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Corporations Regulations 2001

Authoritative Version
  • - F2011C00316
  • In force - Superseded Version
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SR 2001 No. 193 Regulations as amended, taking into account amendments up to Corporations Amendment Regulations 2011 (No. 1)
Principal Regulations. These Regulations repeal the Corporations Regulations 1990 and the Partnerships and Associations Application Order 1999 (No. 1)
Administered by: Treasury
General Comments: This compilation is affected by a retrospective amendment, please see Corporations Amendment Regulation 2012 (No. 2) (SLI 2012 No. 43) (F2012L00829) for details.
Registered 01 Jun 2011
Start Date 26 May 2011
End Date 30 Jun 2011
Table of contents.
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Collapse Volume 1Volume 1
Collapse Chapter 1 Introductory 
Chapter 1 Introductory
Collapse Part 1.0 Miscellaneous 
Part 1.0 Miscellaneous
1.0.01 Name of Regulations [see Note 1]
1.0.01A Commencement [see Note 1]
1.0.02 Interpretation
1.0.02A Prescribed financial market (Act s 9)
1.0.03 Prescribed forms (Act s 350)
1.0.03A Documents that must be in the prescribed form
1.0.03B Documents that must be lodged with ASIC
1.0.03C Documents that must be in a form approved by ASIC
1.0.04 Directions and instructions in forms
1.0.05 Documents and information required by forms
1.0.05A Lodgment with ASIC
1.0.06 Annexures accompanying forms
1.0.07 General requirements for documents
1.0.08 Information to accompany financial documents lodged for financial years
1.0.09 Information to accompany financial documents etc lodged for half-years
1.0.10 Continuous disclosure notices
1.0.11 Certain documents to be signed by personal representatives etc
1.0.12 Form of notice of resolution
1.0.13 Time for lodging documents
1.0.14 Address of registered office or place of business
1.0.15 Affidavits and statements in writing
1.0.16 Certification and verification of certain documents
1.0.17 Documents signed or sworn in accordance with the rules
1.0.18 Prescribed provisions (Act s 53)
1.0.20 Copies of orders to be lodged
1.0.21 Identification of lodged orders
1.0.22 Territorial application of Act
Expand Part 1.1 Prescribed amounts 
Part 1.1 Prescribed amounts
Expand Part 1.2A Disclosing entities 
Part 1.2A Disclosing entities
Expand Chapter 2A Registration of companies 
Chapter 2A Registration of companies
Expand Chapter 2B Basic features of a company 
Chapter 2B Basic features of a company
Expand Chapter 2C Registers 
Chapter 2C Registers
Expand Chapter 2D Officers and employees 
Chapter 2D Officers and employees
Expand Chapter 2E Related party transactions 
Chapter 2E Related party transactions
Expand Chapter 2G Meetings 
Chapter 2G Meetings
Expand Chapter 2K Charges 
Chapter 2K Charges
Expand Chapter 2L Debentures 
Chapter 2L Debentures
Expand Chapter 2M Financial reports and audit 
Chapter 2M Financial reports and audit
Expand Chapter 2N Updating ASIC information about companies and registered schemes 
Chapter 2N Updating ASIC information about companies and registered schemes
Expand Chapter 5 External administration 
Chapter 5 External administration
Expand Chapter 5B Bodies corporate registered as companies, and registrable bodies 
Chapter 5B Bodies corporate registered as companies, and registrable bodies
Expand Chapter 5C Managed investment schemes 
Chapter 5C Managed investment schemes
Expand Chapter 5D Licensed trustee companies 
Chapter 5D Licensed trustee companies
Expand Chapter 6 Takeovers 
Chapter 6 Takeovers
Expand Chapter 6A Compulsory acquisitions and buy-outs 
Chapter 6A Compulsory acquisitions and buy-outs
Expand Chapter 6CA Continuous disclosure 
Chapter 6CA Continuous disclosure
Expand Chapter 6D Fundraising 
Chapter 6D Fundraising
Expand Volume 2Volume 2
Expand Volume 3Volume 3
Expand Volume 4Volume 4
Expand Volume 5Volume 5
Expand Volume 6Volume 6
Volume 7

Corporations Regulations 2001

Statutory Rules 2001 No. 193 as amended

made under the

This compilation was prepared on 26 May 2011
taking into account amendments up to SLI 2011 No. 66

The text of any of those amendments not in force
on that date is appended in the Notes section

[Note: For cessation details of subregulation 10.2.44A (2),
see subregulations 10.2.44A (3) and (4)]

This document has been split into seven volumes
Volume 1 contains Chapters 1–6D (Rr 1.01–6D.5.02)
Volume 2 contains Chapter 7 (Rr 7.1.01–7.6.08E)
Volume 3 contains Chapters 7 and 8 (Rr 7.7.01–8.4.02)
Volume 4 contains Chapters 9–12 (Rr 9.0.01–12.9.03)
Volume 5 contains Schedules 1, 2 and 2A
Volume 6 contains Schedules 3–12, and
Volume 7 contains the Notes
Each volume has its own Table of Contents

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra


Contents

Chapter 1             Introductory                                                                  

Part 1.0                      Miscellaneous                                                           

                 1.0.01      Name of Regulations [see Note 1]                                  14

               1.0.01A      Commencement [see Note 1]                                         14

                 1.0.02      Interpretation                                                                 14

               1.0.02A      Prescribed financial market (Act s 9)                              24

                 1.0.03      Prescribed forms (Act s 350)                                         24

               1.0.03A      Documents that must be in the prescribed form              25

               1.0.03B      Documents that must be lodged with ASIC                     26

               1.0.03C      Documents that must be in a form approved by ASIC     27

                 1.0.04      Directions and instructions in forms                               28

                 1.0.05      Documents and information required by forms               28

               1.0.05A      Lodgment with ASIC                                                      28

                 1.0.06      Annexures accompanying forms                                    29

                 1.0.07      General requirements for documents                              29

                 1.0.08      Information to accompany financial documents lodged for financial years     31

                 1.0.09      Information to accompany financial documents etc lodged for half‑years      32

                 1.0.10      Continuous disclosure notices                                       33

                 1.0.11      Certain documents to be signed by personal representatives etc      33

                 1.0.12      Form of notice of resolution                                          33

                 1.0.13      Time for lodging documents                                          34

                 1.0.14      Address of registered office or place of business          34

                 1.0.15      Affidavits and statements in writing                                34

                 1.0.16      Certification and verification of certain documents          35

                 1.0.17      Documents signed or sworn in accordance with the rules 35

                 1.0.18      Prescribed provisions (Act s 53)                                    35

                 1.0.20      Copies of orders to be lodged                                       35

                 1.0.21      Identification of lodged orders                                       36

                 1.0.22      Territorial application of Act                                           36

Part 1.1                      Prescribed amounts                                                

                 1.1.01      Prescribed amounts                                                      37

Part 1.2A                  Disclosing entities                                                    

               1.2A.01      Securities declared not to be ED securities                     38

               1.2A.02      Foreign companies issuing securities under foreign scrip offers etc exempt from disclosing entity provisions                                                            38

               1.2A.03      Foreign companies issuing securities under employee share scheme exempt from the disclosing entity provisions                                                            40

Chapter 2A         Registration of companies                                       

Part 2A.1                  Size of partnerships or associations (Act s 115 (2))      

               2A.1.01      Size of partnerships or associations                               41

Part 2A.2                  Change of place of registration of company (Act s 119A (3)) 

               2A.2.01      Approval of application for change of place of registration 43

               2A.2.02      Special resolution may be set aside by Court order         43

               2A.2.03      Application for change of place of registration               44

               2A.2.04      Change of place of registration                                      44

Chapter 2B         Basic features of a company                                   

Part 2B.6                  Names                                                                         

               2B.6.01      Availability of names (Act s 147)                                    45

               2B.6.02      Consents required for use of certain letters, words and expressions 45

               2B.6.03      Exemptions from requirement to set out name and ACN on certain documents (Act s 155)     46

Chapter 2C         Registers                                                                       

Part 2C.1                  Registers generally                                                  

Division 2C.1.1          Location of register                                                        

               2C.1.01      Form of notice                                                              47

Division 2C.1.2          Right to inspect and get copies of register                      

               2C.1.02      Form of register                                                            47

               2C.1.03      Improper purposes for getting copy of register               47

               2C.1.04      Information to be included in application for copy of register            48

Division 2C.1.3          Use of information on registers by bodies corporate      

               2C.1.05      Contact with members after failure to provide copy of register          48

Chapter 2D         Officers and employees                                            

Part 2D.2                  Restrictions on indemnities, insurance and termination payments 

Division 2D.2.2          Termination payments                                                    

               2D.2.01      Meaning of base salary                                                  51

               2D.2.02      Meaning of benefit                                                         52

               2D.2.03      When benefit given in connection with retirement from an office or a position            54

Part 2D.6                  Disqualification from managing corporations  

Division 2D.6.1          Automatic disqualification (Act s 206B)                           

               2D.6.01      Prescribed foreign jurisdictions (Act s 206B (7))              55

Chapter 2E         Related party transactions                                       

               2E.1.01      Small amounts given to related entity                             56

Chapter 2G         Meetings                                                                        

Part 2G.2                  Meetings of members of companies                   

Division 6                    Proxies and body corporate representatives                   

               2G.2.01      Authentication of appointment of proxy (Act s 250A)      57

Chapter 2K         Charges                                                                         

Part 2K.2                  Registration                                                               

               2K.2.01      Lien or charge on crop or wool, or stock mortgage, that is a registrable security: prescribed law  — subsection 262 (5) of the Act                              58

               2K.2.02      Time period for the provisional registration of charges    59

               2K.2.03      Charge that is a registrable security: specified law — paragraphs 273A (4) (b), 273B (3) (b) and 273C (3) (b) of the Act                                                   59

Chapter 2L          Debentures                                                                   

Part 2L.2                   Duties of borrower                                                   

               2L.2.01      Register relating to trustees for debenture holders          60

Chapter 2M         Financial reports and audit                                      

Part 2M.3                  Financial reporting                                                   

Division 1                    Annual financial reports and directors’ reports               

              2M.3.01      Disclosures required by notes to consolidated financial statements  — annual financial reports (Act s 295)                                                                    61

              2M.3.03      Prescribed details (Act s 300A)                                      62

Division 9                    Reference of financial report to the Financial Reporting Panel      

              2M.3.30      Notice to lodging entity of proposed referral of financial report to Financial Reporting Panel by ASIC (Act s 323ED)                                                       70

              2M.3.31      Referral of financial report to Financial Reporting Panel by ASIC (Act s 323EF)         70

              2M.3.32      Referral of financial report to Financial Reporting Panel by lodging entity (Act s 323EI)          70

Part 2M.4                  Auditor                                                                         

            2M.4.01A      Specified practising certificates (Act s 324BE)                71

              2M.4.01      Notice of appointment of auditors                                  71

Part 2M.6                  Modification of the operation of Chapter 2M of the Act

              2M.6.01      Modifications (Act s 343)                                               72

              2M.6.05      Conduct of auditor — relevant relationships                    72

Chapter 2N         Updating ASIC information about companies and registered schemes       

Part 2N.2                  Extract of particulars                                               

               2N.2.01      Particulars ASIC may require in an extract of particulars (Act s 346B)            73

Part 2N.4                  Return of particulars                                                

               2N.4.01      Particulars ASIC may require in a return of particulars (Act s 348B)    76

Chapter 5             External administration                                             

Part 5.1                      Arrangements and reconstructions                    

                 5.1.01      Prescribed information for paragraph 411 (3) (b) and subparagraph 412 (1) (a) (ii) of the Act  78

                 5.1.02      Giving notice under subsection 414 (2) or (9) of the Act   79

Part 5.2                      Receivers, and other controllers, of corporations        

                 5.2.01      Controller’s notice to owner or lessor of property — how given         80

                 5.2.01      Certified copies of reports                                             80

Part 5.3A                  Administration of a company’s affairs with a view to executing a deed of company arrangement                                            

               5.3A.01      Administrator’s notice of ending of administration           81

               5.3A.02      Administrator to specify voidable transactions in statement  81

               5.3A.03      Administrator to lodge notice of appointment                 81

               5.3A.04      Notice of change of administrator’s address                   82

               5.3A.05      Administrator’s notice to owner or lessor of property — how given   82

               5.3A.06      Provisions included in deed of company arrangement     82

               5.3A.07      Administrator becomes liquidator — additional cases     83

Part 5.4                      Winding up in insolvency                                       

                 5.4.01      Application to Court for winding up — prescribed agency 85

                 5.4.02      Compromise of debt by liquidator — prescribed amount 85

Part 5.6                      Winding up generally                                              

                 5.6.01      Matters for entry in liquidator’s or provisional liquidator’s books       86

                 5.6.02      Inspection of books kept under section 531 of the Act    86

                 5.6.06      Payment into liquidator’s general account                       86

                 5.6.07      Deposit of securities                                                     86

                 5.6.08      Delivery of securities                                                     87

                 5.6.09      Special bank account                                                    87

                 5.6.10      Payments out of liquidator’s general account                  87

                 5.6.11      Application                                                                   88

               5.6.11A      Electronic methods of giving or sending certain notices etc  89

                 5.6.12      Notice of meeting                                                          90

                 5.6.13      Proof of notice                                                             92

               5.6.13A      If telephone conference facilities are available                92

               5.6.13B      Persons, or their proxies or attorneys, participating by telephone      93

                 5.6.14      Time and place of meeting                                             94

               5.6.14A      Advertisement of a meeting                                           94

               5.6.14B      Meetings not convened in accordance with regulations    94

                 5.6.15      Costs of convening meetings of creditors etc                 95

                 5.6.16      Quorum                                                                        95

                 5.6.17      Chairperson                                                                  96

                 5.6.18      Adjournment of meeting                                                97

                 5.6.19      Voting on resolutions                                                    97

                 5.6.20      Taking a poll                                                                 98

                 5.6.21      Carrying of resolutions after a poll has been demanded at a meeting of creditors      99

                 5.6.22      Carrying of resolution after a poll has been demanded at a meeting of contributories or members                                                                                  100

                 5.6.23      Creditors who may vote                                               100

               5.6.23A      Voting status of persons by whom money is advanced to a company          101

                 5.6.24      Votes of secured creditors                                           102

                 5.6.26      Admission and rejection of proofs for purposes of voting 102

                 5.6.27      Minutes of meeting                                                      103

                 5.6.28      Appointment of proxies                                               105

                 5.6.29      Form of proxies                                                          106

                 5.6.30      Instruments of proxy                                                    107

                 5.6.31      Proxy forms to accompany notice of meetings             107

               5.6.31A      Person may attend and vote by attorney                       107

                 5.6.32      Liquidator etc may act as proxy                                   108

                 5.6.33      Voting by proxy if financially interested                        108

                 5.6.34      Liquidator etc may appoint deputy                               108

                 5.6.36      Time for lodging proxies                                              109

               5.6.36A      Facsimile copies of proxies                                         109

                 5.6.37      Establishing title to priority                                           109

                 5.6.39      Notice to submit particulars of debt or claim                 110

                 5.6.40      Preparation of a proof of debt or claim                        110

                 5.6.41      Disclosure of security                                                  110

                 5.6.42      Discounts                                                                   110

                 5.6.43      Periodical payments                                                    110

               5.6.43A      Debt or claim of uncertain value — appeal to Court       111

                 5.6.44      Debt discount rate (Act s 554B)                                    111

                 5.6.45      Employees’ wages                                                      111

                 5.6.46      Production of bill of exchange and promissory note     112

                 5.6.47      Admission of debt or claim without formal proof           112

                 5.6.48      Notice to creditors to submit formal proof                    113

                 5.6.49      Formal proof of debt or claim                                      113

                 5.6.50      Contents of formal proof of debt or claim                    114

                 5.6.51      Costs of proof                                                            114

                 5.6.52      Liquidator to notify receipt of proof of debt or claim     114

                 5.6.53      Time for liquidator to deal with proofs                          114

                 5.6.54      Grounds of rejection and notice to creditor                   115

                 5.6.55      Revocation or amendment of decision of liquidator       116

                 5.6.56      Withdrawal or variation of proof of debt or claim           117

                 5.6.57      Oaths                                                                          117

                 5.6.58      Liquidator to make out provisional list of contributories 118

                 5.6.59      Time and place for settlement of list                             118

                 5.6.60      Settlement of list of contributories                                119

                 5.6.61      Supplementary list                                                       119

                 5.6.62      Notice to contributories                                                119

                 5.6.63      Dividend payable only on admission of a debt or claim 120

                 5.6.64      Application of regulations 5.6.37 to 5.6.57                    120

                 5.6.65      Liquidator to give notice of intention to declare a dividend 121

                 5.6.66      Time allowed for dealing with formal proof of debt or claim  122

                 5.6.67      Declaration and distribution of dividend                        123

                 5.6.68      Rights of creditor who has not proved debt before declaration of dividend   123

                 5.6.69      Postponement of declaration                                       124

                 5.6.70      Payment of dividend to a person named                      124

               5.6.70A      Prescribed rate of interest on debts and claims from relevant date to date of payment          124

                 5.6.71      Distribution of surplus in a winding up by the Court       124

                 5.6.72      Distribution of surplus as directed                                124

                 5.6.73      Eligible unsecured creditor                                           125

                 5.6.74      Interpretation: prescribed countries                               125

Chapter 5B         Bodies corporate registered as companies, and registrable bodies  

Part 5B.2                  Registrable bodies                                                   

               5B.2.01      Certified copies of certificates of incorporation etc       126

               5B.2.02      Manner of certifying constituent documents                  126

               5B.2.03      Manner of sending letters (Act ss 601CC (2) and 601CL (3))  127

               5B.2.04      Manner of sending notices (Act ss 601CC (3) and 601CL (4))            127

               5B.2.05      Prescribed countries (Act s 601CDA (a))                       127

               5B.2.06      Notices (Act s 601CV (1))                                             128

Part 5B.3                  Names of registrable Australian bodies and foreign companies      

               5B.3.01      Availability of names (Act s 601DC)                              129

               5B.3.02      Consents required for use of certain letters, words and expressions 129

               5B.3.03      Exemptions from requirement to set out ARBN etc on certain documents (Act s 601DG)        130

               5B.3.04      Notices (Act s 601DH (1))                                             130

Chapter 5C         Managed investment schemes                               

Part 5C.1                  Registration of managed investment schemes

               5C.1.01      Applying for registration                                              131

               5C.1.02      Change of name of registered schemes                        131

               5C.1.03      Modification (Act s 601QB)                                          132

Part 5C.2                  The responsible entity                                            

               5C.2.01      Duty of responsible entities’ agents — surveillance checks 133

               5C.2.02      Appointment of temporary responsible entities             133

               5C.2.03      Form of notices (Act ss 601FL (2) and 601FM (2))         133

               5C.2.04      Notice of appointment of temporary responsible entities 133

               5C.2.05      Form of notices (Act s 601FP (3))                                 133

Part 5C.4                  The compliance plan                                               

               5C.4.01      Agents’ authorities to be lodged                                   134

               5C.4.02      Agents to assist auditors of compliance plans              134

Part 5C.5                  The compliance committee                                   

               5C.5.01      Responsible entities etc to assist compliance committees 135

Part 5C.9                  Winding up                                                                 

               5C.9.01      Notice of commencement of winding up                       136

Part 5C.11               Exemptions and modifications                             

Division 1                    Exemptions                                                                    

             5C.11.01      Certain funds not managed investment funds                137

Division 2                    Modifications                                                                  

             5C.11.02      Modifications                                                              137

             5C.11.03      Register of members of registered schemes  (Act s 169 (1)) 137

             5C.11.04      Names of registered schemes (Act s 601EB (1))            137

           5C.11.05A      Schemes not required to be registered (Act s 601ED)    137

             5C.11.06      Liability of responsible entities (Act s 601FB (4))           138

Chapter 5D         Licensed trustee companies                                   

Part 5D.1                  Preliminary                                                                 

               5D.1.01      Meaning of trustee company                                        139

               5D.1.02      Meaning of traditional trustee company services and estate management functions     139

               5D.1.03      Meaning of mortgage-backed security                           141

               5D.1.04      Interaction between trustee company provisions and State and Territory laws            143

Part 5D.2                  Powers etc of licensed trustee companies       

Division 2.1                 Annual Information Returns                                            

               5D.2.01      Obligation on licensed trustee company to provide an annual information return if requested 144

               5D.2.02      Information to be included in annual information return  146

Division 2.2                 Common funds                                                               

               5D.2.03      Common funds                                                           146

               5D.2.04      Establishment of common funds                                  146

               5D.2.05      Deciding details about common funds                         147

               5D.2.06      Operation of common funds                                        148

               5D.2.07      Register of investments                                               151

               5D.2.08      Financial reports                                                          151

               5D.2.09      Arm’s length transactions                                             153

Part 5D.3                  Regulation of fees charged by licensed trustee companies  

               5D.3.01      Modification of section 601TAB of the Act: disclosure to clients of changed fees     154

Chapter 6             Takeovers                                                                     

Part 6.2                      Exceptions to the prohibition                                

                 6.2.01      Prescribed circumstances (Act s 611)                           155

                 6.2.02      Other prescribed circumstances (Act s 611)                  156

Part 6.5                      The takeover procedure                                         

                 6.5.01      Wholesale holder of securities — telephone monitoring during bid period      157

Part 6.6                      Variation of offers                                                     

                 6.6.01      Right to withdraw acceptance                                       158

Part 6.8                      Acceptances                                                              

                 6.8.01      Acceptance of offers made under off‑market bid          159

                 6.8.02      Acceptances by transferees and nominees of offers made under off‑market bid       159

Part 6.10                   Review and intervention                                         

               6.10.01      Application for review of Panel decision (Act s 657EA)  160

Chapter 6A         Compulsory acquisitions and buy‑outs               

Part 6A.1                  Compulsory acquisitions and buy‑outs after takeover bid    

               6A.1.01      Terms on which securities to be acquired                      161

Chapter 6CA     Continuous disclosure                                              

             6CA.1.01      Continuous disclosure: other disclosing entities            162

Chapter 6D         Fundraising                                                                  

Part 6D.2                  Disclosure to investors about securities           

               6D.2.01      Exemption — member shares                                      163

               6D.2.02      Exemption — foreign companies                                 163

               6D.2.03      Sophisticated investors                                               163

Part 6D.5                  Fundraising — miscellaneous                              

               6D.5.01      Warrants that are securities                                          164

               6D.5.02      Modification of paragraph 708 (8) (c) of the Act: renewal period for accountants’ certificates 164

 


Note about these Regulations

These Regulations are made under the Corporations Act 2001. To assist users of these Regulations, these Regulations follow, as far as possible, the drafting style, structure and numbering of the Corporations Regulations 1990 that were made under the Corporations Act 1989. Because some provisions of the Corporations Regulations 1990 are not remade in these Regulations, some gaps appear in the numbering of these Regulations. Also, the drafting style departs in minor ways from that used in the Corporations Regulations 1990.

