Corporations Regulations 2001

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

These Regulations are the Corporations Regulations 2001.

1.0.01A Commencement

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

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.

carbon abatement contract has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011.

choice product has the same meaning as in the SIS Act.

CPI means the Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Bureau of Statistics.

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

(ca) a CGS depository interest mentioned in paragraph 1073A(1)(da) 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.

generic MySuper product: a class of beneficial interest in a superannuation entity is a generic MySuper product if:

(a) the superannuation entity is a regulated superannuation fund; and

(b) the RSE licensee of the fund (within the meaning of the SIS Act) is authorised to offer that class of beneficial interest in the fund as a MySuper product under section 29T of the SIS Act; and

(c) the RSE licensee of the fund (within the meaning of the SIS Act) is not authorised to offer that class of beneficial interest in the fund as a MySuper product because section 29TA or 29TB of the SIS Act is satisfied in relation to the class.

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:

(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; or

(ga) a carbon unit;

(gb) an Australian carbon credit unit;

(gc) an eligible international emissions unit;

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.

MySuper product has the same meaning as in the SIS Act.

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

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.

qualifying gas exchange product means an arrangement for the physical delivery of natural gas or related goods or services, including pipeline capacity.

qualifying gas trading exchange means a facility:

(a) established by the Australian Energy Market Operator Limited (ACN 072 010 327) exercising its functions under subsection 91BRK(1) of the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 (SA); and

(b) through which persons may elect to buy and sell natural gas or related goods or services (including pipeline capacity).

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:

(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

(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

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

(a) Asia Pacific Exchange Limited;

(b) ASX Limited;

(d) National Stock Exchange of Australia Limited;

(e) SIM Venture Securities Exchange Ltd.

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

(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

(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

(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

(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:

(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:

(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:

(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

(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 1.2—Interpretation

Division 1—General

1.2.01 Remuneration recommendations (Act s 9B)

For paragraph 9B(2)(f) of the Act, a recommendation, or advice or information, provided in relation to one or more members of the key management personnel for a company by an employee of a company within the same consolidated entity, is not a remuneration recommendation.

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.;

(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;

(d) making an offer that satisfies paragraphs 1019D(1)(a) to (d) of the Act;

(e) making an invitation that, were it an offer to purchase a financial product, would be an offer that satisfies paragraphs 1019D(1)(a) to (d) of the Act.

Note: See subsection 1019D(1) of the Act for a description of 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

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;

(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

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

Part 2D.7—Ban on hedging remuneration of key management personnel

2D.7.01 Hedging arrangements (Act s 206J(3))

(1) For subsection 206J(3) of the Act, an arrangement in the following table is to be treated as an arrangement that has the effect of limiting the exposure of a member mentioned in subsection 206J(1) of the Act to the risk mentioned in that subsection.

Item	Arrangement
1	A put option on incentive remuneration
2	A short position on shares that forms part of incentive remuneration
3	An income protection insurance contract in which the insurable risk event affects the financial value of remuneration or equity or an equity‑related instrument for the key management personnel

(2) For subsection 206J(3) of the Act, an arrangement in the following table is not to be treated as an arrangement that has the effect of limiting the exposure of a member mentioned in subsection 206J(1) of the Act to the risk mentioned in that subsection.

Item	Arrangement
1	An income protection insurance contract in which the insurable risk event is the death, incapacity or illness of any of the key management personnel
2	A foreign currency risk arrangement

(3) In this regulation, a short position is a position in relation to shares in a listed entity where the quantity of the shares that a person has is less than the quantity of the shares that the person has an obligation to deliver.

(4) In subregulation (3), the person has the shares if:

(a) the person is holding the shares on the person’s own behalf; or

(b) another person is holding the shares on the person’s behalf; or

(d) the person has vested title in the shares in a borrower, or in an entity nominated by the borrower, under a securities lending arrangement.

