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ASIC Class Order [CO 02/968]

Authoritative Version
CO 02/968 Orders/ASIC Class Orders as made
This Class Order gives interim relief to certain companies in external administration from the requirement to comply with certain financial reporting obligations in Part 2M.3 of the Corporations Act 2001. The relief is subject to conditions.
Administered by: Treasury
General Comments: This instrument was published in the Australian Securities and Investments Commission Gazette on 24 September 2002.
Registered 02 Mar 2007
Gazetted 24 Sep 2002
Date of repeal 02 Mar 2016
Repealed by ASIC Corporations (Amendment and Repeal) Instrument 2016/66
Table of contents.

Australian Securities and Investments Commission

Corporations Act 2001  -  Subsection 341(1)  ‑  Class Order

 

 

Under subsection 341(1) of the Corporations Act 2001 (the “Act”) the Australian Securities and Investments Commission (“ASIC”) hereby makes an order relieving each company in the class of companies specified in Schedule A (each an “Entity”) from the requirement to comply with the provisions specified in Schedule B that are applicable in relation to a financial year or half-year specified in Schedule C (each, respectively, a “Relevant Financial Year” or “Relevant Half-Year”) on the conditions specified in Schedule D and for so long as those conditions are met.

 

 

Schedule A

 

A company:

 

(a)               in respect of which an administrator has been appointed under section 436A, 436B or 436C; or

 

(b)               which has executed a deed of company arrangement which provides for the orderly disposal of substantially all of the property of the company; or

 

(c)        in respect of which a winding up has begun or commenced; or

 

(d)       in respect of which a liquidator has been appointed provisionally under subsection 472(2); or

 

(e)        where a controller has been appointed in relation to substantially all of the property of the company.

 

Note:      A controller in relation to property of a company includes a receiver, or receiver and manager, of that property: see section 9.

 

 

Schedule B

 

1.         Subsection 292(1) (the requirements to prepare a financial report and directors’ report);

 

2.         Subsection 301(1) (the requirement to have the financial report audited);

 

3.         Section 302 (the requirement to prepare and lodge a financial report and directors’ report for a half-year);

 

4.         Subsections 314(1), 315(1) and 315(4) and section 316 (the requirements concerning distribution of the financial report, directors’ report and auditor’s report and any concise financial report (“the reports”) to members);

 

5.         Subsection 317(1) (the requirement for a public company to lay reports before an annual general meeting);

 

6.         Subsection 319(1) (the requirement to lodge reports for a financial year with ASIC);

 

7.         Subsection 320(1) (the requirement to lodge half-year reports with ASIC).

 

 

Schedule C

 

1.         A financial year of an Entity:

 

(a)               which ends no later than 31 May 2003; and

 

(b)               in respect of which the Entity was not required to lodge a report with ASIC under subsection 319(1) by a date before the date of this instrument.

 

2.                  A half-year of an Entity:

 

(a)        which ends no later than 31 May 2003; and

 

(b)        in respect of which the Entity was not required to lodge a report with ASIC under subsection 320(1) by a date before the date of this instrument.

 

 

Schedule D

 

1.                  The Entity and its directors and auditor must comply with Part 2M.3 in relation to a Relevant Financial Year, as if sections 315 and 319(3) were varied so that a person required under those sections to perform an act is required to perform that act by the earlier of:

 

(a)        (i)        in the case of an Entity that is a disclosing entity – 3 months; or

 

(ii)        in any other case ‑ 4 months,

 

after the date of a Termination Event in relation to the Entity; or

 

(b)       1 September 2003.

 

2.                  The Entity and its directors and auditor must comply with Part 2M.3 in relation to a Relevant Half-Year as if section 320 were varied so that a person required under that section to perform an act is required to perform that act by the earlier of:

 

(a)        75 days after the date of a Termination Event in relation to the Entity; or

 

(b)       1 September 2003.

 

3.                  In the case of:

 

(a)               an Entity in the class of companies referred to in paragraphs (a) or (b) of Schedule A - the administrator;

 

(b)               an Entity in the class of companies referred to in paragraph (e) of Schedule A, in respect of which a receiver and manager or managing controller has been appointed ‑ the receiver and manager or managing controller, as the case may be;

 

(c)               an Entity in the class of companies referred to in paragraph (e) of Schedule A, in respect of which a controller who is not a receiver and manager or managing controller has been appointed ‑ the directors,

 

must:

 

(d)        as soon as practicable and in any event by:

 

(i)                 in the case of a Relevant Financial Year ‑ the date by which the Entity would, but for this instrument, be required to lodge a report with ASIC under subsection 319(1); and

 

(ii)                in the case of a Relevant Half Year ‑ the date by which the Entity would, but for this instrument, be required to lodge a report with ASIC under subsection 320(1),

 

notify ASIC in writing that the Entity is relying upon this instrument; and

 

(e)        in the case of a Relevant Financial Year, as soon as practicable, provide a notice to the members of the Entity (and provide a copy to ASIC) that:

 

(i)         states that the Entity is relying on this instrument and briefly explains the effect of this instrument; and

 

(ii)        to the extent practicable, sets out the following information:

 

(A)       whether, in the opinion of the person or persons providing the notice, the members have any on-going economic interest in the Entity; and

 

(B)       an estimate of the extent of the on-going economic interest referred to in subparagraph (A).

 

 

Interpretation

 

In this instrument:

 

1.         a person is taken to have an “on-going economic interest” in an Entity to which an administrator or controller has been appointed, if the administrator or controller, as the case may be, believes on reasonable grounds that the Entity will not begin or commence winding up as a consequence of the effect of any or all of:

 

(a)        the appointment of the administrator or controller, or the performance of the administrator’s or controller’s functions and duties; and

 

(b)        other events or actions performed by members or creditors of the Entity or any other person;

 

and the extent of a member’s on-going economic interest is the monetary value of the person’s shares in the Entity;

 

2.         “substantially all of the property of the company” when used in reference to a company to which an administrator or controller has been appointed, means assets of the company with a carrying value of at least 90% of the total carrying value of all of the gross assets of the company (as determined by reference to the carrying values of the company’s assets immediately prior to the appointment of the administrator or controller, as the case may be, to the company);

 

3.         “Termination Event” in relation to an Entity means any of the following events:

 

(a)        in the case of an Entity in the class of companies referred to in paragraph (a) of Schedule A – the end of the administration of the Entity under section 435C; or

 

(b)        in the case of an Entity in the class of companies referred to in paragraph (b) of Schedule A – the termination of the deed of company arrangement executed by the Entity; or

 

(c)        in the case of an Entity in the class of companies referred to in paragraph (c) of Schedule A – the taking effect of an order by the Court staying the winding up, or terminating the winding up, of the Entity; or

 

(d)        in the case of an Entity in the class of companies referred to in paragraph (d) of Schedule A – the provisional liquidator is removed or released and no new provisional liquidator is appointed to the company within 7 days,

 

(e)        in the case of an Entity in the class of companies referred to in paragraph (e) of Schedule A – the controller’s ceases to be a controller of substantially all the property of the Entity and no new controller is appointed to the property within 7 days,

 

unless the event occurs before 31 May 2003 and immediately after its occurrence, the Entity falls within a different class of companies specified in Schedule A; and

 

4.         references to statutory provisions are to provisions of the Act.

 

 

Dated this 5th day of September 2002

 

 

 

 

 

Signed by Brendan Byrne

as a delegate of the Australian Securities and Investments Commission