Chapter 1    Introductory

Part 1.0              Miscellaneous

  

1.0.01     Name of Regulations [see Note 1]

                These Regulations are the Corporations Regulations 2001.

1.0.01A  Commencement [see Note 1]

                These Regulations commence on the same day as the Corporations Act 2001.

1.0.02     Interpretation

         (1)   In these Regulations:

ABN (Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACH means Australian Clearing House Pty Limited.

Act means the Corporations Act 2001.

agent means a person appointed under subsection 601CG (1) of the Act.

approved deposit fund (or ADF) has the same meaning as in the SIS Act.

approved foreign bank:

                (a)    in relation to a participant of a licensed market, means a bank:

                          (i)    established by or under the law of a foreign country; and

                         (ii)    in relation to which there is in force an approval given by the market licensee in accordance with its operating rules or by ASIC under the market integrity rules; and

               (b)    in relation to a financial services licensee other than a participant of a licensed market, means a bank:

                          (i)    regulated by an overseas regulator; and

                         (ii)    in relation to which there is in force an approval given by ASIC for the purposes of this definition.

approved form, in relation to a provision of the Act or of these Regulations, means the form that is approved under paragraph 350 (1) (b) of the Act for use for that provision.

associated provisions, in relation to provisions (the core provisions) of the relevant old legislation as in force at a particular time, include (but are not limited to):

                (a)    any regulations or other instruments that are or were in force for the purposes of any of the core provisions at that time; and

               (b)    any interpretation provisions that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

                (c)    any provisions relating to liability (civil or criminal) that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

               (d)    any provisions that limit or limited, or that otherwise affect or affected, the operation of any of the core provisions at that time (whether or not they also limit or limited, or affect or affected, the operation of other provisions).

ASTC means ASX Settlement and Transfer Corporation Pty Limited.

ASTC certificate cancellation provisions means the provisions of the ASTC operating rules that deal with:

                (a)    the cancellation of certificates or other documents of title to Division 4 financial products; and

               (b)    matters incidental to the cancellation of those certificates or documents.

ASTC‑regulated transfer means a transfer of a Division 4 financial product:

                (a)    within the meaning of:

                          (i)    Division 4 of Part 7.11 of the Act; and

                         (ii)    regulations relating to transfer made for sections 1074A and 1074E of the Act; and

               (b)    that is effected through ASTC; and

                (c)    that, according to the ASTC operating rules, is an ASTC‑ regulated transfer.

benefit fund has the meaning given by section 16B of the Life Insurance Act 1995.

building society has the same meaning as in section 16 of the RSA Act.

capital guaranteed, for a superannuation product or an RSA product, means that the contributions and accumulated earnings may not be reduced by a negative investment return or a reduction in the value of an asset in which the product is invested.

capital guaranteed FHSA product means an FHSA product:

                (a)    that is an FHSA deposit account or an FHSA life policy; and

               (b)    for which the balance may not be reduced other than by the debiting of fees.

capital guaranteed fund means a public offer superannuation fund, or a sub‑fund of a public offer superannuation fund, that has the following characteristics:

                (a)    its investments comprise 1 or more of the following only:

                          (i)    deposits with an ADI;

                         (ii)    investments in a capital guaranteed superannuation product or RSA product;

               (b)    the contributions and accumulated earnings of its members cannot be reduced by negative investment returns (within the meaning of subregulation 5.01 (1) of the SIS Regulations) or by any reduction in the value of its assets.

capital guaranteed member means a member whose interest in a public offer superannuation fund is fully invested in a capital guaranteed fund.

Division 3 asset means:

                (a)    shares mentioned in paragraph 1073A (1) (a) of the Act; or

               (b)    debentures mentioned in paragraph 1073A (1) (b) of the Act; or

                (c)    interests in a registered scheme mentioned in paragraph 1073A (1) (c) of the Act; or

               (d)    securities mentioned in paragraph 1073A (1) (e) of the Act.

Division 3 rights means:

                (a)    rights mentioned in paragraph 1073A (1) (d) of the Act; and

               (b)    rights related to securities mentioned in paragraph 1073A (1) (e) of the Act.

Division 3 securities means Division 3 assets and Division 3 rights.

Division 4 financial product has the meaning given by regulation 7.11.03.

enduring power of attorney means an enduring power of attorney that complies with a law of a State or Territory.

Exchange body means:

                (a)    Australian Stock Exchange Limited; or

               (b)    a subsidiary of Australian Stock Exchange Limited.

excluded ADF has the same meaning as in the SIS Act.

exempt public sector superannuation scheme (EPSSS) has the same meaning as in the SIS Act.

FHSA deposit account means an FHSA product of a kind mentioned in subparagraph (c) (i) of the meaning of FHSA in section 8 of the First Home Saver Accounts Act 2008.

FHSA life policy means an FHSA product of a kind mentioned in subparagraph (c) (ii) of the meaning of FHSA in section 8 of the First Home Saver Accounts Act 2008.

financial business means a business that:

                (a)    consists of, or includes, the provision of financial services; or

               (b)    relates wholly or partly to the provision of financial services.

form means an approved form or a prescribed form.

friendly society has the meaning given by section 16C of the Life Insurance Act 1995.

FSR commencement means the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.

income stream financial product means an annuity or other facility that is a financial product which provides an income stream, including:

                (a)    an income stream that is an investment life insurance product; or

               (b)    an income designated under section 9 of the Social Security Act 1991 or section 5H of the Veterans’ Entitlements Act 1986;

but does not include any of the following:

                (c)    a financial product under paragraph 764A (1) (ba) of the Act;

               (d)    anything that is not a financial product under section 765A of the Act;

                (e)    available money;

                (f)    deposit money;

               (g)    a managed investment product;

               (h)    a security;

                (i)    a loan that has not been repaid in full;

                (j)    gold, silver or platinum bullion.

Note   In accordance with subsections 761G (6) and (7) of the Act, superannuation products and RSA products are not income stream financial products.

investment‑based financial product means:

                (a)    a financial product under section 763B of the Act; or

               (b)    a financial product under paragraph 764A (1) (ba) or (j) of the Act; or

                (c)    a financial product under paragraph 764A (1) (m) of the Act that is specified to be an investment‑based financial product; or

               (d)    a security; or

                (e)    a managed investment product; or

                (f)    an investment life insurance product; or

               (g)    a deposit product;

but does not include any of the following:

               (h)    anything that is not a financial product under section 765A of the Act;

                (i)    an income stream financial product.

Note   In accordance with subsections 761G (6) and (7) of the Act, superannuation products and RSA products are not income stream financial products.

Lloyd’s has the same meaning as in the Insurance Act 1973.

margin loan, or margin lending, means a standard margin lending facility.

medical indemnity insurance product means an arrangement:

                (a)    under which medical indemnity cover is provided to:

                          (i)    a medical practitioner as defined in section 4 of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003; or

                         (ii)    a registered health professional prescribed by
the Medical Indemnity (Prudential Supervision
and Product Standards) Regulations 2003
for a provision of Part 3 of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003; and

               (b)    to which the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 applies.

minor fee, for a margin loan, means a fee or cost for the margin loan that does not relate to the ordinary acquisition, operation or closure of the loan and which is less than $10.

non‑cash payment financial product means a financial product under section 763D of the Act, other than:

                (a)    a derivative; or

               (b)    a financial product under paragraph 764A (1) (k) of the Act; or

                (c)    anything that is not a financial product under section 765A of the Act.

non‑Division 3 securities means financial products to which Division 3 or 4 of Part 7.11 of the Act applies because of a declaration made by ASIC under paragraph 1075A (1) (b) of the Act.

old Corporations Act means the Corporations Act 2001 as in force immediately before the FSR commencement.

policy committee has the same meaning as in the SIS Act.

pooled superannuation trust (or PST) has the same meaning as in the SIS Act.

pre‑FSR securities means securities defined in subsection 92 (3) of the old Corporations Act.

preserved benefits means preserved benefits under:

                (a)    Subdivision 6.1.2 of the SIS Regulations; or

               (b)    Subdivision 4.1.2 of the RSA Regulations.

proper ASTC transfer means:

                (a)    an ASTC‑regulated transfer of a Division 4 financial product effected:

                          (i)    through the prescribed CS facility operated by the ASTC; and

                         (ii)    in accordance with the operating rules of the ASTC; and

               (b)    an ASTC‑regulated transfer that the ASTC, in accordance with its operating rules, determines:

                          (i)    to comply substantially with the applicable provisions of those operating rules; and

                         (ii)    to be taken to be, and always to have been, a proper ASTC transfer.

public offer entity has the same meaning as in the SIS Act.

public offer superannuation fund has the same meaning as in the SIS Act.

registration number means:

                (a)    for a company — the number allotted to the company under paragraph 118 (1) (a) or 601BD (1) (a) of the Act; or

               (b)    for a registered body — the number allotted to it under section 601CB or 601CE of the Act; or

                (c)    for an auditor or a liquidator (including an official liquidator or a liquidator of a specified body corporate) — the number allotted to a person on registration of that person as an auditor or a liquidator.

regulated superannuation fund has the same meaning as in the SIS Act.

restricted non‑preserved benefits means restricted non‑ preserved benefits under:

                (a)    Subdivision 6.1.3 of the SIS Regulations; or

               (b)    Subdivision 4.1.3 of the RSA Regulations.

retirement savings account has the same meaning as in the RSA Act.

risk‑based financial product means:

                (a)    a financial product under section 763C of the Act; or

               (b)    a life risk insurance product;

but does not include any of the following:

                (c)    a derivative;

(d)    anything that is not a financial product under section 765A of the Act.

Note   In accordance with subsections 761G (5) and (7) of the Act, general insurance products are not risk‑based financial products.

RSA Act means the Retirement Savings Accounts Act 1997.

RSA Regulations means the Retirement Savings Accounts Regulations 1997.

settlement documents, in relation to a transaction, means:

                (a)    if the agreement for the transaction has not been discharged — documents the supply of which in accordance with the agreement is sufficient to discharge the obligations of the seller under the agreement, in so far as the obligations relate to the supply of documents in connection with the transaction; or

               (b)    if the agreement for the transaction has been discharged, whether by performance or otherwise — documents the supply of which in accordance with the agreement would, if the agreement had not been discharged, be sufficient to discharge the obligations of the seller under the agreement, in so far as the obligations relate to the supply of documents in connection with the transaction.

simple managed investment scheme means a registered management investment scheme which is or was offered because it meets 1 of the following requirements:

                (a)    the scheme invests at least 80% of its assets in money in an account with a bank on the basis that the money is available for withdrawal:

                          (i)    immediately during the bank’s normal business hours; or

                         (ii)    at the end of a fixed-term period that does not exceed 3 months;

               (b)    the scheme invests at least 80% of its assets in money on deposit with a bank on the basis that the money is available for withdrawal:

                          (i)    immediately during the bank’s normal business hours; or

                         (ii)    at the end of a fixed-term period that does not exceed 3 months;

                (c)    the scheme invests at least 80% of its assets under 1 or more arrangements by which the responsible entity of the scheme can reasonably expect to realise the investment, at the market value of the assets, within 10 days.

SIS Act means the Superannuation Industry (Supervision) Act 1993.

SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994.

sub‑plan, in relation to a regulated superannuation fund, means a segment of the fund comprising a member or members of the fund, being a sub‑plan that the trustee determines should be made.

successor fund has the same meaning as in the SIS Regulations.

superannuation entity has the same meaning as in the SIS Act.

superannuation interest has the same meaning as in the SIS Act.

superannuation lump sum has the meaning given by subsection 995‑1 (1) of the Income Tax Assessment Act 1997.

superannuation scheme means a complying superannuation fund within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997.

superannuation‑sourced money means money in relation to which:

                (a)    the provider of a financial service knows that the money:

                          (i)    will be paid to a person as a superannuation lump sum by the trustee of a regulated superannuation fund; or

                         (ii)    has been paid as an eligible termination payment (within the meaning of these Regulations as in
force immediately before 1 July 2007) or as a superannuation lump sum at any time during the previous 6 months; or

               (b)    the provider of the financial service ought reasonably to know that fact.

trustee in relation to a superannuation scheme, includes a person responsible for the administration and management of the scheme.

unrestricted non‑preserved benefits means unrestricted non‑preserved benefits under:

                (a)    Subdivision 6.1.4 of the SIS Regulations; or

               (b)    Subdivision 4.1.4 of the RSA Regulations.

warrant means a financial product:

                (a)    that is:

                          (i)    a derivative under section 761D of the Act; or

                         (ii)    a financial product that would, apart from the effect of paragraph 761D (3) (c) of the Act, be a derivative for section 761D of the Act, and is excluded by that paragraph only because:

                                   (A)     it is a security under paragraph (c) of the definition of security in section 761A of the Act; or

                                   (B)     it is a legal or equitable right or interest mentioned in subparagraph 764A (1) (b) (ii) of the Act; or

                                   (C)     it is a legal or equitable right or interest mentioned in subparagraph 764A (1) (ba) (ii) of the Act; and

               (b)    that is transferable.

         (2)   In these Regulations, a reference to a form by number is a reference to the form so numbered in Schedule 2.

1.0.02A  Prescribed financial market (Act s 9)

                For the definition of prescribed financial market in section 9 of the Act, the following financial markets are prescribed:

                (a)    Australia Stock Exchange Limited;

               (b)    Bendigo Stock Exchange Ltd;

                (c)    National Stock Exchange of Australia Limited.

1.0.03     Prescribed forms (Act s 350)

         (1)   A form in Schedule 2 mentioned in an item in column 4 of Schedule 1 is prescribed for the provision of the Act, or of these Regulations, that is specified in the item in column 2.

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

         (2)   In a form, unless the contrary intention appears, a reference to a Chapter, Part, Division, section, subsection, paragraph or subparagraph is a reference to that Chapter, Part, Division, section, subsection, paragraph or subparagraph of the Act.

1.0.03A  Documents that must be in the prescribed form

                A document mentioned in the table under a provision of the Act mentioned in the table must be in the prescribed form.

 

Item

Document

Provision of the Act

1A

Certificate to the effect that all documents accompanying a notice lodged under section 263 or 264 of the Act have been duly stamped as required by any applicable law relating to stamp duty

Paragraph 265 (4) (b)

1B

Notice stating that a person other than the original chargee has become the holder of a registrable charge on property of a company

Subsection 268 (1)

1C

Notice setting out particulars of a variation in the terms of a registrable charge on property of a company

Subsection 268 (2)

1

Notice of appointment to administer a compromise or arrangement

Subsection 415 (1)

2

Notice that an order for the appointment of a receiver of property has been obtained or of the appointment of a receiver

Paragraph 427 (1) (a)

3

Notice of the appointment of a person to enter into possession or take control of the property of a corporation

Paragraph 427 (1A) (a)

4

Notice of entering into possession or taking control

Paragraph 427 (1B) (a)

5

Notice that the person has ceased to be a controller

Paragraph 427 (4) (a)

6

Written notice stating that a company is taken to have passed a resolution to wind up the company

Paragraph 446A (5) (a)

7

Notice of the appointment of an administrator

Paragraph 450A (1) (a)

8

Notice of failure to execute deed of company arrangement

Paragraph 450C (a)

9

Notice of termination of deed of company arrangement

Paragraph 450D (a)

10

Notice of filing of application to wind up a company

Paragraph 470 (1) (a)

11

Notice of making of order to wind up a company

Paragraph 470 (1) (b)

12

Notice of withdrawal or dismissal of application to wind up a company

Paragraph 470 (1) (c)

13

Return of the holding of a meeting with account attached

Subsection 509 (3) or (4)

14

Statement in writing verifying an account or statement

Paragraph 539 (1) (a) or (b)

15

Written notice disclaiming property

Subsection 568A (1)

16

Statement by a liquidator

Subsection 1288 (3) or (5)

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 1 July 2007, forms for the documents mentioned in the table are not prescribed in these Regulations.

1.0.03B  Documents that must be lodged with ASIC

                A document mentioned in an item in the table for a provision mentioned in the item must be lodged:

                (a)    with ASIC; and

               (b)    if the document is mentioned for subsection 430 (1) of the Act — by a controller, within 7 days of the controller receiving a report under that subsection.

 

Item

Document

Provision of the Act

1

Statement in writing in the prescribed form verifying a report about the affairs of a company

Subsection 430 (1) or 475 (1) or (2)

2

Report about the affairs of a company

Subsection 430 (1)

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, forms for the documents mentioned in item 1 of the table are not prescribed in these Regulations.

1.0.03C  Documents that must be in a form approved by ASIC

                A document mentioned in the table under a provision of the Act mentioned in the table must be in a form approved by ASIC (if a form has been approved).

 

Item

Document

Provision of the Act

1

Statement about the company’s business, property, affairs and financial circumstances

Subsection 438B (2)

2

Report about a company’s business, property, affairs and financial circumstances

Paragraph 439A (4) (a)

3

Notice of termination of deed of company arrangement

Paragraph 450D (b)

Note   The documents mentioned in the table are not required to be lodged with ASIC under the Act, and are not documents to which section 350 of the Act applies.

1.0.04     Directions and instructions in forms

                A form must be completed in accordance with the directions and instructions specified in the form.

1.0.05     Documents and information required by forms

         (1)   If a form requires:

                (a)    the lodging of a document; or

               (b)    the giving of information:

                          (i)    by completing the form in the prescribed manner; or

                         (ii)    by supplying or completing another document;

                the document or information is taken to be the document or information required for the provision of the Act or of these Regulations for which the form is approved under paragraph 350 (1) (b) of the Act or included in Schedule 2.

         (2)   If the Act requires particulars to be provided by the giving of information in a form, the particulars included in the form are taken to be the particulars required:

                (a)    if the form is an approved form — for the provision of the Act for which the form is approved under paragraph 350 (1) (b) of the Act; and

               (b)    if the form is a prescribed form — for the provision of the Act for which the form is included in Schedule 2.

1.0.05A  Lodgment with ASIC

         (1)   For the definition of lodge with ASIC in section 761A of the Act, the definition relates to each provision of Chapter 7 of the Act that includes the expression lodge with ASIC.

         (2)   For paragraph 1364 (2) (c) of the Act:

                (a)    a statement that is to be given to ASIC in accordance with subsection 912C (1) of the Act may be lodged with ASIC in the prescribed form; and

               (b)    a report that is to be given to ASIC in accordance with subsection 912D (1) of the Act may be lodged with ASIC in the prescribed form; and

                (c)    written notice that is to be given to ASIC in accordance with subsection 912D (2) of the Act may be lodged with ASIC in the prescribed form; and

               (d)    information that is to be given to ASIC in accordance with subsection 912E (2) of the Act may be lodged with ASIC in the prescribed form; and

                (e)    information that is to be provided to ASIC in accordance with paragraph 913B (1) (ca) of the Act may be lodged with ASIC in the prescribed form; and

                (f)    a document that is to be lodged with ASIC for Part 10.2 of the Act must be lodged in the prescribed form.

1.0.06     Annexures accompanying forms

         (1)   In this regulation:

annexure includes a document that is with a form.

         (2)   An annexure to a form must:

                (a)    have an identifying mark; and

               (b)    be endorsed with the words:

                        ‘This is the annexure of (insert the number of pages) pages marked (insert an identifying mark) mentioned in the (insert a description of the form) signed by (insert ‘me’ or ‘us’) and dated (insert the date of signing)’; and

                (c)    be signed by each person signing the form to which the document is annexed.

         (3)   The pages in an annexure must be numbered consecutively.

         (4)   If a form has a document annexed, the following particulars of the annexure must be written on the form:

                (a)    the identifying mark; and

               (b)    the number of pages.

1.0.07     General requirements for documents

                Unless ASIC otherwise approves, a document to be lodged must:

                (a)    be on white or light pastel colour paper:

                          (i)    of international A4 size; and

                         (ii)    of medium weight and good quality; and

               (b)    be clearly printed or written in black or dark blue in a manner that is permanent and will make possible a reproduction, by photographic, computerised or other electronic means that is satisfactory to ASIC; and

                (c)    not be a carbon copy or a copy reproduced by any spirit duplication method; and

               (d)    subject to paragraph (h), have margins of not less than 10 millimetres on all sides; and

                (e)    if it comprises 2 or more sheets, be fastened together securely in the top left‑hand corner; and

                (f)    display on the first page of the document or, if the document is a single sheet, on that sheet:

                          (i)    subject to regulation 7.6.03:

                                   (A)     the ACN, ARBN or ARSN of the corporation or managed investment scheme; or

                                   (B)     if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, ARBN or ARSN (if the corporation or managed investment scheme has an ACN, ARBN or ARSN) — its ABN; and

                         (ii)    the name of the corporation or managed investment scheme; and

                        (iii)    the title of the document; and

                        (iv)    the section number of the Act under which the document is being lodged; and

               (g)    have the following information at the top left‑hand of the first sheet:

                          (i)    registered agent number (if any); and

                         (ii)    lodging party or agent name; and

                        (iii)    address; and

                        (iv)    telephone number; and

                         (v)    facsimile number (if any); and

                        (vi)    DX number and applicable suburb or city (if any); and

               (h)    at the top right‑hand of the first sheet, have a blank space that measures 35 millimetres from the top of the page and 65 millimetres from the right‑hand side of the page; and

                (j)    if the document is a form relating to a no liability company, be completed by inserting the words ‘No Liability’ in place of the word ‘Limited’; and

               (k)    in the case of an unlimited company, have the word ‘Limited’ omitted; and

                (l)    if the document contains maps or charts on which areas have been distinguished by colour, also distinguish those areas by hatching, numbering or lettering.

1.0.08     Information to accompany financial documents lodged for financial years

                A document lodged under subsection 319 (1) of the Act for a financial year must be accompanied by the approved form setting out the following information:

                (a)    if the disclosing entity is a company:

                          (i)    the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

                         (ii)    the dates on which the financial year to which the document relates begins and ends; and

                        (iii)    a statement of certification in accordance with regulation 1.0.16; or

               (b)    if the disclosing entity is a body (other than a company):

                          (i)    the ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN, the ABN of the body; and

                         (ii)    the dates on which the financial year to which the document relates begins and ends; and

                        (iii)    a statement of certification in accordance with regulation 1.0.16; or

                (c)    if the disclosing entity is a registered scheme:

                          (i)    the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and

                         (ii)    the dates of the beginning and end of the half‑year to which the document relates; and

                        (iii)    the name of the responsible entity of the scheme and the name of the scheme; and

                        (iv)    a statement of certification in accordance with regulation 1.0.16.