(5) In subregulation (3), the shares that the person has an obligation to deliver are the shares that the person:

(a) has an obligation to deliver under a sale agreement where the shares have not been delivered; or

(b) has an obligation to vest title in a lender under a securities lending arrangement; or

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;

(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;

(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 (b) ending immediately before the date on which the financial report is authorised for issue	(a) The name of each person involved in the change (b) The position involved (c) The date on which the change occurred
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
	Remuneration disclosure
17	For any option or right over equity instruments issued or issuable by the disclosing entity and any of its subsidiaries held, whether directly, indirectly or beneficially, by each key management person, or by a close member of the family of that person, or an entity over which the person or the family member has, either directly or indirectly, control, joint control or significant influence, disclosure must be made of the number of rights and options	(a) Options and rights held at the start of the reporting period (b) Options and rights granted during the reporting period as compensation (c) Options and rights exercised during the reporting period (d) Options and rights resulting from any other change during the reporting period (e) Options and rights held at the end of the reporting period (f) Options and rights vested at the end of the reporting period (g) Options and rights vested and exercisable at the end of the reporting period
		(h) Options and rights vested and unexercisable at the end of the reporting period
18	For any equity instrument (other than an option or a right) held directly, indirectly or beneficially, by each key management person, or by a close member of the family of that person, or an entity over which the person or the family member has, either directly or indirectly, control, joint control or significant influence, disclosure must be made of the number of equity instruments	(a) Equity instruments held at the start of the reporting period (b) Equity instruments granted during the reporting period as compensation (c) Equity instruments received during the reporting period on the exercise of an option or right (d) Equity instruments resulting from any other change during the reporting period (e) Equity instruments held at the end of the reporting period (f) Equity instruments if included in the number disclosed under paragraph (e), held nominally at the end of the reporting period
19	For a transaction involving an equity instrument, other than share‑based payment compensation, that has occurred between a key management person, a close member of the family of that person, or an entity over which the person or the family member has, either directly or indirectly, control, joint control or significant influence and the issuing entity during the reporting period, if the terms or conditions of the transaction were more favourable than those that it is reasonable to expect the entity would have adopted if dealing at arms‑length with an unrelated person	(a) The nature of each different type of transaction (b) For each transaction, the terms and conditions of the transaction
20	For the aggregate of loans made, guaranteed or secured, directly or indirectly, by the disclosing entity and any of its subsidiaries, in the reporting period in relation to: (a) all key management personnel; and (b) close members of the family of a member of the key management personnel; and (c) an entity over which any of the persons mentioned in paragraphs (a) and (b) have, directly or indirectly, control, joint control or significant influence	(a) The amount outstanding at the start of the reporting period (b) The amount of interest paid and payable in the reporting period to the disclosing entity or to any of the entity’s subsidiaries (c) The difference between the amount disclosed under paragraph (b) and the amount of interest that would have been charged on an arms‑length basis (d) Each write‑down and each allowance for doubtful receivables recognised by the disclosing entity or by any of the entity’s subsidiaries (e) The amount outstanding at the end of the reporting period (f) The number of key management personnel included in the group aggregate at the end of the reporting period (g) A summary of the terms and conditions of the loans
21	If the aggregate of loans made, guaranteed or secured, directly or indirectly, by the disclosing entity and any of its subsidiaries, in the reporting period in relation to: (a) a particular key management person; and (b) close members of the family of the key management person; and (c) an entity over which any of the persons mentioned in paragraphs (a) and (b) has, directly or indirectly, control, joint control or significant influence; is greater than $100 000	(a) The amount outstanding at the start of the reporting period (b) The amount of interest paid and payable in the reporting period to the disclosing entity or to any of the entity’s subsidiaries (c) The difference between the amount disclosed under paragraph (b) and the amount of interest that would have been charged on an arms‑length basis (d) Each write‑down and each allowance for doubtful receivables recognised by the disclosing entity or by any of the entity’s subsidiaries (e) The amount outstanding at the end of the reporting period (f) The highest amount of the key management person’s indebtedness during the reporting period (g) A summary of the terms and conditions of the loans
22	For a transaction during the reporting period between the disclosing entity, or any of its subsidiaries, and a key management person, a close member of the family of that person, or an entity over which the key management person or the family member has, directly or indirectly, control, joint control or significant influence, other than a transaction mentioned in item 19, 20 or 21 or subregulation (3B)	(a) Each type of transaction of a different nature (b) The terms and conditions of each type of transaction or, if there are different categories of terms and conditions within a type of transaction, the terms and conditions of each category of transaction (c) For each type of transaction or, if there are different categories of terms and conditions within a type of transaction, for each category of transaction: (i) the names of the persons involved in the transaction; and (ii) the aggregate amount recognised
23	For each aggregate amount disclosed under item 22	(a) The total of amounts recognised as revenue, separately identifying, if applicable, the total amounts recognised as: (i) interest revenue; or (ii) dividend revenue (b) The total of amounts recognised as expense, separately identifying, if applicable, the total amounts recognised as: (i) interest expense; or (ii) write‑downs of receivables and allowances made for doubtful receivables
		(c) Any further disclosures necessary to provide an understanding of the effects of the transactions on the financial statements prepared in accordance with Australian Accounting Standards
24	For each transaction identified under item 22	(a) The total of all assets, classified into current and non‑current assets, and, if applicable, any allowance for doubtful receivables at the end of the reporting period (b) The total of all liabilities, classified into current and non‑current liabilities

