons referred to in Schedule A in the case referred to in Schedule B on the conditions set out in Schedule C from compliance with section 601ED of the Act and subsection 1457(1) of Corporations Law (as continued in force by section 1408 of the Act).

 

3.         Under paragraphs 911A(2)(l), 992B(1)(a) and 1020F(1)(a) of the Act ASIC hereby exempts, the persons referred to in Schedule D in the case referred to in Schedule E on the conditions set out in Schedule F from:

 

(a)        sections 992A and 992AA and Part 7.9 of the Act;

 

(b)        the requirement to hold an Australian financial services licence for the provision of financial services by that person in relation to interests in a managed investment scheme of the kind referred to in Schedule E.

 

4.         Under paragraph 911A(2)(l) and 1020F(1)(a) of the Act ASIC hereby exempts a person (other than a person in Schedule D) from:

 

(a)        the requirement to hold an Australian financial services licence for the provision of financial services by the person in relation to; and

 

(b)        Part 7.9 of the Act in relation to a recommendation to acquire and an offer to arrange the issue of,

 

an interest in a scheme that appears to be of the kind and offered on the basis referred to in Schedule E, except where the person is aware, or ought reasonably to be aware, that those interests are not of that kind or offered on that basis.

 

5.         Under paragraph 992B(1)(a) of the Act ASIC hereby exempts each member of a scheme referred to in Schedule B (other than a person referred to in Schedule A) from sections 992A and 992AA of the Act in relation to interests in the scheme while the scheme is not registered.

 

SCHEDULE A

 

Any person that operates a managed investment scheme described in Schedule B (“Operator”).

 


SCHEDULE B

 

Operating a managed investment scheme (“Scheme”):

 

(a)        that involves registered proprietors of strata title units, community title interests or similar interests in real property (“Strata Units”) making their Strata Units available for use as part of a serviced apartment, hotel or resort complex;

 

(b)        where, since 6 October 1998, interests in the Scheme (“Interests”) have only been offered for issue on the following basis:

 

(i)         an offer specified in Schedule E provided that, in any 12 month period after 6 October 1998, no more than 20 persons become new members of the Scheme as a result of an offer of this kind; or

 

(ii)        an offer or invitation made before the commencement of Schedule 1 to the Corporate Law Economic Reform Program Act 1999 which was an excluded offer or invitation within the definition in section 9 of the Corporations Law as in force at that time; or

 

(iii)       an offer to which Class Order [98/1931], Class Order [00/191] or Class Order [02/185] applies; or

 

(iv)       an offer made after the commencement of Schedule 1 to the Corporate Law Economic Reform Program Act 1999 and before the Effective Date which, if interests in the Scheme were securities to which Chapter 6D applied, would not need disclosure to investors because of a provision of section 708 of the Act other than subsection 708(1); or

 

(v)        an offer which is made after the Effective Date which does not need a Product Disclosure Statement (otherwise than because of this instrument);

 

(c)        which has not at any time been a registered scheme; and

 

(d)       in relation to which an approved deed under Division 5 of Part 7.12 of the Corporations Law as it stood prior to 1 July 1998 has not at any time been in force.

 

SCHEDULE C

 

(a)        The Operator must not intentionally or recklessly fail to comply with its obligations to any member of the Scheme in relation to an Interest to the material detriment of the member.

 


(b)        The Operator must notify ASIC in writing immediately if:

 

(i)         it is or becomes aware that there is reason to suspect that it or any person that promoted the Scheme has:

 

(A)       engaged in misleading or deceptive conduct or conduct that is likely to mislead or deceive in relation to the Interests; or

 

(B)       intentionally or recklessly failed to comply with its obligations to any member of the Scheme to the material detriment of the member,

 

whether that conduct or non-compliance occurred before, or occurs after, the date of this instrument; and

 

(ii)        ASIC has not previously been notified of the conduct or non-compliance.

 

SCHEDULE D

 

Any person (“Issuer”) that makes an offer of Interests for issue as specified in Schedule E.

 

SCHEDULE E

 

Offers and issues of, and recommendations to acquire Interests that relate only to the making available of Strata Units that were owned on 6 October 1998 by a person who met each of these tests as at the date of the offer:

 

(a)        the person was not involved in, and had not prior to the date of the offer been involved in, the development of the Strata Units; and

 

(b)        the person was not involved in, and had not prior to the date of the offer been involved in, the operation of the Scheme; and

 

(c)        either:

 

(i)         the person was not an associate of a person mentioned in paragraph (a) or (b); or

 

(ii)        the person was such an associate, but the Operator, after making reasonable inquiries, had no reason to suspect that fact at the time that the person became a member of the Scheme.

 

SCHEDULE F

 

(a)        Each Issuer must not intentionally or recklessly fail to comply with its obligations to any member of the Scheme in relation to an Interest to the material detriment of the member.

 


(b)        Each Issuer must notify ASIC in writing immediately if it is or becomes aware that there is reason to suspect that it or any person that promoted the Scheme has:

 

(i)         engaged in misleading or deceptive conduct or conduct that is likely to mislead or deceive in relation to the Interests; or

 

(ii)        intentionally or recklessly failed to comply with its obligations to any member of the Scheme to the material detriment of the member,

 

whether that conduct or non-compliance occurred before, or occurs after, the date of this instrument.

 

(c)        Each Issuer must ensure that no more than 20 persons become new members of the Scheme in any 12 months because of an offer by that Issuer other than:

 

(i)         in the case of an offer made prior to the Effective Date and assuming an Interest in the Scheme was a security to which Chapter 6D applies at the time of the offer - an offer which would not need disclosure because of a provision of section 708 of the Act other than subsection 708(1); or

 

(ii)        in the case of an offer made on or after the Effective Date -  which does not need a Product Disclosure Statement (otherwise than because of this instrument); or

 

(iii)       an offer to which Class Order [02/185] applies.

 

Interpretation

 

In this instrument “Effective Date” means the date on which the new product disclosure provisions (as defined in subsection 1438(2) of the Act) first apply to Interests in the Scheme.

 

Commencement

This instrument takes effect on the commencement of Schedule 1 to the Financial Services Reform Act 2001.

 

 

Dated this 2nd day of March 2002

 

 

 

 

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