1.0.09     Information to accompany financial documents etc lodged for half‑years

                A document lodged under section 320 of the Act for a half‑year must be accompanied by the approved form setting out the following information:

                (a)    if the disclosing entity is a company:

                          (i)    the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

                         (ii)    the dates on which the half‑year to which the document relates begins and ends; and

                        (iii)    a statement of certification in accordance with regulation 1.0.16; or

               (b)    if the disclosing entity is a body (other than a company):

                          (i)    the ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN, the ABN of the body; and

                         (ii)    the dates on which the half‑year to which the document relates begins and ends; and

                        (iii)    a statement of certification in accordance with regulation 1.0.16; or

                (c)    if the disclosing entity is a registered scheme:

                          (i)    the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and

                         (ii)    the dates of the beginning and end of the half‑years to which the document relates; and

                        (iii)    the name of the responsible entity of the scheme and the name of the scheme; and

                        (iv)    a statement of certification in accordance with regulation 1.0.16.

1.0.10     Continuous disclosure notices

                A document lodged under section 1001B of the Act must
be accompanied by Form 1003 setting out the following information:

                (a)    if the disclosing entity is a body:

                          (i)    the ACN or ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN or ARBN, the ABN of the body; and

                         (ii)    a statement of certification in accordance with regulation 1.0.16; or

               (b)    if the disclosing entity is a registered scheme:

                          (i)    the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and

                         (ii)    the name of the responsible entity of the scheme and the name of the scheme; and

                        (iii)    a statement of certification in accordance with regulation 1.0.16.

1.0.11     Certain documents to be signed by personal representatives etc

                Unless these Regulations state otherwise, a document relating to a corporation that is a proprietary company to which section 201F of the Act applies that does not have a director or secretary must be signed by the personal representative or trustee mentioned in that section.

1.0.12     Form of notice of resolution

                A copy of a resolution lodged under subsection 136 (5), 157 (2), 162 (3), 246F (3), 254H (4), 254N (2), 256C (3), 260B (7), 461 (2), 491 (2), 506 (1B), 507 (11) or 510 (1A) of the Act must be set out in, or annexed to, a notice in accordance with  the approved form.

1.0.13     Time for lodging documents

                If:

                (a)    a document must be lodged; and

               (b)    the period within which the document must be lodged is not prescribed;

the document must be lodged:

                (c)    if paragraph (d) does not apply — within one month; or

               (d)    if the document is to be lodged by a foreign company
and ASIC allows a further period because of special circumstances — that further period;

after the happening of the event to which the document relates.

1.0.14     Address of registered office or place of business

                If notice must be given under these Regulations of:

                (a)    the address of an office or a proposed office; or

               (b)    the address of a place of business;

of a corporation or a person, the notice must include:

                (c)    if applicable, the number of the room in which; and

               (d)    if applicable, the number of the floor or level on which; and

                (e)    the place in Australia in which;

the office or place of business is, or is to be, situated.

1.0.15     Affidavits and statements in writing

         (1)   An affidavit or statement in writing must be sworn or made, on behalf of a corporation, by a director or a secretary of the corporation.

         (2)   If an affidavit is sworn outside Australia, the affidavit is sufficient if it appears to be sworn in accordance with the requirements of the law of that place.

1.0.16     Certification and verification of certain documents

                A document relating to a corporation or managed investment scheme that is to be certified or verified must be certified or verified in the approved form and signed by:

                (a)    a director or secretary of the corporation, or of the responsible entity of the scheme, who resides in Australia or an external territory; or

               (b)    an agent of the corporation or entity or, if the agent is a company, a director or secretary of the company who resides in Australia or an external territory.

1.0.17     Documents signed or sworn in accordance with the rules

         (1)   A document that is signed in accordance with the rules is taken to have been signed in accordance with regulation 1.0.11.

         (2)   An affidavit or statement that is sworn or made in accordance with the rules is taken to have been sworn or made in accordance with regulation 1.0.15.

1.0.18     Prescribed provisions (Act s 53)

                For section 53 of the Act, the following provisions of the Act are prescribed:

                (a)    section 657A;

               (b)    paragraphs 12 (2) (b) and (c) of the Act.

1.0.20     Copies of orders to be lodged

                A person who obtains an order of the Court under or for:

                (c)    subsection 266 (4); or

               (d)    section 274; or

                (e)    subsection 484 (1); or

              (ea)    paragraph 484 (2) (c); or

                (f)    section 583; or

               (g)    section 585; or

               (h)    section 601ND; or

                (j)    section 1322;

of the Act, must lodge an office copy of the order with ASIC.

1.0.21     Identification of lodged orders

                If an order or copy of an order of a court is lodged with ASIC, it must be accompanied by a cover page in Form 105 identifying the legislative provision or other law under which the order was made and the nature of the order.

1.0.22     Territorial application of Act

                For subsection 5 (9) of the Act, each of the external Territories is included in this jurisdiction for the purposes of Chapter 7 of the Act (other than Parts 7.2 to 7.5 and Part 7.11) in relation to:

                (a)    a superannuation product within the meaning of section 761A of the Act; and

               (b)    an RSA product within the meaning of section 761A of the Act; and

                (c)    a financial service that relates to a superannuation product within the meaning of section 761A of the Act; and

               (d)    a financial service that relates to an RSA product within the meaning of section 761A of the Act.


 

Part 1.1              Prescribed amounts

  

1.1.01     Prescribed amounts

                The amount specified in an item in column 3 of Schedule 4 is prescribed in relation to the matter specified in the item in column 2.


 

Part 1.2A            Disclosing entities

  

1.2A.01  Securities declared not to be ED securities

                For section 111AJ of the Act, the following securities are declared not to be ED securities:

                (a)    securities of a body that, under the listing rules of the Australian Stock Exchange Limited, is an exempt foreign entity; or

               (b)    securities that are quoted on Australian Bloodstock Exchange Limited.

1.2A.02  Foreign companies issuing securities under foreign scrip offers etc exempt from disclosing entity provisions

         (1)   For section 111AS of the Act, a foreign company is exempt from the disclosing entity provisions in respect of ED securities under section 111AG of the Act if:

                (a)    the company issues the securities in connection with a foreign takeover bid or foreign scheme of arrangement; and

               (b)    the securities issued are, at the time of issue, securities in a class of securities quoted on an approved foreign exchange; and

                (c)    the terms and conditions of the issue to citizens and Australian permanent residents are the same as those applying to each other person receiving securities that are in the same class; and

               (d)    the same notices, documents or other information
(or, where applicable, an English translation of these) (modified, if necessary, to include any additional information for the purposes of complying with Chapter 6D of the Act) are given to Australian citizens or permanent residents as are given to each other person; and

                (e)    the notices, documents and other information are given to Australian citizens and permanent residents at the same time, or as soon as practicable after, they are given to those other persons; and

                (f)    in relation to the issue — the company complies with all legislative and stock exchange requirements in the place in which is located:

                          (i)    the approved foreign exchange; or

                         (ii)    if more than one — the principal approved exchange;

                        on which the company’s securities are quoted.

         (2)   In this regulation:

approved foreign exchange includes:

                (a)    American Stock Exchange Inc.;

               (b)    New York Stock Exchange Inc.;

                (c)    New Zealand Stock Exchange;

               (d)    The Stock Exchange of Hong Kong Ltd;

                (e)    Stock Exchange of Singapore Limited;

                (f)    The Amsterdam Stock Exchange;

               (g)    the Frankfurt Stock Exchange;

               (h)    The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited;

                (i)    the Milan Stock Exchange;

                (j)    the NASDAQ National Market;

               (k)    the Paris Bourse;

                (l)    the Tokyo Stock Exchange;

              (m)    the Toronto Stock Exchange;

               (n)    the Zurich Stock Exchange.

foreign scheme of arrangement means a compromise or arrangement that is subject to court approval under subsection 411 (6) of the Act, between:

                (a)    a foreign company and a class of its creditors; or

               (b)    a foreign company and a class of its members.

foreign takeover bid means a bid to acquire some or all of the securities of:

                (a)    all holders of a class of securities of a foreign company; or

               (b)    all holders of those securities except the bidder or the bidder and associates of the bidder.

1.2A.03  Foreign companies issuing securities under employee share scheme exempt from the disclosing entity provisions

         (1)   For section 111AS of the Act, a foreign company is exempt from the disclosing entity provisions in respect of an offer of shares in the company for issue or sale:

                (a)    that is made to employees of the company, or of an associated body corporate, under an employee share scheme; and

               (b)    in relation to which a disclosure document is lodged with ASIC.

         (2)   Subregulation (1) is not affected by any action of an employee, the result of which is that another person who is not an employee acquires an interest in a share issued under the employee share scheme.

         (3)   For this regulation:

                (a)    an employee share scheme is a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company only to a person who is a full‑time or part‑time director or employee of the company or of an associated body corporate when the offer is made; and

               (b)    a body corporate is an associated body corporate in relation to a foreign company if:

                          (i)    the body corporate is related to the company within the meaning of section 50 of the Act; or

                         (ii)    the body corporate is entitled to at least 20% of the voting shares of the company; or

                        (iii)    the company is entitled to at least 20% of the voting shares of the body corporate.

Chapter 2A  Registration of companies

Part 2A.1            Size of partnerships or associations (Act s 115 (2))

  

2A.1.01  Size of partnerships or associations

         (1)   For paragraph 115 (1) (b) of the Act, the number prescribed for a kind of partnership or association is the number specified in the following table for that kind of partnership or association:

 

Item

Kind of partnership or association

Number

1

   (a)  Actuaries, medical practitioners, patent attorneys, sharebrokers, stockbrokers or trademark attorneys

  (b)  Partnerships or associations of the kind specified in subregulation (2)

50

2

Architects, pharmaceutical chemists or veterinary surgeons

100

3

Legal practitioners

400

4

Accountants

1 000

         (2)   For paragraph (b) of item 1 of the table in subregulation (1), the partnership or association is one that:

                (a)    has as its primary purpose collaborative scientific research; and

               (b)    includes as members:

                          (i)    at least 1 university; and

                         (ii)    at least 1 private sector participant;

                        whether or not it also includes government agencies or publicly funded research bodies.

         (3)   In subregulation (2):

private sector participant means an entity that obtains
the majority of its revenue from sources other than Commonwealth, State or Territory appropriations.

Part 2A.2            Change of place of registration of company (Act s 119A (3))

  

2A.2.01  Approval of application for change of place of registration

         (1)   An application to ASIC for a change in the State or Territory in this jurisdiction in which a company is taken to be registered must be approved by a special resolution of the company.

         (2)   A copy of the special resolution must be given to ASIC within 14 days after the day on which it is passed.

2A.2.02  Special resolution may be set aside by Court order

         (1)   Within 28 days after the passing of a special resolution approving an application for a change in the State or Territory in this jurisdiction in which a company is taken to be registered, a member, or members, of the company having at least 10% of the votes capable of being cast on the special resolution may apply in writing to the Court to have the resolution set aside.

         (2)   A member may, with the written consent of other members mentioned in subregulation (1), apply on their behalf to the Court under that subregulation.

         (3)   The Court may order the special resolution to be set aside if the Court is satisfied that it would unfairly prejudice the applicant or applicants if the State or Territory in which the company is taken to be registered were changed in accordance with the resolution.

         (4)   The company must give ASIC a copy of the Court order within 14 days after the day on which it is made.

2A.2.03  Application for change of place of registration

         (1)   A company may, in accordance with a special resolution of the company, apply to ASIC for a change in the State or Territory in this jurisdiction in which the company is taken to be registered.

         (2)   The application must be in accordance with the approved form.

2A.2.04  Change of place of registration

         (1)   On application under regulation 2A.2.03, ASIC must alter the details of the company’s registration to show the change in the State or Territory in this jurisdiction in which the company is taken to be registered if:

                (a)    the company has passed a special resolution approving the application for the change; and

               (b)    the Court has not made an order setting aside the special resolution; and

                (c)    the relevant Minister of the State or Territory in which the company is taken to be registered has approved the change under subparagraph 119A (3) (a) (i) of the Act; and

               (d)    ASIC is not aware of any other reason why the change should not be made.

         (2)   ASIC must not alter details of the company’s registration until 28 days after the day on which the application was made.

         (3)   ASIC must give the company a new certificate of registration after it alters details of the company’s registration.

 

Chapter 2B  Basic features of a company

Part 2B.6            Names

  

2B.6.01  Availability of names (Act s 147)

         (1)   For paragraphs 147 (1) (a) and (b) of the Act, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.

         (2)   For paragraph 147 (1) (c) of the Act, a name is unacceptable for registration under the regulations if it is unacceptable under the rules set out in Part 2 of Schedule 6.

2B.6.02  Consents required for use of certain letters, words and expressions

         (1)   This regulation applies to a name if:

                (a)    the name:

                          (i)    is the subject of an application for registration of a name under section 117 of the Act; or

                         (ii)    is the subject of an application for reservation of a name under section 152 of that Act; or

                        (iii)    for an application for a change of name under section 157 of the Act — is the name to which the previous name is to be changed; and

               (b)    the name is, uses or includes:

                          (i)    letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or

                         (ii)    other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.

         (2)   In paragraph (1) (b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

                (a)    as part of another word or expression; or

               (b)    in combination with other words or letters, or other symbols.

         (3)   However, this regulation does not apply to use of the letters ADI as part of another word.

Example

The letters adi appear in the word traditional.  This regulation does not apply to use of the word traditional.

         (4)   If an item in Part 4 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the Minister who is specified in the item.

         (5)   If an item in Part 5 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

2B.6.03  Exemptions from requirement to set out name and ACN on certain documents (Act s 155)

                For section 155 of the Act, the exemptions provided for in Schedule 7 apply in relation to the requirements of subsection 153 (2) of the Act.

 

Chapter 2C  Registers

Part 2C.1            Registers generally

Division 2C.1.1     Location of register

2C.1.01  Form of notice

                A notice to be lodged under subsection 172 (2) of the Act must be in a form approved by ASIC (if a form has been approved).

Division 2C.1.2     Right to inspect and get copies of register

2C.1.02  Form of register

                For subsection 173 (3) of the Act, a copy of a register must be provided as a delimited text file:

                (a)    produced by a commercially available spreadsheet or database application; and

               (b)    copied onto a CD-ROM or a USB portable memory device.

2C.1.03  Improper purposes for getting copy of register

                For paragraph 173 (3A) (b) of the Act, the following purposes are prescribed:

                (a)    soliciting a donation from a member of a company;

               (b)    soliciting a member of a company by a person who is authorised to assume or use the word stockbroker or sharebroker in accordance with section 923B of the Act;

                (c)    gathering information about the personal wealth of a member of a company;

               (d)    making an offer or invitation to which Division 5A of Part 7.9 of the Act applies.

Note   Division 5A of Part 7.9 of the Act applies to unsolicited offers to purchase financial products off-market.

2C.1.04  Information to be included in application for copy of register

                For paragraph 173 (3A) (c) of the Act, the information that must be contained in an application is the name and address of the applicant.

Note   An application must also state the purpose for accessing a copy of a register — see subsection 173 (3A) of the Act.

Division 2C.1.3     Use of information on registers by bodies corporate

2C.1.05  Contact with members after failure to provide copy of register

         (1)   This regulation applies if a body corporate mentioned in regulation 12.8.02 has failed to give a person a copy of the part of the register of members of the body who hold member shares:

                (a)    within 28 days after the person’s request for a copy; or

               (b)    if a longer period has been allowed by ASIC — within the longer period.

         (2)   If the person:

                (a)    makes a statutory declaration that the person intends to use information that is contained in that part of the register:

                          (i)    for the purpose of contacting members of the body, or sending material to members of the body, for a purpose mentioned in subsection 177 (1A) of the Act; and

                         (ii)    in a way that does not contravene that subsection or another law; and

               (b)    gives the statutory declaration to the body corporate; and

                (c)    pays the reasonable costs of contacting the members, or sending material to the members;

the body corporate must do everything that is reasonably possible to arrange for the members to be contacted, or for the material to be sent to the members, on the person’s behalf by a third party service provider nominated by the body corporate.

         (3)   If the body corporate believes on reasonable grounds that the person intends to use information that is contained in that part of the register:

                (a)    for a purpose that is not in accordance with subparagraph (2) (a) (i); or

               (b)    in a way that is not in accordance with subparagraph (2) (a) (ii);

the body corporate is not required to arrange for the members to be contacted or for the material to be sent to the members on the person’s behalf, and may terminate any existing arrangement.

         (4)   The arrangements made by the body corporate must ensure that, to the extent reasonably possible:

                (a)    the details, from the register of members, of each member to whom material is to be sent, or with whom contact is to be made, will be provided to the third party service provider within 14 days after the person pays the costs mentioned in subregulation (2); and

               (b)    a copy of any material that is to be sent to a member will be provided to the third party service provider within 28 days after the person provides the material to the body corporate; and

                (c)    if material is not to be sent to a member — written details of the contact that is to be made with a member must be provided to the third party service provider within 28 days after the person provides the written details to the body corporate; and

               (d)    for any material that is to be sent to a member — the material will be sent to the member within 14 days after the body corporate provides the material to the third party service provider; and

                (e)    if material is not to be sent to a member — contact will be made with the member within 14 days after the body corporate provides, to the third party service provider, the written details of the contact that is to be made with the member.

         (5)   An arrangement made under subregulation (2) must:

                (a)    allow for contact to be made, or material to be sent,
for a period of 6 months after the period mentioned in subregulation (1); and

               (b)    require the person to pay the reasonable costs of contacting the members or sending material to the members to be paid on each occasion before the contact is made or the material is sent.

         (6)   A reference in subregulation (1) to the register of members of a body corporate who hold member shares includes a reference to:

                (a)    the register of members of a body corporate that is a company limited by guarantee; and

               (b)    the register of members of a body corporate limited by shares and guarantee, who do not hold shares in the body.

Chapter 2D  Officers and employees

Part 2D.2            Restrictions on indemnities, insurance and termination payments

Division 2D.2.2     Termination payments

2D.2.01  Meaning of base salary

         (1)   For the definition of base salary in section 9 of the Act, the matters specified in the following table are base salary.

Item

Matter

1

The components of a short-term employee benefit that:

   (a)  are not dependent on the satisfaction of a performance condition; and

  (b)  are specified in paragraphs (a), (c) and (d) of column 3 of item 6 in the table in subregulation 2M.3.03 (1); and

   (c)  are paid during the relevant period

2

A superannuation contribution that:

   (a)  is not dependent on the satisfaction of a performance condition; and

  (b)  is paid during the relevant period


3

A share-based payment that:

   (a)  is not dependent on the satisfaction of a performance condition; and

  (b)  is specified in column 3 of item 11 in the table in subregulation 2M.3.03 (1); and

   (c)  is paid during the relevant period

4

A liability or prospective liability to pay tax in respect of a fringe benefit taxable amount under:

   (a)  the Fringe Benefits Tax Assessment Act 1986; or

  (b)  the Fringe Benefits Tax Act 1986;

that relates to the provision of a matter specified in item 1, 2 or 3

         (2)   For subregulation (1):

                (a)    if a person has held an office in relation to a company:

                          (i)    throughout a period of more than 12 months; or

                         (ii)    throughout a number of periods of more than 12 months in total;

                        the relevant period for that person is the last 12 months of that period or the last 12 months of the total period; and

               (b)    if a person has held an office in relation to a company:

                          (i)    throughout a period of 12 months or less; or

                         (ii)    throughout a number of periods of 12 months or less in total;

                        the relevant period for that person is that period or the total period.

2D.2.02  Meaning of benefit

         (1)   For paragraph 200AB (1) (e) of the Act, each of the following things is specified:

                (a)    any kind of pension, other than a pension paid from a superannuation fund or a superannuation annuity (whether it is paid from an Australian or a foreign fund);

               (b)    an amount paid as a voluntary out-of-court settlement in a matter relating to the termination of employment;

                (c)    a payment:

                          (i)    that is made as part of a restrictive covenant, restraint-of-trade clause or non-compete clause (however described); and

                         (ii)    the value of which, when added to the value of all other payments (if any) already made or payable in connection with the person’s retirement from board or managerial offices in the company and related bodies corporate, exceeds the payment limit set by section 200G of the Act.

Note   Subsection 200AB (1) of the Act provides that a benefit includes specified things. Paragraph 200AB (1) (e) of the Act provides that a benefit includes a thing specified in regulations. Things that are not specified in subsection 200AB (1) of the Act or subregulation (1) may also be benefits for the purposes of the Act.

         (2)   For subsection 200AB (2) of the Act, each of the following things is specified:

                (a)    a deferred bonus, including a benefit attributable to:

                          (i)    the release of the deferred bonus from a restriction relating to death or incapacity; or

                         (ii)    the investment of the deferred bonus; or

                        (iii)    another change to the value of the deferred bonus;

               (b)    a payment from a defined benefits superannuation scheme that was in existence when this regulation commenced;

                (c)    a genuine superannuation contribution that is paid by an employer or employee on or after the commencement of this regulation;

               (d)    genuine accrued benefits that are payable under a law within the meaning of section 200H of the Act;

                (e)    a payment made under a requirement imposed by a law of another country;

                (f)    a reasonable payment that is made:

                          (i)    in accordance with a policy of the company or body that applies to all employees; and

                         (ii)    as a result of a genuine redundancy; and

                        (iii)    having regard to the length of a person’s service in an office or position;

               (g)    a payment from a prescribed superannuation fund due to death or incapacity.

Example for paragraph (d)

A payment of annual leave, long service leave or sick leave.

Note   Subsection 200AB (2) of the Act provides that a benefit does not include a thing specified in regulations. Things that are not specified in subregulation (2) may also not be benefits for the purposes of the Act.

         (3)   In this regulation:

deferred bonus includes an amount, or property, that:

                (a)    is earned by, accrued by or allocated to a person as remuneration in respect of a period of employment before the person’s retirement; and

               (b)    is not paid, provided or released to the person at the time at which it is earned, accrued or allocated.

prescribed superannuation fund has the meaning given by section 200B of the Act.

2D.2.03  When benefit given in connection with retirement from an office or a position

         (1)   For subsection 200A (1A) of the Act, each of the following circumstances is specified in relation to a benefit:

                (a)    circumstances in which the benefit is the automatic vesting of share-based payments for a person on or as a result of retirement from an office or a position;

               (b)    circumstances in which the benefit is the accelerated vesting of share-based payments for a person on or as a result of retirement from an office or a position; and

                (c)    circumstances in which the benefit is a payment made to a person in lieu of the giving of notice of termination.