(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.

(3A) For items 20 and 21 of the table in subregulation (1), loans do not include loans involved in transactions in relation to options.

Example: A non‑recourse loan is a loan that is a transaction in relation to an option.

(3B) A transaction with, or an amount that is receivable from or payable under a transaction to, a key management person, a close member of the family of that person, or an entity over which the person or the family member has, directly or indirectly, control, joint control or significant influence, is excluded from the requirements of items 22 to 24 if:

(a) the transaction occurs within a normal employee, customer or supplier relationship on terms and conditions no more favourable than those that it is reasonable to expect the entity would have adopted if dealing at arms‑length with an unrelated person; or

(b) information about the transaction does not have the potential to affect adversely decisions about the allocation of scarce resources made by users of the financial statements, or the discharge of accountability by the key management person; or

(3C) Items 17 to 24 of the table in subregulation (1) apply in relation to a directors’ report for a financial year commencing on or after 1 July 2013.

(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.

Part 2M.4—Auditor

2M.4.01A Membership designations (Act s 324BE)

For paragraph 324BE(1)(b) of the Act, a designation mentioned in an item of the table is prescribed for membership of the professional accounting body mentioned in the item.

Membership designations
Item	Professional accounting body	Designation
1	Institute of Chartered Accountants in Australia	CA; or FCA
2	CPA Australia	CPA; or FCPA
3	Institute of Public Accountants	FIPA; or MIPA

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.4A—Annual transparency reports for auditors

2M.4A.01 Application

This Part applies in relation to annual transparency reports for:

(a) the transparency reporting year in which Schedule 1 to the Corporations Legislation Amendment (Audit Enhancement) Act 2012 commences; and

(b) all later transparency reporting years.

Note: For the definitions of annual transparency report and transparency reporting year, see section 9 of the Act.

2M.4A.02 Content of annual transparency report (Act s 332B)

(1) For subsection 332B(1) of the Act, Schedule 7A sets out the information that an annual transparency report published in accordance with subsection 332A(2) of the Act must contain.

(2) If the report is published by an audit firm or authorised audit company, see Part 2 of Schedule 7A.

(3) If the report is published by an individual auditor, see Part 3 of Schedule 7A.

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

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;

(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

(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;

(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

(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;

(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:

(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.03A Notice of first meeting of creditors

(1) This regulation is made for paragraph 436E(3)(b) of the Act.

(2) The information about a meeting that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the section of the Act or, in the case of a combined notice, the sections of the Act under which the notice is being given;

(e) the time, date and place for the meeting;

(f) the purpose for which the meeting is being convened under that section;

(g) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;

(h) the name and contact details of the administrator;

(i) the date on which the administrator was appointed;

(j) the section of the Act under which the administrator was appointed.

Note: For information about telephone conference facilities in the notice of a meeting, see regulation 5.6.13A.

5.3A.03AB Notice of meeting to decide the company’s future

(1) This regulation is made for paragraph 439A(3)(b) of the Act.

