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ASIC Class Order [CO 02/319]

Authoritative Version
CO 02/319 Orders/ASIC Class Orders as amended, taking into account amendments up to ASIC Class Order [CO 09/532]
Administered by: Treasury
Registered 21 Jul 2011
Start Date 09 Jul 2009
End Date 30 Aug 2016
Date of repeal 30 Aug 2016
Repealed by ASIC Corporations (Repeal) Instrument 2016/791

ASIC Class Order [CO 02/319]

Horse racing syndicates

This instrument has effect under s601QA(1)(a) and  741(1)(a) of the Corporations Act 2001.

This compilation was prepared on 21 July 2009 taking into account amendments up to [CO 09/532]. See the table at the end of this class order.

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs  601QA(1)(a) and  741(1)(a) — Revocation and Exemption

Under paragraphs 601QA(1)(a) and 741(1)(a) of the Corporations Act 2001 (the “Act”), the Australian Securities and Investments Commission (“ASIC”) hereby revokes Class Order [00/207].

And under paragraph 601QA(1)(a), ASIC hereby exempts each person included in the class of persons mentioned in Schedule A (each a “Promoter”) and the manager in the case referred to in Schedule B from section 601ED of the Act on the conditions referred to in Schedule D and for so long as they are met.

SCHEDULE A

Any person who is registered by a Lead Regulator as the promoter of a scheme of the kind described in Schedule B.

SCHEDULE B

The operation of a scheme:

(i)    the principal purpose of which is the racing of a horse or horses (“the scheme horses”) named and (prior to any offer or invitation in relation to the scheme) described in the Disclosure Statement;

(ii)   in respect of which there are at no time more than 20 participants;

(iii)  in respect of which the total amount sought from the issue of scheme interests to participants does not exceed $250,000;

(iv)  in respect of which the Disclosure Statement contains an undertaking by the Promoter that the Promoter will:

(a)   within 45 days of the scheme being fully subscribed, register the scheme with the Lead Regulator; and

(b)   prior to registration of the scheme with the Lead Regulator, ensure that the participants in the scheme either have unencumbered title to the whole of the scheme horses or lease the whole of the scheme horses pursuant to a finance lease agreement in a standard form;

(v)   which is subject to terms to the effect of those described in Schedule C (the “Terms”) unless the Terms are excluded, modified or varied with the written agreement of all participants in the scheme;

(vi)  in respect of which a Disclosure Statement is approved by a Lead Regulator.

SCHEDULE C

1     The manager of the scheme shall manage the scheme in accordance with the terms of any agreement (“the Agreement”) governing the scheme approved by the Lead Regulator throughout its duration unless that person:

(a)   retires with the prior written consent of the majority of the participants of the scheme not associated with the retiring manager;

(b)   is removed in accordance with the terms of the Agreement; or

(c)   otherwise retires or is removed with the consent of the Lead Regulator;

2     The manager shall:

(a)   in respect of the scheme keep such accounting records as correctly record and explain the transactions and financial position of the scheme, such records to be kept in such a way as will enable true and fair profit and loss accounts and a statement of assets and liabilities to be prepared in respect of the scheme from time to time;

(b)   in respect of each financial year other than a financial year that ended before the commencement of the scheme prepare a true and fair profit and loss account and statement of assets and liabilities containing such information and matters as correctly record and explain the transactions and financial position of the scheme (“the Accounts”) and lodge the Accounts with the Lead Regulator within 90 days after the end of each financial year (being 30 June or such other day as specified in any agreement approved by the Lead Regulator as the day on which the financial year shall end) in respect of the relevant financial year and in addition lodge with ASIC a copy of the Accounts in respect of the last preceding financial year within 14 days after receipt of a written request to do so by ASIC; and

(c)   open and maintain a separate account with an Australian bank in respect of the scheme which account shall be used for the  deposit and payment of all moneys relating to the operation of the  scheme.

SCHEDULE D

The Promoter:

1     must:

(a)   at all times during the 2 year period starting on the Commencement Date either:

(i)    hold a dealers licence under Part 7.3 of the Act as in force immediately prior to the Commencement Date which is subject to conditions and restrictions which refer to Class Orders [92/327], [98/65] or [00/207]; or

(ii)   hold an Australian financial services licence covering the provision of financial services relating to the scheme; and

(b)   from the end of the 2 year period starting on the Commencement Date at all times thereafter during the life of the scheme hold an Australian financial services licence covering the provision of financial services relating to the scheme;

2      [Deleted]

3     promptly provides the Lead Regulator with a copy of each of the following:

(a)   any agreement establishing or affecting the Promoter's scheme;

(b)   any agreement in relation to the Promoter's scheme to which any scheme participant is a party;

(c)   any information, including any Disclosure Statement in relation to the Promoter's scheme, provided by the Promoter to an offeree;

(d)   any advertisement in respect of the Promoter's scheme; and

(e)   any finance lease proposed to be used by participants in the Promoter's scheme;