Note   Subsection 200A (1A) of the Act provides that a benefit is given in connection with a person’s retirement from an office or a position if the benefit is given in circumstances specified in regulations.

         (2)   For paragraph 200F (1) (b) of the Act, a benefit requires shareholder approval:

                (a)    if it:

                          (i)    is a deferred bonus under paragraph 2D.2.02 (2) (a); and

                         (ii)    is subject to automatic or accelerated vesting under subregulation (1); and

                        (iii)    exceeds the payment limit set by section 200G of the Act; and

               (b)    if it is not a benefit attributable to the release of a deferred bonus from a restriction due to death or incapacity.

Part 2D.6            Disqualification from managing corporations

Division 2D.6.1     Automatic disqualification (Act s 206B)

2D.6.01  Prescribed foreign jurisdictions (Act s 206B (7))

                For section 206B of the Act, a foreign country, or part of a foreign country, mentioned in the following table is prescribed.

Item

Country or part of country

1

New Zealand

Chapter 2E  Related party transactions

  

  

2E.1.01  Small amounts given to related entity

                For subsection 213 (1) of the Act, $5 000 is prescribed.

Chapter 2G  Meetings

Part 2G.2           Meetings of members of companies

Division 6              Proxies and body corporate representatives

2G.2.01  Authentication of appointment of proxy (Act s 250A)

         (1)   For subsection 250A (1) of the Act, an electronic authentication of an appointment of a proxy must include:

                (a)    a method of identifying the member; and

               (b)    an indication of the member’s approval of the information communicated.

         (2)   If a member appoints a proxy by e‑mail or Internet‑based voting:

                (a)    the member must be identified by personal details (for example, the member’s name, address and date of birth); and

               (b)    the member’s approval of the information communicated must be communicated by a form of security protection (for example, the entering of a confidential identification number such as a shareholder registration number or holder identification number).

Chapter 2K  Charges

Part 2K.2            Registration

  

2K.2.01  Lien or charge on crop or wool, or stock mortgage, that is a registrable security: prescribed law  — subsection 262 (5) of the Act

                For subsection 262 (5) of the Act, each of the following laws is a prescribed law of a State or Territory:

NEW SOUTH WALES

                Parts II and III of the Liens on Crops and Wool and Stock Mortgages Act 1898

                Parts 2 and 3 (to the extent that Part 3 applies to agricultural goods mortgages) of the Security Interests in Goods Act 2005

VICTORIA

                Parts VII and VIII of the Instruments Act 1958

QUEENSLAND

                Part II (being provisions that apply in relation to registration of instruments that are stock mortgages, liens upon crops and liens on wool) and Part IV (other than section 24) of the Bills of Sale and Other Instruments Act 1955

                The Liens on Crops of Sugar Cane Act 1931

WESTERN AUSTRALIA

                Sections 7 and 8 and Parts IX, X and XI of the Bills of Sale Act 1899

SOUTH AUSTRALIA

                Liens on Fruit Act, 1923

                Stock Mortgages and Wool Liens Act, 1924

TASMANIA

                Sections 36 of the Bills of Sale Act 1900

                Stock,Wool and Crop Mortgages Act 1930

AUSTRALIAN CAPITAL TERRITORY

                Parts IV and V of the Instruments Act 1933.

2K.2.02  Time period for the provisional registration of charges

                For paragraph 265 (5) (b) of the Act, the period in which a certificate to the effect set out in paragraph 265 (4) (b) of the Act must be produced to ASIC is 90 days after the notice is lodged.

2K.2.03  Charge that is a registrable security: specified law — paragraphs 273A (4) (b), 273B (3) (b) and 273C (3) (b) of the Act

                For paragraphs 273A (4) (b), 273B (3) (b) and 273C (3) (b) of the Act the following law is a specified law of a State or Territory:

NEW SOUTH WALES

                Security Interests in Goods Act 2005

 

Chapter 2L  Debentures

Part 2L.2            Duties of borrower

  

2L.2.01   Register relating to trustees for debenture holders

         (1)   For subsection 283BCA (2) of the Act, ASIC must enter the following details in the register in relation to a trustee for debenture holders:

                (a)    the name and address of the trustee;

               (b)    either:

                          (i)    if the trustee has an ACN — the trustee’s ACN; or

                         (ii)    the trustee’s ABN;

                (c)    the name and address of the borrower who appointed the trustee;

               (d)    the name of the trust for which the trustee has been appointed to act;

                (e)    the day the trust deed was executed.

         (2)   If ASIC receives a notice from a borrower under subsection 283BC (2) of the Act that the trustee has revoked the trust deed, it must amend the register by removing the details entered on the register in relation to the trustee.

Chapter 2M  Financial reports and audit

Part 2M.3           Financial reporting

Division 1              Annual financial reports and directors’ reports

2M.3.01  Disclosures required by notes to consolidated financial statements  — annual financial reports (Act s 295)

         (1)   For paragraph 295 (3) (a) of the Act, if paragraph 295 (2) (b) of the Act applies to a parent entity, the following disclosures are required in the notes to the financial statements of the consolidated entity:

                (a)    current assets of the parent entity;

               (b)    total assets of the parent entity;

                (c)    current liabilities of the parent entity;

               (d)    total liabilities of the parent entity;

                (e)    shareholders’ equity in the parent entity separately showing issued capital and each reserve;

                (f)    profit or loss of the parent entity;

               (g)    total comprehensive income of the parent company;

               (h)    details of any guarantees entered into by the parent entity in relation to the debts of its subsidiaries;

                (i)    details of any contingent liabilities of the parent entity;

                (j)    details of any contractual commitments by the parent entity for the acquisition of property, plant or equipment;

               (k)    comparative information for the previous period for each of paragraphs (a) to (j).

         (2)   The disclosures in subregulation (1) must be calculated in accordance with accounting standards in force in the financial year to which the disclosure relates.

         (3)   In this regulation:

parent entity means a company, registered scheme or disclosing entity that is required by the accounting standards to prepare financial statements in relation to a consolidated entity.

2M.3.03  Prescribed details (Act s 300A)

         (1)   For paragraph 300A (1) (c) of the Act, the details set out in the table relating to a person are prescribed.

 

Item

Condition (if any)

Details

General

1

 

The person’s name

2

 

Each position held by the person in the financial year

3

If the person has held a position mentioned in item 2 for less than the whole financial year

   (a)  The date on which the person began holding the position

  (b)  The date (if any) on which the person ceased to hold the position

4

If there has been a change in the chief executive officer or a director of the entity during the period:

   (a)  starting immediately after the reporting date; and

   (a)  The name of each person involved in the change

  (b)  The position involved

   (c)  The date on which the change occurred

 

  (b)  ending immediately before the date on which the financial report is authorised for issue

 

5

If a person (other than a director or chief executive officer) has retired during the period:

   (a)  starting immediately after the reporting date; and

  (b)  ending immediately before the date on which the financial report is authorised for issue

   (a)  The person’s name

  (b)  The position involved

   (c)  The date on which the retirement took effect

Payments and benefits 

6

Note   See subregulation (2).

The person’s short‑term employee benefits, divided into at least the following components:

   (a)  cash salary, fees and short‑term compensated absences;

  (b)  short‑term cash profit‑sharing and other bonuses;

   (c)  non‑monetary benefits;

  (d)  other short‑term employee benefits

7

Note   See subregulation (2).

The person’s post‑employment benefits, divided into at least the following components:

   (a)  pension and superannuation benefits;

  (b)  other post‑employment benefits

8

Note   See subregulation (2).

The person’s long‑term employee benefits other than benefits mentioned in items 6 and 7, separately identifying any amount attributable to a long‑term incentive plan

9

Note   See subregulation (2).

The person’s termination benefits

10

For any position the person started to hold during the financial year

Payments (if any) made to the person, before the person started to hold the position, as part of the consideration for the person agreeing to hold the position, including:

   (a)  the monetary value of the payment; and

  (b)  the date of the payment

11

Note   See subregulation (2).

Share‑based payments made to the person, divided into at least the following components:

   (a)  equity‑settled share‑based payment transactions, showing separately:

         (i)   shares and units; and

        (ii)   options and rights;

  (b)  cash‑settled share‑based payment transactions;

 

 

   (c)  all other forms of share‑based payment compensation (including hybrids)

Compensation 

12

For each grant of a cash bonus, performance‑related bonus or share‑based payment compensation benefit made to a person, whether part of a specific contract for services or not

The terms and conditions of each grant affecting compensation in the reporting period or a future reporting period, including the following:

   (a)  the grant date;

  (b)  the nature of the compensation granted;

   (c)  the service and performance criteria used to determine the amount of compensation;

 

 

  (d)  if there has been any alteration of the terms or conditions of the grant since the grant date — the date, details and effect of each alteration;

 

 

   (e)  the percentage of the bonus or grant for the financial year that was paid to the person, or that vested in the person, in the financial year;

 

 

   (f)  the percentage of the bonus or grant for the financial year that was forfeited by the person (because the person did not meet the service and performance criteria for the bonus or grant) in the financial year;

 

 

   (g)  the financial years, after the financial year to which the report relates, for which the bonus or grant will be payable if the person meets the service and performance criteria for the bonus or grant;

 

 

  (h)  estimates of the maximum and minimum possible total value of the bonus or grant (other than option grants) for financial years after the financial year to which the report relates

13

For each contract for services between a person and the disclosing entity (or any of its subsidiaries)

Any further explanation that is necessary in addition to those prescribed in paragraph 300A (1) (ba) of the Act and item 12 to provide an understanding of:

 

 

   (a)  how the amount of compensation in the current reporting period was determined; and

 

 

  (b)  how the terms of the contract affect compensation in future periods

14

If the terms of share‑based payment transactions (including options or rights) granted as compensation to key management personnel have been altered or modified by the issuing entity during the reporting period

   (a)  The date of the alteration

  (b)  The market price of the underlying equity instrument at the date of the alteration

   (c)  The terms of the grant of compensation immediately before the alteration, including:

         (i)   the number and class of the underlying equity instruments, exercise price; and

 

 

        (ii)   the time remaining until expiry; and

       (iii)   each other condition in the terms that affects the vesting or exercise of an option or other right

 

 

  (d)  The new terms

   (e)  The difference between:

         (i)   the total of the fair value of the options or other rights affected by the alteration immediately before the alteration; and

 

 

        (ii)   the total of the fair value of the options or other rights immediately after the alteration

15

If options and rights over an equity instrument issued or issuable by the disclosing entity or any of its subsidiaries have been provided as compensation to a person during the reporting period

Note   See subregulation (3).

   (a)  The number of options and the number of rights that:

         (i)   have been granted; and

        (ii)   have vested;

         during the reporting period

  (b)  The terms and conditions of each grant made during the reporting period, including:

         (i)   the fair value per option or right at grant date; and

        (ii)   the exercise price per share or unit; and

 

 

       (iii)   the amount, if any, paid or payable by the recipient; and

       (iv)   the expiry date; and

 

 

        (v)   the date or dates when the options or rights may be exercised; and

       (vi)   a summary of the service and performance criteria that must be met before the beneficial interest vests in the person

16

If an equity instrument that is issued or issuable by the disclosing entity or any of its subsidiaries has been provided as a result of the exercise during the reporting period of options and rights that have been granted as compensation to a person

Note   See subregulation (3).

   (a)  The number of equity instruments

  (b)  If the number of options or rights exercised differs from the number of equity instruments disclosed under paragraph (a) — the number of options or rights exercised

   (c)  The amount paid per instrument

  (d)  The amount unpaid per instrument

         (2)   For items 6, 7, 8, 9 and 11 of the table:

                (a)    the information of the kind described in the item for the previous financial year must also be disclosed in the financial year to which the item relates (to give comparative information for the purposes of the item); but

               (b)    paragraph (a) does not apply in relation to the first financial year in which paragraph 300A (1) (c) of the Act applies in relation to a person.

Note   The effect of paragraph (b) is that no comparative information is required in the first period of reporting on a specific individual.

         (3)   For items 15 and 16 of the table, a disclosure required by the item must:

                (a)    be separated into each class of equity instrument; and

               (b)    identify each class of equity instrument by:

                          (i)    the name of the issuing entity;

                         (ii)    the class of equity instrument; and

                        (iii)    if the instrument is an option or right — the class and number of equity instruments for which it may be exercised.

         (4)   For subregulation (1), a company must apply the requirements of relevant accounting standards when disclosing the information mentioned in the subregulation.

         (5)   In subregulation (1), an expression that is:

                (a)    used in the subregulation; and

               (b)    defined in a relevant accounting standard that is applied for the purpose of disclosing information;

has the meaning given by that accounting standard.

Division 9              Reference of financial report to the Financial Reporting Panel

2M.3.30  Notice to lodging entity of proposed referral of financial report to Financial Reporting Panel by ASIC (Act s 323ED)

                For paragraph 323ED (2) (d) of the Act, Form 2M01 is prescribed.

2M.3.31  Referral of financial report to Financial Reporting Panel by ASIC (Act s 323EF)

                For subsection 323EF (2) of the Act, Form 2M02 is prescribed.

2M.3.32  Referral of financial report to Financial Reporting Panel by lodging entity (Act s 323EI)

                For subsection 323EI (2) of the Act, Form 2M03 is prescribed.

Part 2M.4           Auditor

  

2M.4.01A       Specified practising certificates (Act s 324BE)

                For paragraph 324BE (1) (b) of the Act, the following kinds of practising certificates are specified:

                (a)    the Certificate of Public Practice issued by The Institute of Chartered Accountants in Australia;

               (b)    the Public Practice Certificate issued by CPA Australia Ltd or the National Institute of Accountants.

2M.4.01  Notice of appointment of auditors

                The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC of the appointment by the entity of an auditor of the scheme under section 331AB of the Act within 14 days of the appointment.


 

Part 2M.6           Modification of the operation of Chapter 2M of the Act

  

2M.6.01  Modifications (Act s 343)

                For section 343 of the Act, the operation of Chapter 2M of the Act is modified in accordance with this Part.

2M.6.05  Conduct of auditor — relevant relationships

                The operation of Chapter 2M of the Act in relation to:

                (a)    all companies; and

               (b)    all registered schemes; and

                (c)    all disclosing entities;

is modified as set out in Schedule 5C.

Chapter 2N  Updating ASIC information about companies and registered schemes

Part 2N.2            Extract of particulars

  

2N.2.01  Particulars ASIC may require in an extract of particulars (Act s 346B)

         (1)   For section 346B of the Act, the following particulars are prescribed for a company:

                (a)    ACN;

               (b)    name;

                (c)    address of registered office;

               (d)    address of principal place of business in this jurisdiction;

                (e)    for each director and company secretary:

                          (i)    the person’s name; and 

                         (ii)    the person’s usual residential address, or, if the person is entitled to have an alternative address under subsection 205D (2) of the Act, that alternative address; and

                        (iii)    the person’s date and place of birth;

                (f)    the date of appointment or cessation of each director, secretary or alternate director;         

               (g)    for issued shares:

                          (i)    the classes into which the shares are divided; and

                         (ii)    for each class of share issued:   

                                   (A)     the number of shares in the class; and

                                   (B)     the total amount paid up for the class; and

                                   (C)     the total amount unpaid for the class;

               (h)    for a proprietary company — the names and addresses of:

                          (i)    if the company has 20 or fewer members — all members; or

                         (ii)    if the company has more than 20 members — the top 20 members in each class;

                (i)    for a proprietary company that has a share capital:

                          (i)    the total number of shares in each class held by each of the members mentioned in paragraph (h); and

                         (ii)    whether or not the shares are fully paid; and

                        (iii)    whether or not the shares are beneficially owned;

                (j)    for the ultimate holding company:

                          (i)    its name; and

                         (ii)    either:

                                   (A)     its ACN or ARBN if registered in this jurisdiction; or

                                   (B)     the place at which it was incorporated or formed if not registered in this jurisdiction.

         (2)   For section 346B of the Act, the following particulars are prescribed for a registered scheme:

                (a)    registration number;

               (b)    name;

                (c)    name and ACN of the responsible entity;

               (d)    if the scheme is a managed investment scheme that is a unit trust:

                          (i)    issued interests in the scheme; and

                         (ii)    the classes into which the interests are divided; and

                        (iii)    for each class of interest issued:

                                   (A)     the number of interests in the class; and

                                   (B)     the total amount paid up for the class; and

                                   (C)     the total amount unpaid for the class;

                (e)    if the scheme is a managed investment scheme that is not a unit trust:

                          (i)    issued interests in the scheme; and

                         (ii)    a description of the nature of the interests (for example, interest in a limited partnership, right to participate in a timesharing scheme); and

                        (iii)    the number of the interests; and

                        (iv)    the total amount paid for the interests; and

                         (v)    the total amount unpaid for the interests.

Note   Under section 346B of the Act, ASIC may require a company or responsible entity to provide a prescribed particular in response to an extract of particulars given by ASIC under section 346A.

Part 2N.4            Return of particulars

2N.4.01  Particulars ASIC may require in a return of particulars (Act s 348B)

                For section 348B of the Act, the following particulars are prescribed:

                (a)    the personal details of a director, secretary or alternate director mentioned in subsection 205B (3) of the Act;

               (b)    the date of appointment or cessation of a director, secretary or alternate director;

                (c)    the date of change of name or change of address of a director, secretary or alternate director;

               (d)    evidence that a specified person is (or is not) a director, secretary or alternate director;

                (e)    completion of a declaration indicating that the company is a special purpose company within the meaning of regulation 3 of the Corporations (Review Fees) Regulations 2003;

                (f)    the name of the ultimate holding company;

               (g)    the date on which a company became, or ceased to be, the ultimate holding company;

               (h)    the previous name, or the new name, of the ultimate holding company;

                (i)    the date of issue, cancellation, or transfer of shares;

                (j)    the date of any change to amounts paid on shares;

               (k)    a statement of whether or not shares for one or more members are beneficially owned;

                (l)    the date of any change to beneficial ownership of shares;

              (m)    any of the following information from the share structure table for a class of share:

                          (i)    the share class code;

                         (ii)    the full title of the class of share;

                        (iii)    the total number of shares in the class that have been issued;

                        (iv)    the total amount paid for shares in the class;

                         (v)    the total amount unpaid for shares in the class;

               (n)    the date on which a new member’s name was entered in the register of members;

               (o)    a statement that the company is:

                          (i)    a small proprietary company mentioned in subsection 45A (2) of the Act; or

                         (ii)    a large proprietary company mentioned in subsection 45A (3) of the Act; or

                        (iii)    a foreign controlled small proprietary company mentioned in paragraph 292 (2) (b) of the Act;

               (p)    a statement that the company is listed (or not listed) on a financial market, and the name of the financial market (if any);

               (q)    the new name of the responsible entity in relation to a managed investment scheme;

                (r)    a statement of whether the company or registered scheme complies with subsection 348C (2) or (3) of the Act;

                (s)    information that a company is required to provide under subsection 142 (2), 146 (1), 205B (1) or (4), 254X (1) or 319 (1) of the Act.

Note 1   Under section 348B of the Act, ASIC may require a company or responsible entity to provide a prescribed particular in response to a return of particulars given by ASIC under section 348A.

Note 2   A member, for a managed investment scheme, includes an interest holder or unit holder — see section 9 of the Act.

Chapter 5    External administration

Part 5.1              Arrangements and reconstructions

  

5.1.01     Prescribed information for paragraph 411 (3) (b) and subparagraph 412 (1) (a) (ii) of the Act

         (1)   For paragraph 411 (3) (b) and subparagraph 412 (1) (a) (ii) of the Act, unless ASIC otherwise allows, the explanatory statement must:

                (a)    for a proposed arrangement between a Part 5.1 body and its creditors, or a class of its creditors:

                          (i)    state the matters set out; and

                         (ii)    have annexed to it the reports and copies of documents mentioned;

                        in Part 2 of Schedule 8; and

               (b)    for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, other than a proposed arrangement mentioned in paragraph (c):

                          (i)    state the matters set out; and

                         (ii)    have annexed to it the reports and copies of documents mentioned;

                        in Part 3 of Schedule 8; and

                (c)    for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, in relation to the reconstruction of a corporation, or the amalgamation of 2 or more corporations, if:

                          (i)    the whole or part of the undertaking or of the property of a corporation is to be transferred to a trustee to be held beneficially on behalf of the unit holders of the trust; or

                         (ii)    the shares in the corporation that are held by members are to be cancelled and control is to pass to a trustee to be held on behalf of a unit holder of the trust;

                        state the matters set out and have annexed to it the documents and, if the trustee of that business operates no other business in relation to that trust, the reports mentioned, in Part 4 of Schedule 8.

         (2)   For the purposes of Schedule 8, securities exchange means Australian Stock Exchange Limited.

5.1.02     Giving notice under subsection 414 (2) or (9) of the Act

                A notice under subsection 414 (2) or (9) of the Act must be given to a person:

                (a)    by personal delivery; or

               (b)    by prepaid post to the person’s address shown in the books of the transferor company.


 

Part 5.2              Receivers, and other controllers, of corporations

  

5.2.01     Controller’s notice to owner or lessor of property — how given

                A notice under subsection 419A (3) of the Act must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner’s or lessor’s usual place of residence or business or the place of residence or business last known to the controller.

5.2.01     Certified copies of reports

                A copy of:

                (a)    a report that must be lodged; and

               (b)    a certificate or other document annexed to that report;

must be certified in writing to be a true copy by:

                (c)    for a copy lodged for paragraph 429 (2) (c) of the Act — the controller of property of the corporation; or

                (f)    for a copy lodged for subsection 475 (7) of the Act — by the liquidator or provisional liquidator of the company.


 

Part 5.3A            Administration of a company’s affairs with a view to executing a deed of company arrangement

  

5.3A.01  Administrator’s notice of ending of administration

         (1)   If the administration of a company ends on the happening
of an event of a kind mentioned in subsection 435C (2) or (3) of the Act, the administrator of the company or of the deed
of company arrangement (as the case may be) must lodge a notice of the happening of the event and the ending of the administration of the company as soon as practicable after the event.

         (2)   Subregulation (1) does not apply if a notice of the happening of the event is lodged in accordance with the Act or a provision of these regulations other than this regulation.

5.3A.02  Administrator to specify voidable transactions in statement

                The administrator of a company under administration, in setting out his or her opinions in a statement mentioned in paragraph 439A (4) (b) of the Act, must specify whether there are any transactions that appear to the administrator to be voidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator under Part 5.7B of the Act.

5.3A.03  Administrator to lodge notice of appointment

                If an administrator is appointed under subsection 436E (4), subsection 444A (2), section 449B, subsection 449C (1), (4) or (6), or subsection 449D (1) or (2), of the Act, the administrator must lodge a notice of the appointment in the prescribed form before the end of the next business day after the appointment.

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in this regulation is not prescribed in these Regulations.

5.3A.04  Notice of change of administrator’s address

                An administrator of a company under administration or of a deed of company arrangement must, within 10 business days after a change in the location of the administrator’s office, lodge notice in the prescribed form of the change.

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in this regulation is not prescribed in these Regulations.

5.3A.05  Administrator’s notice to owner or lessor of property — how given

                A notice under subsection 443B (3) of the Act must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner’s or lessor’s usual place of residence or business or the place of residence or business last known to the administrator.

5.3A.06  Provisions included in deed of company arrangement

                For subsection 444A (5) of the Act, the prescribed provisions are those set out in Schedule 8A.

5.3A.07  Administrator becomes liquidator — additional cases

         (1)   For subsection 446B (1) of the Act, a company that has executed a deed of company arrangement is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:

                (a)    if the Court at a particular time makes an order under section 445D of the Act terminating the deed of company arrangement; or

               (b)    if the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up — if those circumstances exist at a particular time.

         (2)   The company is taken to have passed the special resolution:

                (a)    at the time mentioned in paragraph (1) (a) or (b), as the case may be; and

               (b)    without a declaration having been made and lodged under section 494 of the Act.

         (3)   Section 497 of the Act is taken to have been complied with in relation to the winding up.

         (5)   The liquidator must:

                (a)    within 5 business days after the day on which the company is taken to have passed the resolution, lodge a written notice in the prescribed form stating that the company is taken because of this regulation to have passed such a resolution and specifying that day; and

               (b)    cause a notice of that kind to be published, within 15 business days after that day:

                          (i)    in a national newspaper; or

                         (ii)    in each State or Territory in which the company
has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in paragraph (5) (a) is not prescribed in these Regulations.

         (6)   Section 482 of the Act applies in relation to the winding up as if it were a winding up in insolvency or by the Court.

Note   Section 482 of the Act empowers the Court to stay or terminate a winding up and to give consequential directions.

         (7)   An application under section 482 of the Act as applying because of subregulation (6) may be made:

                (a)    despite subsection 499 (4) of the Act, by the company pursuant to a resolution of the board; or

               (b)    by the liquidator; or

                (c)    by a creditor; or

               (d)    by a contributory.


 

Part 5.4              Winding up in insolvency

  

5.4.01     Application to Court for winding up — prescribed agency

                The Australian Prudential Regulation Authority is a prescribed agency for paragraph 459P (1) (g) of the Act.

5.4.02     Compromise of debt by liquidator — prescribed amount

                For paragraph 477 (2A) (a) of the Act, the amount of $100,000 is prescribed.


 

Part 5.6              Winding up generally

  

5.6.01     Matters for entry in liquidator’s or provisional liquidator’s books

                For section 531 of the Act, the prescribed matters are those that are required to give a complete and correct record of the liquidator’s or provisional liquidator’s administration of the company’s affairs.

5.6.02     Inspection of books kept under section 531 of the Act

                The liquidator or provisional liquidator must ensure that the books kept under section 531 of the Act are available at his or her office for inspection in accordance with that section.

5.6.06     Payment into liquidator’s general account

         (1)   A liquidator must:

                (a)    unless otherwise directed by the Court or the committee of inspection — open a bank account to be known as the liquidator’s general account; and

               (b)    pay into that account all money received by the liquidator not later than 7 days after it has been received.

         (2)   However, if the liquidator is the liquidator of a pooled group:

                (a)    subregulation (1) does not require the liquidator to open a separate account for each company in the group; and

               (b)    the liquidator may open a single bank account (to be known as the liquidator’s general account) in relation to the group and pay into the account all money received by the liquidator in relation to the liquidation of the companies in the group.

5.6.07     Deposit of securities

                A liquidator must deposit in the bank with which the liquidator’s general account was opened:

                (a)    the bills; and

               (b)    the notes; and

                (c)    any other securities;

payable to the company (or to any of the companies in a pooled group if paragraph 5.6.06 (2) (b) applies) or the liquidator as soon as possible after they are received by the liquidator.

5.6.08     Delivery of securities

                All bills, notes or other securities deposited in a bank in accordance with regulation 5.6.07 must be delivered out on the signed request of the liquidator.

5.6.09     Special bank account

         (1)   The Court may give directions regarding the payment, deposit or custody of:

                (a)    money; and

               (b)    bills, notes or other securities;

that are payable to, or into the possession of, a liquidator.

         (2)   If an application is made to the Court to authorise the liquidator to make payments into and out of a special bank account, the Court may:

                (a)    authorise the payments for the time and on the terms as it thinks fit; and

               (b)    if the Court thinks that the account is no longer required — at any time order it to be closed.

         (3)   An office copy of an order under subregulation (2) must be served by the liquidator on the bank with which the special bank account has been opened.

5.6.10     Payments out of liquidator’s general account

         (1)   A payment out of the liquidator’s general account may be made by cheque or by electronic funds transfer.

         (2)   A cheque to which subregulation (1) refers must:

                (a)    have the name of the company marked or written on the face of it; and

               (b)    be signed by the liquidator.

5.6.11     Application

         (1)   In regulations 5.6.12 to 5.6.57, unless the contrary intention appears:

proof of debt or claim includes a statement of particulars of a debt or claim submitted in accordance with regulation 5.6.39, as well as a formal proof of debt or claim.

         (2)   Subject to subregulation (3) and subregulation 5.6.24 (4), regulations 5.6.12 to 5.6.36A apply to the convening and conduct of, and voting at:

                (a)    a meeting convened under Part 5.3A, 5.4, 5.4B, 5.5 or 5.6 of the Act that is:

                          (i)    a meeting of members, creditors or contributories of a company; or

                         (ii)    a joint meeting of creditors and members of a company; or

                        (iii)    a meeting of a committee of inspection; or

                        (iv)    a meeting of a committee of creditors; or

                         (v)    a meeting of eligible employee creditors; or

                        (vi)    a meeting, on a consolidated basis, of creditors of companies in a group; and

               (b)    a meeting of creditors of a company held under a deed of company arrangement.

         (3)   Regulations 5.6.12 to 5.6.36A do not apply to:

                (a)    a meeting of the directors of a company; or

               (b)    a meeting of the members of a company, other than a meeting mentioned in paragraph (2) (a); or

                (c)    if those regulations are inconsistent with a particular requirement of the Act, these Regulations or the rules — a meeting mentioned in paragraph (2) (a) or (b).

5.6.11A  Electronic methods of giving or sending certain notices etc

         (1)   This regulation applies if a person (the notifier) is authorised or required to give or send a notice, or other document, to a person (the recipient) under any of the following provisions:

                (a)    subregulation 5.6.12 (1);

               (b)    subregulation 5.6.16 (6);

                (c)    paragraph 5.6.48 (2) (b);

               (d)    subregulation 5.6.53 (1);

                (e)    subregulation 5.6.54 (1);

                (f)    subregulation 5.6.55 (3);

               (g)    subregulation 5.6.59 (1);

               (h)    subregulation 5.6.62 (1);

                (i)    paragraph 5.6.65 (1) (b);

                (j)    paragraph 5.6.66 (1) (d);

               (k)    paragraph 5.6.66 (3) (a).

         (2)   If the recipient nominates an electronic address by which the recipient may be notified of the notice or document, the notifier may give or send the notice or document to the recipient by sending it to that electronic address.

         (3)   If the recipient nominates any other electronic means by which the recipient may be notified of such notices or documents, the notifier may give or send the notice or document to the recipient by using that electronic means.

         (4)   If the recipient nominates:

                (a)    an electronic means (the nominated notification means) by which the recipient may be notified that such notices or documents are available; and

               (b)    an electronic means (the nominated access means) the recipient may use to access such notices or documents;

the notifier may give or send the document to the recipient by notifying the recipient (using the nominated notification means):

                (c)    that the notice or document is available; and

               (d)    how the recipient may use the nominated access means to access the notice or document.

         (5)   A notice or document sent to an electronic address, or by other electronic means, is taken to be given or sent on the business day after it is sent.

         (6)   A notice or document given or sent under subsection (4) is taken to be given or sent on the business day after the day on which the recipient is notified that the notice or document is available.

         (7)   Subregulations (2), (3) and (4) do not limit the provisions mentioned in subsection (1).

5.6.12     Notice of meeting

         (1)   The convenor of a meeting must give notice in writing of the meeting to every person appearing on the company’s books or otherwise to be:

                (a)    in the case of a meeting mentioned in subparagraph 5.6.11 (2) (a) (i) — a member, creditor or contributory of the company; or

               (b)    in the case of a meeting mentioned in subparagraph 5.6.11 (2) (a) (ii) — a member or creditor of the company; or

                (c)    in the case of a meeting mentioned in subparagraph 5.6.11 (2) (a) (iii) — a member of the committee of inspection; or

               (d)    in the case of a meeting mentioned in subparagraph 5.6.11 (2) (a) (iv) — a member of the committee of creditors; or

                (e)    in the case of a meeting mentioned in paragraph 5.6.11 (2) (b) — a creditor of the company; or

                (f)    in the case of a meeting mentioned in subparagraph 5.6.11 (2) (a) (v) — an eligible employee creditor; or

               (g)    in the case of a meeting mentioned in subparagraph 5.6.11 (2) (a) (vi) — the creditors of a company in a group.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (2)   The notice must be given to a person:

                (a)    by delivering it personally; or

               (b)    by sending it to the person by prepaid post; or

                (c)    if the person has a facsimile transmission number to which notices may be sent to the person — by faxing it to the person at that number; or

               (d)    if the person has a document exchange number to which notices may be sent to the person — by lodging it with the exchange at, or for delivery to, the person’s receiving facilities identified by that number.

         (3)   The notice must be given not less than 10 business days before the day of the meeting, except:

                (a)    in the case of a meeting of creditors under section 436E, 439A or 445F, or subsection 449C (4), of the Act; or

               (b)    as provided by subregulation (4) or (5).

         (4)   If a liquidator thinks it appropriate, he or she may convene a meeting of a committee of inspection by giving less than 10 business days’ notice of the meeting in accordance with subregulations (1) and (2).

         (5)   If the administrator of a company under administration thinks it appropriate, he or she may convene a meeting of a committee of creditors or a meeting of eligible employee creditors by giving less than 10 business days’ notice of the meeting in accordance with subregulations (1) and (2).

         (6)   The notice mentioned in subregulation (1) must be:

                (a)    if convening a meeting of creditors under subsection 496 (1) of the Act — in accordance with Form 521; or

               (b)    if convening a meeting of creditors under section 436E of the Act — in accordance with Form 529A; or

                (c)    in any other case — in accordance with Form 529.

         (7)   A notice of a joint meeting of the creditors and members of a company must be sent to the creditors of the company at the same time as it is sent to the members of the company.

         (8)   A notice to a creditor must be sent by the person convening the meeting:

                (a)    to the address given by the creditor in his or her proof of debt or claim; or

               (b)    if the creditor has not lodged a proof, to the address given in the report on the affairs of the company; or

                (c)    to any other address known to the person.

         (9)   A notice of a meeting must be sent by the convenor of the meeting:

                (a)    to the address given in the company’s books as the address of that person; or

               (b)    to any other address known to the person convening the meeting.

5.6.13     Proof of notice

                A statement in writing in accordance with Form 530 by:

                (a)    the person convening a meeting; or

               (b)    a person acting on his or her behalf;

                that notice of the meeting was sent by prepaid post is, in the absence of evidence to the contrary, sufficient proof of the notice having been sent to a person at the address specified for that person in that notice.

5.6.13A  If telephone conference facilities are available

                If telephone conference facilities are expected to be available
at the place where the meeting is to be held and the convenor of the meeting considers that, having regard to all the circumstances, it will be appropriate to use those facilities, the notice of the meeting must:

                (a)    set out the relevant telephone number; and

               (b)    indicate that a person, or the proxy or attorney of a person, who wishes to participate in the meeting by telephone must give to the convenor, not later than the second‑last working day before the day on which the meeting is to be held, a written statement setting out:

                          (i)    the name of the person and of the proxy or attorney (if any); and

                         (ii)    an address to which notices to the person, proxy or attorney may be sent; and

                        (iii)    a telephone number at which the person, proxy or attorney may be contacted; and

                        (iv)    any facsimile transmission number to which notices to the person, proxy or attorney may be sent; and

                (c)    indicate that a person, or the proxy or attorney of a person, who participates in the meeting by telephone must pay any costs incurred by the person, proxy or attorney in participating and is not entitled to be reimbursed for those costs from the assets of the company.

5.6.13B  Persons, or their proxies or attorneys, participating by telephone

         (1)   If a person, or a person’s proxy or attorney, who wishes to participate in a meeting by means of telephone conference facilities, has given the convenor of the meeting a statement in accordance with regulation 5.6.13A, the convenor must take all reasonable steps to ensure that the person, or the person’s proxy or attorney, is contacted before the start of the meeting on the telephone number provided by that person.

         (2)   If the person, proxy or attorney is contacted, the convenor must take all reasonable steps to ensure that the person, proxy or attorney can hear the proceedings, and can be heard, by means of those facilities, so that the person, proxy or attorney can participate in the meeting.

         (3)   A person who, or whose proxy or attorney, participates in the meeting by telephone in accordance with this regulation is taken to be present in person at the meeting.

5.6.14     Time and place of meeting

         (1)   The convenor of a meeting must convene the meeting at the time and place that he or she thinks are most convenient for the majority of persons entitled to receive notice of the meeting.

         (2)   The convenor must give not less than 5 business days’ notice of the time and place of the meeting, except in the case of:

                (a)    a meeting of creditors under section 436E, 439A or 445F, or subsection 449C (4), of the Act; or

               (b)    a meeting of a committee of creditors; or

                (c)    a meeting of a committee of inspection.

         (3)   Subregulation (1) does not prevent the convenor convening a meeting to take place at separate venues provided that technology is available at the venues to give all persons attending the meeting a reasonable opportunity to participate.

5.6.14A  Advertisement of a meeting

         (1)   The convenor of a meeting must advertise the meeting in each State and Territory in which the company carries on business, or has carried on business at any time during the 2 years immediately before the day of the meeting, in a daily newspaper circulating generally in that State or Territory.

         (2)   However, subregulation (1) does not apply if

                (a)    the meeting is convened under subsection 445F (2) of the Act; or

               (b)    the meeting is a meeting of eligible employee creditors mentioned in paragraph 444DA (2) (a) of the Act.

5.6.14B  Meetings not convened in accordance with regulations

                A meeting may be held if all the persons who are entitled to be present at, and to vote at, the meeting agree, even if it has not been convened in accordance with these regulations.

5.6.15     Costs of convening meetings of creditors etc

         (1)   A person (other than a liquidator or administrator of a company under administration or of a deed of company arrangement) at whose request a meeting of creditors or contributories is convened must:

                (a)    if the liquidator or administrator requires a security for the payment of costs before the meeting is convened — deposit with the liquidator or administrator a sum of money; and

               (b)    pay the costs of convening the meeting.

         (2)   The costs of convening a meeting of a committee of inspection or a committee of creditors must be repaid out of the assets of the company to the person causing it to be convened if:

                (a)    the Court so orders; or

               (b)    the committee by resolution so directs.

5.6.16     Quorum

         (1)   Subject to subregulation (3), a meeting must not act for any purpose except:

                (a)    the election of a chairperson; and

               (b)    the proving of debts; and

                (c)    the adjournment of the meeting;

unless a quorum is present.

         (2)   A quorum consists of:

                (a)    if the number of persons entitled to vote exceeds 2 — at least 2 of those persons; or

               (b)    if only one person is, or 2 persons are, entitled to vote — that person or those persons;

present in person or by proxy or attorney.

         (3)   A meeting is sufficiently constituted if only one person is present in person at the meeting if the person represents personally or by proxy or otherwise a number of persons sufficient to constitute a quorum.

         (4)   If within 30 minutes after the time appointed for a meeting:

                (a)    a quorum is not present; or

               (b)    the meeting is not otherwise sufficiently constituted;

the meeting is adjourned:

                (c)    to the same day in the next week at the same time and place; or

               (d)    to the day (not being less than 7 or more than 21 days after the day on which the meeting is adjourned) and at the time and place that the chairperson appoints.

         (6)   The convenor of the meeting, or a person nominated by the convenor, must immediately give notice of the adjournment to the persons to whom notice of the meeting must be given under regulation 5.6.12.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (7)   A meeting on the date and at the place to which the meeting is adjourned is not to be taken to be incompetent to act only because of a failure to comply with subregulation (6) unless the Court, on the application of the convenor of the meeting, or of a creditor or contributory, otherwise declares.

         (8)   If within 30 minutes after the time appointed for the adjourned meeting:

                (a)    a quorum is not present; or

               (b)    the meeting is not otherwise sufficiently constituted;

the adjourned meeting lapses.

5.6.17     Chairperson

         (1)   If a meeting is convened by:

                (a)    a liquidator; or

               (b)    a provisional liquidator; or

                (c)    an administrator of the company under administration or of a deed of company arrangement; or

               (d)    a liquidator mentioned in paragraph 579L (1) (e) of the Act;

that person, or a person nominated by that person, must chair the meeting.

         (2)   In any other case, the persons present and entitled to vote at a meeting must elect one of their number to be chairperson of the meeting.

5.6.18     Adjournment of meeting

         (1)   The chairperson of a meeting:

                (a)    if so directed by the meeting — must; or

               (b)    with the consent of the meeting — may;

adjourn the meeting from time to time and from place to place.

         (2)   A meeting convened under section 439A of the Act must not be adjourned to a day that is more than 45 business days after the first day on which the meeting was held.

         (3)   An adjourned meeting must be held at the place of the original meeting unless:

                (a)    the resolution for adjournment specifies another place; or

               (b)    the Court otherwise orders; or

                (c)    the liquidator or provisional liquidator, or the administrator of a company under administration or of a deed of company arrangement, otherwise orders; or

               (d)    the place of the original meeting is unavailable, in which case the chairperson may appoint another place.

5.6.19     Voting on resolutions

         (1)   A resolution put to the vote of a meeting must be decided on the voices unless, subject to subregulation (5), a poll is demanded, before or on the declaration of the result of the voices:

                (a)    by the chairperson; or

               (b)    by at least 2 persons present in person, by proxy or by attorney and entitled to vote at the meeting; or

                (c)    by a person present in person, by proxy or by attorney and representing not less than 10% of the total voting rights of all the persons entitled to vote at the meeting; or

               (d)    in the case of a meeting of members — by a member or members holding shares in the company conferring a right to vote at a meeting, being shares on which the total sum paid up is not less than 10% of the total sum paid up on all the shares conferring that right.

         (2)   Unless a poll is demanded, the chairperson must declare that a resolution has been:

                (a)    carried; or

               (b)    carried unanimously; or

                (c)    carried by a particular majority; or

               (d)    lost;

on the voices.

         (3)   A declaration is conclusive evidence of the result to which it refers, without proof of the number or proportion of the votes recorded in favour of or against the resolution, unless a poll is demanded.

         (4)   A demand for a poll may be withdrawn.

         (5)   A vote taken at a joint meeting of creditors and members of a company must be decided on the voices.

         (6)   If a creditor of a company, by contract, surrenders or limits all or some of his or her rights to vote at a meeting of creditors, then the creditor must not vote except in accordance with the contract and any vote which is not in accordance with the contract will not be counted.

5.6.20     Taking a poll

         (1)   Subject to subregulation (2), if a poll is demanded:

                (a)    the manner in which it is to be taken; and

               (b)    the time at which it is to be taken;

must be determined by the chairperson.

         (2)   A poll demanded on the election of a chairperson or on a question of adjournment must be taken at once.

5.6.21     Carrying of resolutions after a poll has been demanded at a meeting of creditors

         (1)   This regulation applies to a poll taken at a meeting of creditors.

         (2)   A resolution is carried if:

                (a)    a majority of the creditors voting (whether in person, by attorney or by proxy) vote in favour of the resolution; and

               (b)    the value of the debts owed by the corporation to those voting in favour of the resolution is more than half the total debts owed to all the creditors voting (whether in person, by proxy or by attorney).

         (3)   A resolution is not carried if:

                (a)    a majority of creditors voting (whether in person, by proxy or by attorney) vote against the resolution; and

               (b)    the value of the debts owed by the corporation to those voting against the resolution is more than half the total debts owed to all creditors voting (whether in person, by proxy or by attorney).

         (4)   Subject to subregulation (4B), if no result is reached under subregulation (2) or (3), then:

                (a)    the person presiding at the meeting may exercise a casting vote in favour of the resolution, in which case the resolution is carried; or

               (b)    the person presiding at the meeting may exercise a casting vote against the resolution, in which case the resolution is not carried; or

                (c)    if the person presiding at the meeting does not exercise a casting vote, the resolution is not carried.

      (4A)   If no result is reached under subregulation (2) or (3), and the meeting is not a meeting of eligible employee creditors, the person presiding at the meeting must include in the minutes of the meeting the reasons for exercising, or not exercising, as the case may be, a casting vote under subregulation (4).

      (4B)   In the case of a meeting of eligible employee creditors mentioned in paragraph 444DA (2) (a) of the Act, if no result is reached under subregulation (2) or (3), the resolution is not carried.

         (5)   In this regulation

creditor includes a debenture holder.

5.6.22     Carrying of resolution after a poll has been demanded at a meeting of contributories or members

         (1)   This regulation applies to a poll taken at a meeting of contributories or members.

         (2)   In counting the majority on a poll demanded on the question that a resolution be carried, regard must be made to:

                (a)    the number of votes cast for or against the resolution; and

               (b)    the number of votes to which each member is entitled by the Act or the articles of the company.

         (3)   The chairperson of the meeting has a casting vote in addition to his or her deliberative vote.

5.6.23     Creditors who may vote

         (1)   A person is not entitled to vote as a creditor at a meeting of creditors unless:

                (a)    his or her debt or claim has been admitted wholly or in part by the liquidator or administrator of a company under administration or of a deed of company arrangement; or

               (b)    he or she has lodged, with the chairperson of the meeting or with the person named in the notice convening the meeting as the person who may receive particulars of the debt or claim:

                          (i)    those particulars; or

                         (ii)    if required — a formal proof of the debt or claim.

         (2)   A creditor must not vote in respect of:

                (a)    an unliquidated debt; or

               (b)    a contingent debt; or

                (c)    an unliquidated or a contingent claim; or

               (d)    a debt the value of which is not established;

unless a just estimate of its value has been made.