4     does not provide an offeree with a Disclosure Statement unless it has received the prior approval of the Lead Regulator;

5     does not, without the prior approval of the Lead Regulator, advertise scheme interests or publish any statement that is reasonably likely to induce people to acquire scheme interests;

6     provides any assistance or information reasonably required by the Lead Regulator;

7     complies with any rules, regulations or guidelines made by the Lead Regulator to ensure that a scheme of the kind described in Schedule B is honestly, efficiently and fairly operated;

8     provides any assistance or information reasonably required by ASIC in relation to any scheme promoted by the Promoter;

9     if the Promoter is not the manager of the scheme — states in the Disclosure Statement that the manager will be required to manage the scheme in accordance with the terms of any agreement governing the scheme approved by the Lead Regulator and any rules, regulations or guidelines made by the Lead Regulator in respect of such manager or management;

10   prior to registration of the scheme with the Lead Regulator, ensures that the participants in the scheme either have unencumbered title to the whole of the scheme horses or lease the whole of the scheme horses pursuant to a finance lease agreement in standard form;

11   within 45 days of the scheme being fully subscribed, registers the scheme with the Lead Regulator;

12   if the scheme is not fully subscribed within six months after the date on which the Disclosure Statement in respect of that scheme is approved by the Lead Regulator, repays all money received from any person who applied to participate in the scheme, together with interest (if any) which accrued in respect of that money, within 10 business days after the expiry of that six month period;

13   in the case of a Promoter who holds a dealers licence — discharges the obligations which are incurred by a dealer in respect of its representatives by virtue of Division 4 of Part 7.3 of the Act as in force immediately prior to the Commencement Date, or would be so incurred were it not for the operation of regulation 7.3.11 of the Corporations Regulations as then in force and Class Order [00/207];

14   is not in breach of and does not breach the conditions and restrictions which are included or expressed to be included in any dealers licence or Australian financial services licence held by the Promoter as such conditions or restrictions are varied by ASIC from time to time; and

15   complies with section  1017D of the Act as if interests in the scheme were a managed investment product.

Interpretation

For the purpose of this instrument:

“Disclosure Statement” means:

(a)   where the new product disclosure provisions (as defined in section  1438 of the Act) apply to the interests in the scheme being offered, issued or recommended — a Product Disclosure Statement; or

(b)   otherwise — a written notice or other instrument which:

(i)    offers for issue, or invites applications for the issue of, any scheme interest; and

(ii)   contains all the information which, assuming the offer needed disclosure to investors under Part 6D.2 of the Act as in force immediately before the Commencement Date, would be required by sections  710 and  711 of the Act as so in force (other than subsection 711(7)) to be included in a prospectus used for the offer.

“Lead Regulator” means one of the following bodies with whom the Promoter is registered and with whom the Promoter's scheme is or is proposed to be registered:– New South Wales Thoroughbred Racing Board, Racing Victoria Limited, Thoroughbred Racing S.A. Limited, Queensland Thoroughbred Racing Board, Racing and Wagering Western Australia, Alice Springs Turf Club, Darwin Turf Club, Greyhound and Harness Racing Regulatory Authority, The Queensland Harness Racing Board, Harness Racing Victoria Board.

“manager” means the person so named in the Disclosure Statement for the scheme or the person so appointed in accordance with the terms of any agreement governing the scheme approved by the Lead Regulator, or otherwise appointed with the approval of the Lead Regulator.

“offeree” means a person who is offered a scheme interest.

“participant” means any person who holds a beneficial interest in a scheme whether jointly or otherwise.

“scheme” means a managed investment scheme complying with the terms of Schedule B.

“scheme interest” means an interest in a scheme of the kind described in Schedule B.

“standard form”, in relation to a finance lease agreement, means a form approved for that purpose by the Lead Regulator with whom the Promoter is registered in relation to the scheme for which the lease is to be used.

Commencement

This instrument takes effect on the commencement of Schedule 1 to the Financial Services Reform Act 2001 (the “Commencement Date”).

 

 

Notes to ASIC Class Order [CO 02/319]

Note 1

ASIC Class Order [CO 02/319] (in force under s601QA(1)(a) and  741(1)(a) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the tables below.

Table of Instruments

Instrument number

Date of making or FRLI registration

Date of commencement

Application, saving or transitional provisions

[CO 02/319]

15/2/2002 (see F2006B01668)

11/3/2002

 

[CO 03/66]

4/2/2003 (see F2006B01669)

4/2/2003

-

[CO 03/158]

6/3/2003 (see F2006B01670)

6/3/2003

-

[CO 03/840]

25/9/2003 (see F2006B01671)

25/9/2003

-

[CO 06/264]

29/5/2006 (see F2006L01651)

29/5/2006

-

[CO 09/532]

9/7/2009 (see F2009L02723)

9/7/2009

-

Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Sch D, para 1..............

rs. [CO 03/158]

Sch D, para 2..............

rep. [CO 03/158]

Interpretation...............

am. [CO 03/66]; [CO 03/840]; [CO 06/264] and [CO 09/532]