         (3)   A creditor must not vote in respect of:

                (a)    a debt or a claim on or secured by:

                          (i)    a bill of exchange; or

                         (ii)    a promissory note; or

                        (iii)    any other negotiable instrument or security;

held by the creditor unless he or she is willing:

               (b)    to treat the liability to him or her on the instrument or security of a prescribed person as a security in his or her hands; or

                (c)    to estimate its value; and

               (d)    for the purposes of voting (but not for the purposes of dividend), to deduct it from his or her debt or claim.

         (4)   For paragraph 5.6.23 (3) (b), a prescribed person is a person whose liability is mentioned in paragraph 5.6.23 (3) (a) who:

                (a)    is liable to the company directly; or

               (b)    may be liable to the company on the default of another person with respect to the liability;

at the time of voting, but who is not:

                (c)    an insolvent under administration; or

               (d)    a person against whom a winding up order is in force.

5.6.23A  Voting status of persons by whom money is advanced to a company

         (1)   For this Part, a person by whom money is advanced to a company as described in section 560 of the Act is entitled to one vote at a meeting of creditors.

         (2)   Subregulation (1) applies whether the person has advanced money to the company:

                (a)    on 1 occasion only; or

               (b)    on more than 1 occasion in respect of the same matter; or

                (c)    on 1 or more occasions in respect of more than 1 matter.

Note   Paragraph 560 (c) of the Act provides that a person by whom money is advanced to a company in specified circumstances has the same rights as a creditor of the company in relation to matters set out in Chapter 5 of the Act. This includes voting at a meeting of creditors of the company.

5.6.24     Votes of secured creditors

         (1)   For the purposes of voting, a secured creditor must state in the creditor’s proof of debt or claim:

                (a)    the particulars of his or her security; and

               (b)    the date when it was given; and

                (c)    the creditor’s estimate of the value of the security;

unless he or she surrenders the security.

         (2)   A creditor is entitled to vote only in respect of the balance, if any, due to him or her after deducting the value of his or her security as estimated by him or her in accordance with regulation 5.6.41.

         (3)   If a secured creditor votes in respect of his or her whole debt or claim, the creditor must be taken to have surrendered his or her security unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.

         (4)   This regulation does not apply to:

                (a)    a meeting of creditors convened under Part 5.3A of the Act; or

               (b)    a meeting held under a deed of company arrangement.

5.6.26     Admission and rejection of proofs for purposes of voting

         (1)   The chairperson of a meeting has power to admit or reject a proof of debt or claim for the purposes of voting.

         (2)   If the chairperson is in doubt whether a proof of debt or claim should be admitted or rejected, he or she must mark that proof as objected to and allow the creditor to vote, subject to the vote being declared invalid if the objection is sustained.

         (3)   A decision by the chairperson to admit or reject a proof of debt or claim for the purposes of voting may be appealed against to the Court within 10 business days after the decision.

5.6.27     Minutes of meeting

         (1)   The chairperson must, within the period specified in subregulation (7):

                (a)    cause minutes of the proceedings to be drawn up and entered in a record kept for the purpose; and

               (b)    sign the minutes after they have been entered in the record.

      (1A)   However, if the meeting is held on a consolidated basis, subregulation (1) does not require the chairperson to draw up and enter separate minutes for each of the companies to which the meeting relates.

         (2)   A record of the persons present in person, by proxy or by attorney at a meeting must be prepared and kept:

                (a)    if the meeting is of members or contributories — in accordance with Form 531A; and

               (b)    if the meeting is of creditors, eligible employee creditors or debenture holders — in accordance with Form 531B; and

                (c)    if the meeting is of a committee of inspection or a committee of creditors — in accordance with Form 531C.

         (3)   The chairperson at a meeting (other than a meeting of holders of debentures) must lodge a copy of the minutes of the meeting certified by him or her to be a true copy within the period specified in subregulation (7).

      (3A)   However, if the meeting is held on a consolidated basis, subregulation (1) does not require the chairperson to lodge separate copies of the minutes for each of the companies to which the meeting relates.

         (4)   If the chairperson:

                (a)    dies without having signed the minutes as required by subregulation (1), or without having lodged a certified copy of the minutes as required by subregulation (3); or

               (b)    becomes incapable, whether through illness or other cause, of signing the minutes as required by subregulation (1), or of lodging a certified copy of the minutes as required by subregulation (3);

the convenor of the meeting, if he or she attended the meeting, or a creditor, member or contributory who attended the meeting, may sign the minutes as required by subregulation (1) and may certify and lodge a copy of the minutes as required by subregulation (3).

         (5)   The administrator of a company under administration or of a deed of company arrangement, after a meeting of creditors, must cause:

                (a)    the minutes; and

               (b)    the record of persons present at the meeting;

prepared in accordance with this regulation to be made available for inspection by creditors or members at the registered office or principal place of business of the company in this jurisdiction.

         (6)   The liquidator must cause:

                (a)    the minutes; and

               (b)    the record of persons present at the meeting;

prepared under this regulation to be made available at the principal place at which he or she practises, for inspection by creditors or contributories.

         (7)   For subregulations (1) and (3), the specified period is:

                (a)    for a meeting other than a meeting convened under section 436E or 439A of the Act — 1 month after the end of the meeting; or

               (b)    for a meeting convened under section 436E or 439A of the Act — 10 business days after the end of the meeting.

5.6.28     Appointment of proxies

         (1)   A person entitled to attend and vote at a meeting may appoint a natural person over the age of 18 years as his or her proxy to attend and vote at the meeting.

         (2)   Subject to subregulation (3) and to regulation 5.6.30, a proxy appointed under this regulation has the same right to speak and vote at the meeting as the person who appointed the proxy.

         (3)   If a person claims to be:

                (a)    the proxy of a person, appointed by an instrument of appointment mentioned in subregulation 5.6.29 (2); and

               (b)    entitled to attend and vote at a meeting;

the person is not entitled to speak or vote as proxy at the meeting (except in relation to the election of a chairperson) unless:

                          (i)    the instrument; or

                         (ii)    a facsimile copy of the instrument; or

                        (iii)    a copy of the instrument sent by email or similar electronic means;

has been lodged with the person named in the notice convening the meeting as the person who is to receive the instrument, or with the chairperson.

         (4)   If a person claims to be:

                (a)    the proxy of a person, appointed by an instrument completed in a way that allows it to be given by electronic means as described in subregulation 5.6.29 (3); and

               (b)    entitled to attend and vote at a meeting;

the person is not entitled to speak or vote as proxy at the meeting (except in relation to the election of a chairperson) unless the instrument has been given by electronic means to the person named in the notice convening the meeting as the person who is to receive the instrument, or with the chairperson.

5.6.29     Form of proxies

         (1)   The appointment of a person as a proxy must be by:

                (a)    an instrument in accordance with Form 532, completed in hard copy in compliance with subregulation (2); or

               (b)    if the person convening the meeting offers an electronic address under paragraph 5.6.31 (2) (a) for the purpose of the receipt of proxy appointments — a copy of the instrument mentioned in paragraph (a), the copy made in a way that allows it to be given by electronic means (such as by email); or

                (c)    if the person convening the meeting offers other electronic means under paragraph 5.6.31 (2) (b) by which a person may give the proxy appointment — an electronic representation equivalent to Form 532 (such as an on‑line Form) that may be completed and authenticated in compliance with subregulation (3).

         (2)   If Form 532 is to be completed in hard copy:

                (a)    the person appointing the proxy must sign the instrument of proxy, or, if incapable of writing, attach his or her mark to it; and

               (b)    the proxy of a person who is blind or incapable of writing must not be accepted unless:

                          (i)    the person attaches his or her signature or mark to the instrument appointing the proxy after it has been completed; and

                         (ii)    the instrument is read to him or her by a witness to his or her signature or mark (not being the person nominated as proxy) who completes the certificate of witness set out in Form 532.

Note 1   Form 532 may be lodged by facsimile after being completed in hard copy: see subregulation 5.6.28 (3).

Note 2   Form 532 may be lodged by email or similar means, in certain circumstances, after being completed in hard copy: see paragraph (1) (b).

         (3)   If Form 532 is to be completed in a way that allows it to be given by electronic means, the electronic authentication of the appointment of the proxy must include:

                (a)    a method of identifying the person entitled to appoint a proxy; and

               (b)    an indication of the person’s approval of the information communicated.

         (4)   In this regulation, electronic means does not include a facsimile transmission.

5.6.30     Instruments of proxy

                An instrument appointing a proxy may specify the manner in which the proxy is to vote on a particular resolution, and the proxy is not entitled to vote on the resolution except as specified in the instrument.

5.6.31     Proxy forms to accompany notice of meetings

         (1)   A person convening a meeting must:

                (a)    send a form of proxy with each notice of the meeting; and

               (b)    ensure that neither the name or description of any person is printed or inserted in the body of the form of proxy before it is sent out.

         (2)   The form of proxy may specify:

                (a)    an electronic address for the purpose of the receipt of proxy appointments; and

               (b)    other electronic means by which a person may give the proxy appointment.

5.6.31A  Person may attend and vote by attorney

         (1)   A person entitled to attend and vote at a meeting may attend and vote at a meeting by his or her attorney.

         (2)   A person claiming to be the attorney of a person entitled to attend and vote at a meeting is not entitled to speak or vote as attorney at the meeting (except in relation to the election of a chairperson) unless:

                (a)    the instrument by which the person was appointed as attorney has been produced to the chairperson; or

               (b)    the chairperson is otherwise satisfied that the person claiming to be the attorney of the person entitled to vote is the duly authorised attorney of that person.

5.6.32     Liquidator etc may act as proxy

                A person may appoint:

                (a)    the liquidator; or

               (b)    the provisional liquidator; or

                (c)    the administrator of a company under administration or of a deed of company arrangement; or

               (d)    the chairperson of a meeting;

by name or by reference to his or her office, to act as his or her general or special proxy.

5.6.33     Voting by proxy if financially interested

                A person acting under a general proxy must not vote in favour of any resolution which would directly or indirectly place:

                (a)    the person; or

               (b)    the person’s partner; or

                (c)    the person’s employer;

in a position to receive any remuneration out of assets of the company except as a creditor rateably with the other creditors of the company.

5.6.34     Liquidator etc may appoint deputy

                If:

                (a)    a liquidator; or

               (b)    an administrator of a company under administration or of a deed of company arrangement; or

                (c)    a trustee for debenture holders;

holds a proxy and cannot attend the meeting for which it is given, he or she may in writing appoint a person as a deputy who must:

               (d)    use the proxy:

                          (i)    on his or her behalf in the manner he or she directs; or

                         (ii)    if the proxy is a special proxy — in accordance with its terms; and

                (e)    if the person has been appointed by a liquidator — comply with regulation 5.6.33 as if the person were the liquidator.

5.6.36     Time for lodging proxies

                A person named in a notice convening a meeting as the person who is to receive:

                (a)    an instrument appointing a proxy; or

               (b)    any other document relating to the validity of the appointment of a proxy;

must not require that instrument or document to be received more than 48 hours before the meeting.

5.6.36A  Facsimile copies of proxies

         (1)   A person who, for the purposes of a meeting, lodges a faxed copy of an instrument appointing a proxy or of any document relating to the validity of the appointment, must lodge the original instrument or document in the manner mentioned in subregulation 5.6.28 (3) within 72 hours after lodging the faxed copy.

         (2)   A failure by a person to comply with subregulation (1) will not invalidate the meeting or anything done at the meeting unless the Court, on the application of the convenor of the meeting or of a creditor, member or contributory, otherwise declares.

5.6.37     Establishing title to priority

                Regulations 5.6.39 to 5.6.57 (inclusive) apply to the establishment of a title to priority as if it were a debt or claim.

5.6.39     Notice to submit particulars of debt or claim

         (1)   A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which a creditor may submit particulars of his or her debt or claim.

         (2)   A liquidator must, at least once, give notice in writing of the day fixed under subregulation (1) by advertising the date in a daily newspaper circulating generally in each State or Territory in which the company has its registered office or carries on business.

         (3)   An advertisement mentioned in subregulation (2) must be in accordance with Form 533.

5.6.40     Preparation of a proof of debt or claim

         (1)   A proof of debt or claim may be prepared by the creditor personally or by a person authorised by the creditor.

         (2)   A proof prepared by an authorised person must state his or her authority and means of knowledge.

5.6.41     Disclosure of security

                A proof of debt or claim must state:

                (a)    whether the creditor is or is not a secured creditor; and

               (b)    the value and nature of the creditor’s security (if any); and

                (c)    whether the debt is secured wholly or in part.

5.6.42     Discounts

                In preparing a proof of debt or claim, a creditor must allow for all discounts for which an allowance would have been made if the company were not being wound up.

5.6.43     Periodical payments

         (1)   If rent or any other payment:

                (a)    falls due at stated times; and

               (b)    the relevant date is a time other than one of those times;

the person entitled to the rent or other payment may submit a proof of debt or claim for a proportionate part of the rent or other payment, up to the date of the winding up order or resolution, as if the rent or payment accrued from day to day.

         (2)   If the liquidator remains in control of premises rented to a company that is being wound up, subregulation (1) does not affect the right of the landlord of the premises to claim payment of rent by the company or the liquidator during the period of the company’s occupation or the liquidator’s control.

5.6.43A  Debt or claim of uncertain value — appeal to Court

         (1)   An appeal to the Court under subsection 554A (3) of the Act must be made:

                (a)    within 21 days after the person aggrieved becomes aware of the liquidator’s estimate or, if the period is extended under subregulation (2), within the extended period; and

               (b)    in accordance with the rules.

         (2)   On application by the person aggrieved before or after the end of the period of 21 days mentioned in subregulation (1), the Court may extend the period within which an appeal must be made.

5.6.44     Debt discount rate (Act s 554B)

                The discount by which the amount payable on the future date is to be reduced under section 554B of the Act is 8% a year calculated from the declaration of the dividend to the time when the debt would have become payable according to the terms on which it was contracted.

5.6.45     Employees’ wages

         (1)   If the employees of a company make demands:

                (a)    for wages or salaries (whether or not earned wholly or in part by way of commission), whether or not payable to the employees for annual leave or long service leave; or

               (b)    for retrenchment payments;

one proof of debt or claim may be prepared and submitted on behalf of those employees.

         (2)   A proof of debt or claim prepared and submitted under subregulation (1):

                (a)    must have annexed to it a schedule setting out the names of the employees and the amounts due to each of them; and

               (b)    has the same effect as if separate proofs had been prepared and submitted by each of the employees named in the schedule.

5.6.46     Production of bill of exchange and promissory note

                If a company is, or may become, liable on:

                (a)    a bill of exchange; or

               (b)    a promissory note; or

                (c)    any other negotiable instrument or security;

it must be produced to the liquidator before a proof of debt or claim for the liability can be admitted, unless the Court otherwise orders.

5.6.47     Admission of debt or claim without formal proof

         (2)   If a liquidator admits a debt or claim without formal proof, it is not necessary for the liquidator formally to admit the debt or claim in writing.

         (3)   If a creditor’s debt or claim has been admitted without formal proof, a notice of dividend is sufficient notice of the admission.

         (4)   A liquidator must not reject a debt or claim without:

                (a)    notifying the creditor of the grounds of the liquidator’s rejection; and

               (b)    requiring that a formal proof of debt or claim be submitted for that debt or claim.

5.6.48     Notice to creditors to submit formal proof

         (1)   A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which creditors of the company whose debts or claims have not been admitted are formally to prove their debts or claims.

         (2)   A liquidator must give notice in writing of the day fixed under subregulation (1):

                (a)    by advertising the day, in each State and Territory in which the company carried on business at any time during the 2 years immediately preceding the relevant date, in a daily newspaper circulating generally in the State or Territory; and

               (b)    to every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and whose debt or claim has not been admitted.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this paragraph by the nominated electronic means.

         (3)   An advertisement mentioned in subregulation (2) must be in accordance with Form 534.

         (4)   A creditor of the company who fails to comply with a requirement of a liquidator under subregulation (1) is excluded:

                (a)    from the benefit of a distribution made before his or her debt or claim is admitted; and

               (b)    from objecting to that distribution.

5.6.49     Formal proof of debt or claim

         (1)   A debt or claim may be formally proved by delivering or sending by post a formal proof of debt or claim to the liquidator.

         (2)   A formal proof of debt or claim:

                (a)    that is prepared and submitted in accordance with regulation 5.6.45 — must be in accordance with Form 536; and

               (b)    in any other case — must be in accordance with Form 535.

5.6.50     Contents of formal proof of debt or claim

         (1)   A formal proof of debt or claim must:

                (a)    contain detailed particulars of the debt or claim sought to be proved; and

               (b)    in the case of a debt, include a statement of account; and

                (c)    specify the vouchers (if any) by which the statement can be substantiated.

         (2)   The liquidator may at any time call for the production of the vouchers mentioned in subregulation (1).

5.6.51     Costs of proof

                A creditor must bear the cost:

                (a)    of proving his or her debt or claim; or

               (b)    of amending a proof of debt or claim;

unless the Court otherwise orders.

5.6.52     Liquidator to notify receipt of proof of debt or claim

                If a liquidator is requested to do so by the person submitting a proof of debt or claim, the liquidator must notify that person of the receipt of the proof and whether or not it has been admitted under regulation 5.6.47.

5.6.53     Time for liquidator to deal with proofs

         (1)   A liquidator must, within:

                (a)    28 days after receiving a request in writing from a creditor to do so; or

               (b)    if ASIC allows — any further period;

in writing:

                (c)    admit all or part of the formal proof of debt or claim submitted by the creditor; or

               (d)    reject all or part of the formal proof of debt or claim; or

                (e)    require further evidence in support of it.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (2)   If the liquidator does not deal with a request under subregulation (1) in accordance with that subregulation, the creditor who submitted the proof may apply to the Court for a decision in respect of it.

         (3)   If the liquidator gives notice in writing to a creditor that further evidence is required in support of the formal proof of debt or claim submitted by the creditor under subregulation (1), the period mentioned in that subregulation is taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her notice.

5.6.54     Grounds of rejection and notice to creditor

         (1)   Within 7 days after the liquidator has rejected all or part of a formal proof of debt or claim, the liquidator must:

                (a)    notify the creditor of the grounds for that rejection in accordance with Form 537; and

               (b)    give notice to the creditor at the same time:

                          (i)    that the creditor may appeal to the Court against
the rejection within the time specified in the notice, being not less than 14 days after service of the notice, or such further period as the Court allows; and

                         (ii)    that unless the creditor appeals in accordance
with subparagraph (i), the amount of his or her debt or claim will be assessed in accordance with the liquidator’s endorsement on the creditor’s proof.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (2)   A person may appeal against the rejection of a formal proof of debt or claim within:

                (a)    the time specified in the notice of the grounds of rejection; or

               (b)    if the Court allows — any further period.

         (3)   The Court may extend the time for filing an appeal under subregulation (2), even if the period specified in the notice has expired.

         (4)   If the liquidator has admitted a formal proof of debt or claim, the notice of dividend is sufficient notice of the admission.

5.6.55     Revocation or amendment of decision of liquidator

         (1)   If the liquidator considers that a proof of debt or claim has been wrongly admitted, the liquidator may:

                (a)    revoke the decision to admit the proof and reject all of it; or

               (b)    amend the decision to admit the proof by increasing or reducing the amount of the admitted debt or claim.

         (2)   If the liquidator considers that all of a proof of debt or claim has been wrongly rejected, the liquidator may:

                (a)    revoke the decision to reject the proof of debt or claim; and

               (b)    admit all of the proof or admit part of it and reject part of it.

         (3)   If the liquidator:

                (a)    revokes a decision to admit a proof of debt or claim and rejects all of it; or

               (b)    amends that decision by reducing the amount of the admitted debt or claim;

the liquidator must inform the creditor by whom it was lodged, in writing, of his or her grounds for the revocation or amendment.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (4)   If the liquidator revokes a decision to admit a proof of debt or claim and rejects all of it, or amends that decision by reducing the amount of the admitted debt or claim, the creditor must at once repay to the liquidator:

                (a)    the amount received as dividend for the proof; or

               (b)    the amount received as dividend that exceeds the amount that the creditor would have been entitled to receive if his or her debt or claim had been originally admitted for the reduced amount.

         (5)   If the liquidator:

                (a)    revokes a decision to reject all of a proof of debt or claim; or

               (b)    amends a decision to admit part of a proof of debt or claim;

by increasing the amount of the admitted debt or claim, the creditor by whom it was lodged is entitled to be paid, out of available money for the time being in the hands of the liquidator:

                (c)    the dividend; or

               (d)    an additional amount of dividend;

that the creditor would have been entitled to receive if all of the debt or claim had been originally admitted, or the increased amount had been admitted, before the available money is applied to pay a further dividend.

         (6)   The creditor is not entitled to disturb the distribution of any dividends declared before the liquidator revoked or amended the decision.

5.6.56     Withdrawal or variation of proof of debt or claim

                A proof of debt or claim may be withdrawn, reduced or varied by a creditor with the consent of the liquidator.

5.6.57     Oaths

                The liquidator in a winding up by the Court may:

                (a)    administer an affirmation or oath; and

               (b)    take an affidavit;

for the purposes of the liquidator’s duties in relation to admitting a debt or claim.

5.6.58     Liquidator to make out provisional list of contributories

                If the liquidator of a company considers it necessary to make calls on or adjust the rights of contributories, the liquidator must, as soon as practicable, make out a provisional list of contributories in accordance with Form 538.

5.6.59     Time and place for settlement of list

         (1)   The liquidator must give to each person included in the list not less than 14 days’ notice in writing, in accordance with Form 539, of the time and place appointed to settle the list.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (2)   The liquidator or a person acting on his or her behalf must lodge a statement in writing in the prescribed form that notice under subregulation (1) was given to each person included in the provisional list of contributories.

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in subregulation (2) is not prescribed in these Regulations.

         (3)   A statement under subregulation (2) is evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.

5.6.60     Settlement of list of contributories

         (1)   Before settling the list of contributories, the liquidator must hear and determine any objection by a person to being included in the list.

         (2)   The liquidator must settle the list of contributories and certify it, in accordance with Form 541, at the time and place specified in the notice given under regulation 5.6.59.

5.6.61     Supplementary list

         (1)   The liquidator may at any time vary or add to the list of contributories by:

                (a)    making out a provisional supplementary list of contributories in accordance with Form 542; and

               (b)    settling and certifying that list in accordance with Form 543.

         (2)   Regulation 5.6.59 and subregulation 5.6.60 (1) apply to making out, or settling and certifying, a supplementary list by the liquidator.

5.6.62     Notice to contributories

         (1)   Within 14 days after the settlement of the list, or supplementary list, of contributories, the liquidator must:

                (a)    notify each person included in the list, or supplementary list, of his or her inclusion; and

               (b)    at the same time give each person notice that he or she may appeal to the Court against his or her inclusion within:

                          (i)    21 days after service of the notice; or

                         (ii)    if the Court allows — any further period.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this subregulation by the nominated electronic means.

         (2)   A person may appeal against his or her inclusion in the list, or supplementary list, of contributories, within:

                (a)    21 days after service on the person of the notice under subregulation (1); or

               (b)    if the Court allows — any further period.

         (3)   The Court may extend the time for filing an appeal under subregulation (2), even if the period of 21 days specified in subregulation (1) has expired.

         (4)   A notice for subregulation (1) must be in accordance with Form 544.

         (5)   The liquidator, or a person acting on the liquidator’s behalf, must lodge a statement in writing in the prescribed form that notice under subregulation (1) was given to each person placed on the list, or supplementary list, of contributories.

Note   Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a)   if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b)   if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in subregulation (5) is not prescribed in these Regulations.

         (6)   A statement under subregulation (5) is sufficient evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.

5.6.63     Dividend payable only on admission of a debt or claim

                A dividend in the winding up of the affairs of a company may be paid only to a creditor whose debt or claim has been admitted by the liquidator at the date of the distribution of dividends.

5.6.64     Application of regulations 5.6.37 to 5.6.57

                For regulations 5.6.64 to 5.6.71, regulations 5.6.37 to 5.6.57 apply:

                (a)    to the formal proof of a debt or claim; and

               (b)    to the rejection and to an appeal against the rejection of all or part of a formal proof of a debt or claim.

5.6.65     Liquidator to give notice of intention to declare a dividend

         (1)   The liquidator must give notice of his or her intention to declare a dividend not more than 2 months before the intended date:

                (a)    by publishing a notice in the Gazette in accordance with Form 546; and

               (b)    in writing, in accordance with Form 547 or, for a final dividend, in accordance with Form 548, to any person whose debt or claim has not been admitted and who:

                          (i)    for a winding up by the Court — is shown as a creditor in the report on the affairs of the company under subsection 475 (1) of the Act; or

                         (ii)    for a members’ voluntary winding up — appears in the company’s records to be a creditor; or

                        (iii)    for a creditors’ voluntary winding up — is shown as a creditor in the list of creditors prepared in accordance with subparagraph 497 (2) (b) (ii) of the Act; or

                        (iv)    to the knowledge of the liquidator claims to be, or might claim to be, a creditor of the company.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this paragraph by the nominated electronic means.

         (2)   A notice in accordance with subregulation (1) must specify a date, not less than 21 days after the date of the notice, on or before which formal proof, in accordance with Form 535 or 536, of a debt or claim must be submitted to participate in the distribution.

         (3)   Subject to regulation 5.6.68, a person:

                (a)    who claims to be a creditor; and

               (b)    who does not submit a formal proof of a debt or claim on or before the date specified in the notice given under subregulation (1);

is excluded from participating in the distribution to which that notice relates.

5.6.66     Time allowed for dealing with formal proof of debt or claim

         (1)   If the liquidator has given notice in accordance with subregulation 5.6.65 (1), the liquidator must:

                (a)    within 14 days after the date shown in the notice; or

               (b)    within such further period as ASIC allows;

in writing:

                (c)    before the end of that period:

                          (i)    admit a formal proof of debt or claim received by the liquidator; or

                         (ii)    reject it; or

                        (iii)    admit part of it and reject part of it; or

                        (iv)    require further evidence in support of it; and

               (d)    give notice of the liquidator’s decision to the creditor who submitted the proof.

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this paragraph by the nominated electronic means.

         (2)   If, within whichever period is applicable under paragraph (1) (a) or (b) or subregulation (3), the liquidator does not, in writing, deal with a formal proof of debt or claim in accordance with paragraphs (1) (c) and (d), the creditor who submitted the proof may apply to the Court for a decision on it.

         (3)   If the liquidator gives notice to a creditor that further evidence is required in relation to a formal proof of debt or claim submitted by the creditor:

                (a)    the liquidator must, in writing, deal with the formal proof of debt or claim in accordance with paragraphs (1) (c) and (d), within whichever period mentioned in paragraph (1) (a) or (b) is applicable; and

Note   The effect of regulation 5.6.11A is that if a recipient has, in accordance with that provision, nominated electronic means to receive notices, the notifier may give or send the notice mentioned in this paragraph by the nominated electronic means.

               (b)    that period must be taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her request.

5.6.67     Declaration and distribution of dividend

         (1)   The liquidator must, as soon as practicable, declare and distribute a dividend among the creditors whose debts or claims have been admitted.

         (2)   The liquidator must distribute as dividend all money in hand except enough:

                (a)    to meet the costs of administration; or

               (b)    to give effect to the provisions of the Act.

         (3)   If the liquidator declares a dividend, he or she must send a notice of that declaration, in accordance with Form 549, to every person entitled to receive payment of the dividend.

5.6.68     Rights of creditor who has not proved debt before declaration of dividend

         (1)   If:

                (a)    a creditor’s debt or claim has not been admitted before the declaration of a dividend; and

               (b)    the debt or claim is admitted;

the creditor is entitled to be paid dividends that the creditor has failed to receive, out of any available money for the time being in the hands of the liquidator, before that money is applied to the payment of a further dividend.

         (2)   A creditor is not entitled to disturb the distribution of a dividend declared before the creditor’s debt or claim was admitted.

5.6.69     Postponement of declaration

                If the liquidator postpones the declaration of a dividend past the date shown for that purpose in the notice published in
the Gazette, the liquidator must publish a further notice in the Gazette, in accordance with Form 546, of the liquidator’s intention to declare a dividend.

5.6.70     Payment of dividend to a person named

                If a person to whom a dividend is payable lodges an authority in accordance with Form 550 with the liquidator, the liquidator must pay the dividend to the person to whom payment is directed by that authority.

5.6.70A  Prescribed rate of interest on debts and claims from relevant date to date of payment

                For section 563B of the Act, the prescribed rate of interest on the amount paid in respect of an admitted debt or claim for the period starting on the relevant date and ending on the day on which the payment is made is 8% a year.

5.6.71     Distribution of surplus in a winding up by the Court

         (1)   An order in a winding up by the Court authorising the liquidator to distribute any surplus to a person entitled to it must, unless the Court otherwise directs, have annexed to it a schedule in accordance with Form 551.

         (2)   The liquidator must send to each person to whom any surplus is distributed a notice in accordance with Form 552.

5.6.72     Distribution of surplus as directed

                If a person who receives a notice of distribution of surplus in accordance with subregulation 5.6.71 (2) lodges with the liquidator an authority in accordance with Form 553, the liquidator must distribute that surplus to the person to whom payment is directed by that authority.

5.6.73     Eligible unsecured creditor

Creditors that are eligible unsecured creditors

         (1)   For paragraph 579Q (1) (b) of the Act, the following creditors are specified:

                (a)    a creditor to which either of the following applies as a result of a modification of the Act made under paragraph 571 (1) (d) of the Act:

                          (i)    a debt payable by a company or companies in a group to any other company or companies in the group is not extinguished;

                         (ii)    a claim that a company or companies in a group has against any other company or companies in the group is not extinguished;

               (b)    a creditor that is determined by a Court to be an eligible unsecured creditor.

Creditors that are not eligible unsecured creditors

         (2)   For subsection 579Q (2) of the Act, a creditor that is determined by a Court not to be an eligible unsecured creditor is specified.

5.6.74     Interpretation: prescribed countries

                For the definition of prescribed country in section 580 of the Act, the following countries are prescribed:

                (a)    the Bailiwick of Jersey;

               (b)    Canada;

                (c)    the Independent State of Papua New Guinea;

               (d)    Malaysia;

                (e)    New Zealand;

                (f)    the Republic of Singapore;

               (g)    Switzerland;

               (h)    the United Kingdom;

                (i)    the United States of America.

 

Chapter 5B  Bodies corporate registered as companies, and registrable bodies

Part 5B.2            Registrable bodies

  

5B.2.01  Certified copies of certificates of incorporation etc

                For paragraphs 601CB (a) and 601CE (a) of the Act, a certified copy of a current certificate of the incorporation or registration in its place of origin, or a document of similar effect, of:

                (a)    a registrable Australian body; or

               (b)    a foreign company;

that is lodged with an application for registration under Division 1 or 2 of Part 5B.2 of the Act, must be a copy that:

                (c)    within the 3 months immediately before the day on which it is lodged; or

               (d)    if ASIC permits — within a longer period;

has been certified to be a true copy by a person:

                (e)    who has the custody of the original document under a law in force in the place of origin of the corporation or company; and

                (f)    who exercises under that law functions similar to those exercised by ASIC.

5B.2.02  Manner of certifying constituent documents

                For paragraphs 601CB (b) and 601CE (b) of the Act, a certified copy of a constitution of:

                (a)    a registrable Australian body; or

               (b)    a foreign company;

must be a copy that:

                (c)    within the period of 3 months immediately preceding the day on which it is lodged; or

               (d)    if ASIC permits — a longer period;

has been certified to be a true copy:

                (e)    by a person:

                          (i)    to whom the custody of the original document is committed under a law in force in the place of origin of the corporation or company; and

                         (ii)    who exercises under that law functions similar to those exercised by ASIC; or

                (f)    by a notary public; or

               (g)    by a director or secretary of the body:

                          (i)    if the body is a registrable Australian body — by a statement in writing; or

                         (ii)    if the body is a foreign company — by affidavit.

5B.2.03  Manner of sending letters (Act ss 601CC (2) and 601CL (3))

                For subsections 601CC (2) and 601CL (3) of the Act, a letter must be sent by post.

5B.2.04  Manner of sending notices (Act ss 601CC (3) and 601CL (4))

                For subsections 601CC (3) and 601CL (4) of the Act, a notice must be sent by prepaid certified mail.

5B.2.05  Prescribed countries (Act s 601CDA (a))

                For paragraph 601CDA (a) of the Act, a country mentioned in the following table is prescribed:

 

Item

Country

1

New Zealand

5B.2.06  Notices (Act s 601CV (1))

         (1)   A notice in writing of a change in a constitution or other document, in accordance with paragraph 601CV (1) (b) of the Act, must be accompanied by a copy of the instrument effecting the change or a copy of the document as changed, being a copy that is certified to be a true copy of that instrument or document by a person mentioned in paragraph 5B.2.02 (e), (f) or (g).

         (2)   A notice in writing of a change in director’s powers, in accordance with subparagraph 601CV (1) (d) (i) of the Act, must be accompanied by a memorandum in writing executed by or on behalf of the foreign company after a change in those powers stating the powers of its directors as changed.


 

Part 5B.3            Names of registrable Australian bodies and foreign companies

  

5B.3.01  Availability of names (Act s 601DC)

         (1)   For paragraphs 601DC (1) (a) and (b) of the Act, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.

         (2)   For paragraph 601DC (1) (c) of the Act, a name is unacceptable for registration under the regulations if the name is unacceptable under the rules set out in Part 2 of Schedule 6.

5B.3.02  Consents required for use of certain letters, words and expressions

         (1)   This regulation applies to a name if:

                (a)    the name:

                          (i)    is the subject of an application for registration of a name under section 601BC, 601CB or 601CE of the Act; or

                         (ii)    is the subject of an application for reservation of a name under section 601DA of that Act; or

                        (iii)    for a notice of change of name under section 601DH of the Act — is the name to which the previous name is to be changed; and

               (b)    the name is, uses or includes:

                          (i)    letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or

                         (ii)    other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.

         (2)   In paragraph (1) (b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

                (a)    as part of another word or expression; or

               (b)    in combination with other words or letters, or other symbols.

         (3)   However, this regulation does not apply to use of the letters ADI as part of another word.

Example

The letters adi appear in the word traditional. This regulation does not apply to use of the word traditional.

         (4)   If an item in Part 4 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the Minister who is specified in the item.

         (5)   If an item in Part 5 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

5B.3.03  Exemptions from requirement to set out ARBN etc on certain documents (Act s 601DG)

                For section 601DG of the Act, the exemptions provided for in Schedule 7 apply in relation to the requirements of paragraphs 601DE (1) (b), (c) and (d) of the Act.

5B.3.04  Notices (Act s 601DH (1))

         (1)   A notice in writing of a change of name in accordance with subsection 601DH (1) of the Act, must have annexed to it:

                (a)    a copy of the certificate of incorporation or registration of the registered body, or a document of similar effect, being a certificate or document evidencing the change; or

               (b)    if no certificate or document of that kind exists — a copy of the instrument effecting the change;

being a copy that is certified by a person mentioned in paragraph 5B.2.02 (e), (f) or (g) to be a true copy of that certificate, document or instrument.

Chapter 5C  Managed investment schemes

Part 5C.1            Registration of managed investment schemes

  

5C.1.01  Applying for registration

         (1)   An application under section 601EA of the Act to register a managed investment scheme must be in the approved form.

         (2)   The form must state the name of the managed investment scheme.

         (3)   The stated name must not be the same as the name of:

                (a)    another managed investment scheme that is the subject of an application for registration that is lodged but not yet determined; or

               (b)    a registered scheme.

         (4)   A statement made for paragraph 601EA (4) (c) of the Act must be in the approved form.

5C.1.02  Change of name of registered schemes

         (1)   To change the name of a registered scheme, the responsible entity of the scheme must lodge a notice in the approved form stating the proposed name of the scheme.

         (2)   The stated name must not be the same as the name of:

                (a)    another managed investment scheme that is the subject of an application for registration under section 601EB of the Act that is lodged but not yet determined; or

               (b)    a registered scheme.

         (3)   On application in accordance with this regulation, ASIC must amend the record of the registration of the scheme to include the name of the scheme as proposed to be amended.

5C.1.03  Modification (Act s 601QB)

         (1)   For section 601QB of the Act, the operation of Chapter 5C of the Act is modified in accordance with this regulation.

         (2)   If:

                (a)    a managed investment scheme is registered under section 601EB of the Act; and

               (b)    the managed investment scheme is also registered on the Australian Business Register; and

                (c)    the last 9 digits of the ABN of the registered scheme are the same, and in the same order, as the last 9 digits of its ARSN; and

               (d)    a document relating to the scheme is lodged with ASIC, and displays that ABN;

section 601EC of the Act does not apply to the document.


 

Part 5C.2            The responsible entity

  

5C.2.01  Duty of responsible entities’ agents — surveillance checks

                The agent of a responsible entity must take all reasonable steps to assist the entity and ASIC when ASIC is conducting a check whether the entity is complying with the constitution and compliance plan of a registered scheme and with the Act.

5C.2.02  Appointment of temporary responsible entities

                ASIC, or a member of a registered scheme, may apply to the Court for the appointment of a temporary responsible entity of the scheme if ASIC or member reasonably believes that the appointment is necessary to protect scheme property or the interests of members of the scheme.

5C.2.03  Form of notices (Act ss 601FL (2) and 601FM (2))

                A notice to be lodged under subsection 601FL (2) or 601FM (2) of the Act must be in the approved form.

5C.2.04  Notice of appointment of temporary responsible entities

                As soon as practicable after the Court appoints a temporary responsible entity for a registered scheme on application by a member of the scheme under section 601FN of the Act, the member must lodge a notice in the approved form that tells ASIC of the appointment.

5C.2.05  Form of notices (Act s 601FP (3))

                A notice to be lodged under subsection 601FP (3) of the Act must be in the approved form.


 

Part 5C.4            The compliance plan

  

5C.4.01  Agents’ authorities to be lodged

                If a compliance plan, or modification of a plan, lodged with ASIC under section 601HC or subsection 601HE (3) of the Act is signed by an agent of the directors of the responsible entity of the registered scheme to which the plan relates, the authority to do so, or a copy of the authority verified by a director of the entity, must be attached to the plan or modification.

5C.4.02  Agents to assist auditors of compliance plans

                An agent of the responsible entity of a registered scheme, and an officer of the agent, must:

                (a)    allow the auditor of the scheme’s compliance plan to have access to the books of the scheme; and

               (b)    if the auditor requires the agent or entity to give the auditor information or an explanation for the audit — give the information or explanation to the auditor; and

                (c)    otherwise assist the conduct of the audit.


 

Part 5C.5            The compliance committee

  

5C.5.01  Responsible entities etc to assist compliance committees

         (1)   This regulation applies to a person who is the responsible entity of a registered scheme, an officer of the entity, an agent of the entity or an officer of the agent.

         (2)   The person must:

                (a)    allow the compliance committee to have access to the books of the scheme; and

               (b)    if the committee requires the person to give the committee information or an explanation about the scheme — give the information or explanation to the committee; and

                (c)    otherwise assist the committee in the performance of its functions.


 

Part 5C.9            Winding up

  

5C.9.01  Notice of commencement of winding up

                The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC that winding up of the scheme has commenced, or been completed, within 14 days of the commencement or completion.


 

Part 5C.11          Exemptions and modifications

Division 1              Exemptions

5C.11.01     Certain funds not managed investment funds

                For paragraph (n) of the definition of managed investment scheme in section 9 of the Act, an approved benefit fund within the meaning of section 16B of the Life Insurance Act 1995 is not a managed investment scheme.

Division 2              Modifications

5C.11.02     Modifications

                For section 601QB of the Act, the operation of the Act is modified in accordance with this Division.

5C.11.03     Register of members of registered schemes    (Act s 169 (1))

                The register of members of a registered scheme need not contain information about a member whose only interest in the scheme is as the holder of an option.

5C.11.04     Names of registered schemes (Act s 601EB (1))

                ASIC must not register a managed investment scheme if the name of the scheme stated under subregulation 5C.1.01 (2) does not comply with subregulation 5C.1.01 (3).

5C.11.05A  Schemes not required to be registered (Act s 601ED)

                Subsection 601ED (2) of the Act has effect as if the words ‘and Division 2 of Part 7.9 applied to the interests at that time’ were inserted after the words ‘when the issues were made’.

5C.11.06     Liability of responsible entities (Act s 601FB (4))

                In determining the liability under subsection 601FB (2) of the Act of the responsible entity of a registered scheme to the members of the scheme for an act or omission of an agent appointed by the entity under that subsection, the amount recovered under subsection 601FB (4) of the Act is to be disregarded.

Chapter 5D  Licensed trustee companies

Part 5D.1            Preliminary

  

5D.1.01  Meaning of trustee company

         (1)   For paragraph 601RAB (1) (b) of the Act, a company that is listed in Schedule 8AA is prescribed as a trustee company for the purpose of the Act.

         (2)   A company that performs the function of the Public Trustee of a State or Territory may only be listed in Schedule 8AA if:

                (a)    the State or Territory requests the Minister to prescribe the company as a trustee company; and

               (b)    the Minister agrees to the request.

5D.1.02  Meaning of traditional trustee company services and estate management functions

         (1)   For paragraph 601RAC (3) (f) of the Act, acting in any of the following capacities is prescribed:

                (a)    as trustee for the holders of debt securities of a body;

               (b)    as trustee of a trust established for purposes that include issuing debt securities (including loan-backed securities and mortgage-backed securities) or managing or servicing the assets of the trust;

                (c)    as trustee for the benefit of present or future creditors of another person when holding:

                          (i)    mortgages, charges, guarantees, indemnities or other rights or benefits that have been given to secure debts owing to the creditors; and

                         (ii)    the proceeds from the enforcement of any of the securities mentioned in subparagraph (i);

Note   Securities is defined in section 92 of the Act.

               (d)    as custodian for another trustee or for the responsible entity of a registered scheme or other commercial entity;

                (e)    as trustee of a managed investment scheme the main assets of which consist of land and improvements on the land where the trustee is not responsible for the daily management of the land or any business conducted on the land;

Note   Managed investment scheme is defined in section 9 of the Act.

                (f)    as trustee for employee share or benefit schemes;

               (g)    as trustee for trusts the main activities of which consist of making loans to, or otherwise investing in, companies or other commercial entities;

               (h)    as an escrow agent;

                (i)    as a person named in a will as an executor when not actively providing a service or function;

                (j)    as a person named in a power of attorney as an attorney when not actively providing a service or function;

               (k)    preparing a power of attorney for a person’s medical treatment or for guardianship of a person’s affairs;

                (l)    preparing a living will or advance health directive of any kind.

         (2)   In this regulation:

custodian does not include a trustee establishing and operating a common fund.

debt security means:

                (a)    any debenture, debenture stock, bond, note or other security of a corporation or body; or

               (b)    any convertible note issued by a company or any convertible note in a unit trust scheme issued by the trustee of a unit trust scheme; or

                (c)    any right to a security mentioned in paragraph (a) or (b);

whether or not it is a charge on the assets of the corporation, company, society or unit trust scheme.

employee share or benefit scheme means a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company, or some other benefit in the company, only to a director or employee of the company, or of an associated body corporate, when the offer is made.

escrow agent means a person with whom is deposited a contract, deed, bond or other written agreement or property for delivery to the grantee, promisee or some other person on resolution of a dispute or fulfilment of some condition.

loan-backed security means:

                (a)    an instrument or property:

                          (i)    creating a right or interest (whether described as a unit, bond or otherwise) for a beneficiary; or

                         (ii)    conferring a right or interest (whether described as a unit, bond or otherwise) on a beneficiary; or

                        (iii)    consisting of a right or interest (whether described as a unit, bond or otherwise) of a beneficiary;

                        in a scheme under which the profits, distributions of capital or income in which beneficiaries share arise or arises from the acquisition, holding, management or disposal of a loan or pool of loans; or

               (b)    an instrument which evidences a right or interest mentioned in paragraph (a); or

                (c)    a debt security:

                         (i)     the payments under which by the person that issues or makes the instrument are derived mainly from the acquisition, holding, management or disposal of a loan or pool of loans; and

                        (ii)     that is secured by a mortgage or charge over a loan or pool of loans.

mortgage-backed security has the meaning given in regulation 5D.1.03.

5D.1.03  Meaning of mortgage-backed security

         (1)   A mortgage-backed security is:

                (a)    an interest in a trust that entitles the holder of, or beneficial owner under, the interest to:

                          (i)    the whole, or any part, of the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a mortgage or pool of mortgages; or

                         (ii)    any amount payable by the mortgagor or mortgagors under a mortgage or mortgages (whether or not the amount is payable to the holder of, or beneficial owner under, the interest on the same terms as under the mortgage or mortgages); or

                        (iii)    payments that are derived mainly from the income or receipts of a mortgage or pool of mortgages;

                        and that may, in addition, entitle the holder, or beneficial owner, to a transfer or assignment of the mortgage or mortgages; or

               (b)    a debt security (whether or not in writing) the payments under which by the person who issues or makes the debt security are derived mainly from the income or receipts of a mortgage or pool of mortgages; or

                (c)    any of the following:

                          (i)    an interest in a trust:

                                   (A)     creating a right or interest (whether described as a unit, bond or otherwise) for a beneficiary; or

                                   (B)     conferring a right or interest (whether described as a unit, bond or otherwise) on a beneficiary; or

                                   (C)     consisting of a right or interest (whether described as a unit, bond or otherwise) of a beneficiary;

                                 in a scheme under which any profit or income in which the beneficiaries share arises from the acquisition, holding, management or disposal of a mortgage, pool of mortgages or the income or receipts of a mortgage or pool of mortgages;

                         (ii)    any instrument that evidences a right or interest mentioned in subparagraph (i);

                        (iii)    a security (whether or not in writing) the payments under which by the person who issues or makes the security are derived mainly from the income or receipts of a mortgage or pool of mortgages;

                        (iv)    an interest in a trust or a debt security (whether or not in writing);

                         (v)    an instrument or property that creates an interest in, or charge over an interest in, a trust;

                        (vi)    a debt security (whether or not in writing);

                       (vii)    any other property to which paragraph (a) or (b) or subparagraph (i), (ii) or (iii) applies.

         (2)   However, a mortgage-backed security does not include an instrument or property consisting of any of the following:

                (a)    a mortgage;

               (b)    the transfer of a mortgage;

                (c)    a declaration of trust.

5D.1.04  Interaction between trustee company provisions and State and Territory laws

         (1)   For paragraph 601RAE (4) (a) of the Act, the trustee company provisions are intended to apply to the exclusion of the provisions of State or Territory laws prescribed in Schedule 8AB.

         (2)   For paragraph 601RAE (4) (b) of the Act, the trustee company provisions are intended not to apply to the exclusion of the State or Territory laws, or the provisions of State or Territory laws, prescribed in Schedule 8AC, so far as those laws relate to an administrator of a person’s estate.

         (3)   For paragraph 601RAE (4) (b) of the Act, the trustee company provisions are intended not to apply to the exclusion of the State or Territory laws, or the provisions of State or Territory laws, prescribed in Schedule 8AD.

Part 5D.2            Powers etc of licensed trustee companies

Division 2.1           Annual Information Returns

5D.2.01  Obligation on licensed trustee company to provide an annual information return if requested

         (1)   For section 601SAB of the Act, this regulation prescribes the obligation of a licensed trustee company to provide an annual information return.

         (2)   The licensed trustee company commits an offence if:

                (a)    a person mentioned in subregulation (3) requests an annual information return; and

               (b)    the company does not provide the return to the person in accordance with the requirements in subregulations (5), (6) and (8) and regulation 5D.2.02.

Penalty:   50 penalty units.

         (3)   A person may request an annual information return if the person is one of the following:

                (a)    in the case of the estate of a deceased person:

                          (i)    if the person died testate — a beneficiary under the deceased person’s will; or

                         (ii)    if the person died intestate — a person who, under a law of a State or Territory, has, is entitled to, or claims to be entitled to, an interest in the deceased person’s estate; or

                        (iii)    a person who has commenced a proceeding in a court, under a law of a State or Territory, to seek to be included as a beneficiary of the deceased person’s estate;

               (b)    in relation to a charitable trust:

                          (i)    the settlor, or one of the settlors, of the trust; or

                         (ii)    a person who, under the terms of the trust, has power to appoint or remove a trustee of the trust or to vary (or cause to be varied) any of the terms of the trust; or

                        (iii)    a person, or a person’s appointed successor, who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustee or trustees before distributing or applying money or other property for the purposes of the trust;

                (c)    in the case of any other trust:

                          (i)    the settlor, or one of the settlors, of the trust; or

                         (ii)    a person who, under the terms of the trust, has power to appoint or remove a trustee of the trust or to vary (or cause to be varied) any of the terms of the trust; or

                        (iii)    a beneficiary of the trust.

         (4)   The person must make the request for an annual information return in writing to the licensed trustee company and may indicate in the request which one of the following forms of return is required:

                (a)    by sending it to the person’s postal address;

               (b)    by emailing it to a nominated email address.

         (5)   The annual information return must be provided within 30 days after the request from the person is received by the licensed trustee company, and then annually.

         (6)   The annual information return must be for the last financial year that the licensed trustee company has provided a service to the person who has requested the return.

         (7)   However, the licensed trustee company is not required to provide an annual information return covering a period:

                (a)    before 1 July 2010; or

               (b)    before it provided a service to the person.

         (8)   The annual information return must be provided as follows:

                (a)    if requested in a particular form — in the form requested;

               (b)    in all other cases — by sending it to the person’s postal address.

5D.2.02  Information to be included in annual information return

                The annual information return provided by a licensed trustee company must include the following:

                (a)    for a person mentioned in subparagraphs 5D.2.01 (3) (a) (i) and (ii) and (c) (iii):

                          (i)    details of income earned on the person’s interest in the trust or estate; and

                         (ii)    details of expenses in operating the trust or estate in relation to the person’s interest in the trust or estate; and

                        (iii)    the net value of the person’s interest in the trust or estate;

               (b)    for any other person mentioned in subregulation 5D.2.01 (3):

                          (i)    details of income earned on the trust’s assets; and

                         (ii)    details of expenses in operating the trust’s assets, including remuneration, commission or other benefits received by the trustee company; and

                        (iii)    the net value of the trust’s assets;

                (c)    if required under the terms of the trust — a copy of the trust’s audit report and financial statements for the year.

Division 2.2           Common funds

5D.2.03  Common funds

                This Division is made for section 601SCC of the Act.

5D.2.04  Establishment of common funds

         (1)   A licensed trustee company may:

                (a)    establish accounts within a common fund; and

               (b)    establish a common fund on the basis of units or another suitable basis.

         (2)   If the common fund includes money that is not estate money and that is not otherwise held in trust, the licensed trustee company is taken to hold the money in trust for the person on whose behalf the money is invested in the common fund.

5D.2.05  Deciding details about common funds

         (1)   A licensed trustee company that is establishing a common fund commits an offence if, at the time of establishing the fund, it does not ensure that its Board makes a decision, in writing, about the following:

                (a)    any limitation on the amount of money that will form the common fund;

               (b)    the investment strategy for the common fund, including the following:

                          (i)    the class of investments in which the common fund may be invested;

                         (ii)    the procedure for valuing the investments;

                        (iii)    if the trustee company is to seek expert advice about proposed investments — the type of expert advice to be sought;

                (c)    the amount of fees that are to be paid by:

                          (i)    the common fund for the provision of traditional trustee company services; and

                         (ii)    each account in the common fund;

               (d)    the manner in which a withdrawal can be made from the common fund;

                (e)    the procedure for auditing the common fund;

                (f)    if the common fund is to have a limited life — the duration of the common fund;

               (g)    if the common fund is to have a minimum amount that may be invested in the fund on account of each estate — the minimum amount.

Penalty:   50 penalty units.

         (2)   The licensed trustee company commits an offence if it does not:

                (a)    within 14 days of making the decision:

                          (i)    send a copy of the decision to ASIC; and

                         (ii)    publish a copy of the decision on its website; and

               (b)    if requested by a person entitled to request an annual information return under subregulation 5D.2.01 (3), make a copy of the decision available to the person within 30 days of the request being received.

Penalty:   50 penalty units.

5D.2.06  Operation of common funds

Compliance with the Act and regulations

         (1)   A licensed trustee company may, from time to time and without liability for breach of trust, pay into or withdraw an amount from a common fund in accordance with the Act and these Regulations.

Note   Payments into a common fund may be prohibited where this is contrary to the conditions on which the company holds the money: see subsection 601SCB (3) of the Act.

Withdrawals

         (2)   A licensed trustee company may do the following:

                (a)    withdraw an amount from a common fund for a purpose relating to a trust or estate that is part of the fund and is managed or administered by the company;

               (b)    withdraw from a common fund an amount at credit in the fund on account of a trust matter or a managed estate and invest the amount on the separate account of the matter or estate.

         (3)   A licensed trustee company commits an offence if it pays interest from the common fund on withdrawn amounts on or after the day of the withdrawal.

Penalty:   50 penalty units.

Derivatives

         (4)   A licensed trustee company commits an offence if:

                (a)    when managing and administering a common fund, the trustee company enters into a derivative; and

               (b)    at the time of entering into the derivative:

                          (i)    the trustee company did not do so for the purpose of managing a financial risk arising from:

                                   (A)     variations in the expenses of the common fund; or

                                   (B)     variations in the revenue obtainable from investments made by the common fund; and

                         (ii)    the arrangement was not in accordance with the trustee company’s equitable and other duties as a trustee under the relevant State or Territory provisions set out in Schedule 8AE.

Penalty:   50 penalty units.

Applying income from investment

         (5)   A licensed trustee company commits an offence if it applies income from investment of a common fund other than for:

                (a)    payment of the company’s fee for the proper administration and management of the fund under the Act, regulations and terms of the common fund, proportionate to the value of the work done or the services rendered; and

               (b)    allocation in accordance with subregulation (6) in relation to the accounts from which the fund is derived.

Penalty:   50 penalty units.

         (6)   For paragraph (5) (b), the allocation must:

                (a)    be made at intervals not exceeding 6 months; and

               (b)    be divided between each account in the common fund in proportion to the amounts invested from those accounts and the period of investment.

Investments

         (7)   A licensed trustee company commits an offence if:

                (a)    the trustee company invests money committed to its administration or management; and

               (b)    the investment is:

                          (i)    not in accordance with a decision of the Board made for the purpose of regulation 5D.2.05; and

                         (ii)    not made in a manner in which trust funds may be invested by a trustee under the relevant State or Territory provisions set out in Schedule 8AE.

Penalty:   50 penalty units.

Valuation of investments

         (8)   A licensed trustee company commits an offence if it does not comply with the following requirements about the valuation of investments of common funds:

                (a)    by the third business day of each month, the trustee company must decide the value of the investments in each common fund as at the first business day of the month;

               (b)    subject to subregulation (9), in deciding the value of securities listed on a financial market for a month, the trustee company must take the last sale price of the first business day of the month published by the market operator as the value of the listed securities;

                (c)    the trustee company must make withdrawals from the common fund and further investments on the basis of the last valuation of investments made by the company.

Penalty:   50 penalty units.

         (9)   The requirement in paragraph 8 (b) does not apply if, in a particular month, the licensed trustee company decides it is in the best interests of each account in the common fund that a sale price used for the valuation be one taken later in that month.

Realising investments

       (10)   A licensed trustee company may sell investments belonging to a common fund.

       (11)   A licensed trustee company that has realised an investment in a common fund commits an offence if it does not, within 14 days of the realisation, credit or debit any profit or loss between each account in the common fund in proportion to the amounts invested from those accounts at the time of the realisation.

Penalty:   50 penalty units.

5D.2.07  Register of investments

         (1)   A licensed trustee company commits an offence if it does not maintain a register of investments for each common fund in accordance with subregulation (2).

Penalty:   50 penalty units.

         (2)   The register must contain:

                (a)    a record identifying each investment made by the common fund; and

               (b)    details of amounts held to the credit of the common fund.

Note   For other obligations relating to common funds: see section 601SCB of the Act.

5D.2.08  Financial reports

         (1)   A licensed trustee company must comply with this regulation in relation to each common fund established by the company that is not a registered scheme.

Account keeping

         (2)   The licensed trustee company commits an offence if it does not keep accounts that:

                (a)    correctly record and explain its transactions for the common fund and the fund’s financial position and performance; and

               (b)    would enable true and fair financial statements to be prepared and audited.

Penalty:   50 penalty units.

Auditing

         (3)   The licensed trustee company commits an offence if it does not:

                (a)    have the financial statements for a financial year for the common fund audited by a registered company auditor; and

               (b)    obtain an auditor’s report for the financial statements.

Penalty:   50 penalty units.

Lodging financial statements with ASIC

         (4)   The licensed trustee company commits an offence if it does not lodge the audited financial statements for the fund with ASIC within 3 months of the end of the financial year.

Penalty:   50 penalty units.

Request for financial information

         (5)   A person who is entitled to request an annual information return under subregulation 5D.2.01 (3) may request, in writing, that the licensed trustee company provide the information mentioned in subregulation (7).

         (6)   The licensed trustee company commits an offence if it does not provide the information mentioned in subregulation (7) to the person within 30 days of receiving the request under subregulation (5).

Penalty:   50 penalty units.

         (7)   The information that must be provided is:

                (a)    a copy of the common fund’s financial statements and audit report; and

               (b)    the classes of investments in which the common fund is invested and how the investment is divided between each class; and

                (c)    the trustee company’s investment strategy for the common fund.

5D.2.09  Arm’s length transactions

         (1)   This regulation applies to a licensed trustee company of a common fund if the fund is not a registered scheme to which Part 5C.7 of the Act applies.

         (2)   The licensed trustee company commits an offence if it gives a financial benefit in relation to the common fund to a related party.

Penalty:   50 penalty units.

         (3)   Subregulation (2) does not apply if the financial benefit is given on terms that:

                (a)    would be reasonable in the circumstances if the company and the related party were dealing at arm’s length; or

               (b)    are less favourable to the related party than the terms referred to in paragraph (a).

         (4)   In this regulation, related party has the meaning given by section 228 of the Act, as if the references in that section to ‘public company’ were references to ‘licensed trustee company’.

Part 5D.3            Regulation of fees charged by licensed trustee companies

  

5D.3.01  Modification of section 601TAB of the Act: disclosure to clients of changed fees

                For paragraph 601YAB (1) (b) of the Act, Chapter 5D of the Act applies as if section 601TAB of the Act were modified by inserting after subsection (3) the following subsections:

           ‘(4)  A licensed trustee company is not required to comply with paragraph (1) (a) or (b) or (3) (a) in relation to a client who is a lost client, or an agent who is a lost agent.

             (5)  In subsection (4):

lost client means a client who, at a particular time, is uncontactable.

lost agent means an agent who, at a particular time, is uncontactable.

             (6)  In subsection (5):

uncontactable, in relation to a person who is a client or an agent of a licensed trustee company, means:

                     (a)  the licensed trustee company:

                              (i)  never had an address for the person; or

                             (ii)  sent at least 1 written communication to the person’s last known address which was returned unclaimed and the person has not, since the communication, given the company a contact address; and

                     (b)  if the person is an agent, the licensed trustee company made a reasonable attempt to get the agent’s address from the agent’s client or the client’s carers.’

Chapter 6    Takeovers

Part 6.2              Exceptions to the prohibition

  

6.2.01     Prescribed circumstances (Act s 611)

                For item 20 in the table in section 611 of the Act, the acquisition of a relevant interest in voting shares in a following body corporate is prescribed:

                (a)    a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown in right of a State or Territory;

               (b)    a corporation sole;

                (f)    a foreign company or recognised company in respect of which an exemption from compliance with subsection 61 (1) of the Co‑operation Act 1923 of New South Wales is in force;

               (g)    a society within the meaning of The Co‑operative and Other Societies Act of 1967 or The Co‑operative Housing Societies Act of 1958 of Queensland;

                (i)    an association within the meaning of The Primary Producers’ Co‑operative Associations Act of 1923 of Queensland;

                (j)    an association, society, institution or body incorporated under the Associations Incorporation Act 1981 of Queensland;

               (k)    a body incorporated or deemed to be incorporated by or under a law of South Australia other than the Corporations Law of South Australia, the Companies Code (South Australia) or a corresponding previous enactment of South Australia;

                (l)    a society (other than a society that is a financial institution) within the meaning of section 5 of the Building Societies Act 1976 of Western Australia;

               (n)    a co‑operative company registered under Part VI of the Companies (Co‑operative) Act 1943 or a corresponding previous enactment of Western Australia;

               (o)    a society registered under the Co‑operative and Provident Societies Act 1903 of Western Australia;

               (p)    an association, society, institution or body incorporated under the Associations Incorporation Act 1895 of Western Australia;

               (q)    a trustee bank registered under the Trustee Banks Act 1984 of Tasmania;

                (r)    a society (other than a society that is a financial institution) registered under the Co‑operative Industrial Societies Act 1928 of Tasmania;

              (ra)    a society registered under the Co‑operative Housing Societies Act 1963 of Tasmania;

                (s)    an association, society, institution or body incorporated under the Associations Incorporations Act 1964 of Tasmania;

                (t)    a body corporate created by section 75Q of the Conveyancing and Law of Property Act 1884 of Tasmania;

               (u)    a society (other than a society that is a financial institution) registered under the Co‑operative Societies Act 1939 of the Australian Capital Territory;

               (v)    an association, society, institution or body incorporated under the Associations Incorporation Act 1953 of the Australian Capital Territory;

              (w)    a corporation constituted under the Unit Titles Act 1970 of the Australian Capital Territory;

               (x)    a society registered under the Co‑operatives Act 1997 of the Northern Territory.

6.2.02     Other prescribed circumstances (Act s 611)

                For item 20 in the table in section 611 of the Act, the acquisition by a person of a relevant interest in voting shares in a body corporate that results from the person holding an office specified in Schedule 3 is prescribed.

Part 6.5              The takeover procedure

6.5.01     Wholesale holder of securities — telephone monitoring during bid period

         (1)   For paragraph 648J (4) (a) of the Act, the amount applicable in relation to securities to which that paragraph applies is $500 000, determined on the basis of the market value of the securities.

         (2)   For paragraph 648J (4) (d) of the Act, the following persons are prescribed:

                (a)    a director of a recorder mentioned in subsection 648J (1) of the Act;

               (b)    an executive officer of a recorder mentioned in subsection 648J (1) of the Act.

         (3)   For paragraph 648J (4) (d) of the Act:

                (a)    an authorised representative of a financial services licensee who is acting on behalf of the bidder or target in relation to a takeover bid is prescribed only if the authorised representative is not involved in a telephone call as a holder of securities in the bidder or the target; and

               (b)    any other person who is acting on behalf of the bidder or target in relation to a takeover bid is prescribed only if that person is not involved in a telephone call as a holder of securities in the bidder or the target.

Part 6.6              Variation of offers

  

6.6.01     Right to withdraw acceptance

         (1)   For paragraph 650E (3) (a) of the Act, a notice under paragraph 650E (2) (a) of the Act relating to securities entered on a register or subregister of a prescribed CS facility must be in a form approved by the operating rules of that prescribed CS facility for Part 6.6 of the Act (which may include an electronic form).

         (2)   For paragraph 650E (4) (a) of the Act, if securities are entered on a register or subregister of a prescribed CS facility, a person to whom section 650E of the Act applies must take the action that the operating rules of the prescribed CS facility require in relation to the return of the securities.

         (3)   For paragraph 650E (5) (a) of the Act, if a person withdraws an acceptance of an offer, the bidder must take any action that the operating rules of the prescribed CS facility require in relation to any of the securities:

                (a)    to which the acceptance relates; and

               (b)    that are entered on a register or subregister of the prescribed CS facility.

Part 6.8              Acceptances

  

6.8.01     Acceptance of offers made under off‑market bid

                For paragraph 653A (b) of the Act, if the operating rules of a prescribed CS facility require an acceptance of an offer to which paragraph 653A (a) applies to be made in a particular way, to the extent that the acceptance relates to the securities in the offer, the acceptance must be made in that way.

6.8.02     Acceptances by transferees and nominees of offers made under off‑market bid

                For paragraph 653B (4) (a) of the Act, a notice relating to securities entered on a register or subregister of a prescribed CS facility must be in a form approved by the operating rules of the prescribed CS facility for Part 6.8 of the Act (which may include an electronic form).

Part 6.10            Review and intervention

  

6.10.01   Application for review of Panel decision (Act s 657EA)

                For subsection 657EA (3) of the Act, an application for review of a decision of the Panel must not be made later than 2 business days after the day on which the decision was made.

Chapter 6A  Compulsory acquisitions and buy‑outs

Part 6A.1            Compulsory acquisitions and buy‑outs after takeover bid

  

6A.1.01  Terms on which securities to be acquired

                For paragraph 661C (4) (a) of the Act, an election relating to securities entered on an electronic register or subregister of a prescribed CS facility must be in an electronic form approved by the operating rules of the prescribed CS facility.

Chapter 6CA   Continuous disclosure

  

  

6CA.1.01    Continuous disclosure: other disclosing entities

                For paragraph 675 (2) (d) of the Act, the disclosure of information under section 675 of the Act is not required if:

                (a)    a reasonable person would not expect the information to be disclosed; and

               (b)    the information is confidential; and

                (c)    at least 1 of the following applies:

                          (i)    the disclosure of the information would contravene a law;

                         (ii)    the information is about a matter of supposition;

                        (iii)    the information is not definite enough to make disclosure appropriate;

                        (iv)    the information relates to an incomplete proposal or a matter that is in the course of negotiation;

                         (v)    the information was prepared or created for the internal management purposes of the entity;

                        (vi)    the information is a trade secret.

Chapter 6D  Fundraising

Part 6D.2            Disclosure to investors about securities

  

6D.2.01  Exemption — member shares

                Part 6D.2 of the Act does not apply to an offer of a member share within the meaning given by regulation 12.8.03.

6D.2.02  Exemption — foreign companies

                Part 6D.2 of the Act does not apply to an offer under a dividend reinvestment plan or bonus share plan of fully‑paid shares in a foreign company to an existing holder of shares in the foreign company.

6D.2.03  Sophisticated investors

         (1)   For subparagraph 708 (8) (c) (i) of the Act, $2.5 million is specified.

         (2)   For subparagraph 708 (8) (c) (ii) of the Act, $250 000 is specified.

Note   Under subsection 708 (8) of the Act, an offer of a body’s securities does not need disclosure to investors under Part 6D.2 of the Act if it appears from a certificate given by a qualified accountant no more than 6 months before the offer is made that the person to whom the offer is made:

(a)   has net assets of at least the amount specified in regulations made for the purposes of subparagraph 708 (8) (c) (i); or

(b)   has a gross income for each of the last 2 financial years of at least the amount specified in regulations made for the purposes of subparagraph 708 (8) (c) (ii).

Part 6D.5            Fundraising — miscellaneous

6D.5.01  Warrants that are securities

                For paragraph 742 (1) (b) of the Act, a warrant that is a security is exempted from all provisions of Chapter 6D of the Act.

6D.5.02  Modification of paragraph 708 (8) (c) of the Act: renewal period for accountants’ certificates

                For paragraph 742 (1) (c) of the Act, section 708 of the Act applies as if paragraph 708 (8) (c) of the Act were modified by omitting “6 months” and substituting “2 years”.