(2) The information about a meeting that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the section of the Act under which the notice is being given;

(e) the time, date and place for the meeting;

(f) the purpose for which the meeting is being convened under that section;

(g) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;

(h) the name and contact details of the administrator.

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.06A Notice of resolution to wind up voluntarily

(1) This regulation is made for paragraph 446A(5)(b) of the Act.

(2) The period within which a notice is to be published is 15 business days after the day on which the company is taken to have passed the special resolution that the company be wound up voluntarily.

5.3A.06AB Notice of meeting of creditors

(1) This regulation is made for paragraph 449C(5)(b) of the Act.

(2) The information about a meeting that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the section of the Act under which the notice is being given;

(e) the time, date and place for the meeting;

(f) the purpose for which the meeting is being convened under that section;

(g) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;

(h) the name and contact details of the administrator.

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 the notice to be lodged with ASIC in accordance with subregulation 5.6.75(4) within 15 business days after that day.

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

(d) by a contributory.

5.3A.07A Notice of appointment of administrator

(1) This regulation is made for paragraph 450A(1)(b) of the Act.

(2) The information about an appointment that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the section of the Act or, in the case of a combined notice, the sections of the Act under which the notice is being given;

(e) the name and contact details of the administrator;

(f) the date on which the administrator was appointed;

(g) the section of the Act under which the administrator was appointed.

Note: See regulation 5.3.07A for the contents of the notice that may be combined with the notice under this regulation, in accordance with subsection 450A(1A) of the Act.

(3) The period within which the notice is to be published is 3 business days after an administrator is appointed.

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.

5.4.01A Notice of application to wind up a company

(1) This regulation is made for paragraph 465A(c) of the Act.

(2) The information about an application that is to be set out in a notice is at least the following information:

(a) if the court rules require particular information to be published for the application and the court has not dispensed with publication under the rules—that information;

(b) if the court rules do not require particular information to be published, or the court has dispensed with publication under the rules:

(i) the name of the company; and

(ii) any trading name of the company; and

(iii) the ACN of the company; and

(iv) the date on which the application was filed; and

(v) the identifying number allocated by the court when the application was filed; and

(vi) the name of the applicant; and

(vii) the address for service of the applicant; and

(viii) the name and address of the court where the application will be heard; and

(ix) the time and date of the court hearing; and

(x) the way in which documents that are filed in relation to the application may be obtained.

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 5.4C—Winding up by ASIC

5.4C.01 Notice of intention to order winding up of a company

(1) For subparagraph 489EA(6)(b)(ii) of the Act, this regulation prescribes the manner of publishing notice of ASIC’s intention to make an order under subsection 489EA(1), (2), (3) or (4) of the Act.

(2) Notice is to be published on the publication website, established under subsection 5.6.75(1), at least 10 business days before ASIC makes the order.

Part 5.5—Voluntary winding up

5.5.01 Notice of resolution to wind up voluntarily

(1) This regulation is made for paragraph 491(2)(b) of the Act.

(2) The information about a resolution that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the section of the Act under which the notice is being given;

(e) the name and contact details of the liquidator;

(f) the date on which the resolution was passed.

(3) The period within which the notice is to be published is 21 days after the special resolution to wind up the company voluntarily is passed.

5.5.02 Notice of meeting of creditors

(1) This regulation is made for paragraph 497(2)(d) of the Act.

(2) The period within which a notice is to be published is not less than 7 days, but no more than 14 days, before the day that is fixed for holding the meeting of the company’s creditors.

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

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);

(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):

(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

(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

(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

(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

(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 lodge, with ASIC, a notice of the meeting in accordance with subregulation 5.6.75(4).

(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.

(3) The notice must state at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the section of the Act under which the notice is being given;

(e) the time, date and place for the meeting;

(f) the purpose for which the meeting is being convened under that section;

(g) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;

(h) the name and contact details of the convenor of the meeting.

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

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:

(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.

(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

(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

(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

(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

(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

(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:

(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

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

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

(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

(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

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

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) The notice must be lodged with ASIC in accordance with subregulation 5.6.75(4).

(3) The notice must state at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the day fixed under subregulation (1).

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

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

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 the notice:

(a) by lodging the notice with ASIC in accordance with subregulation 5.6.75(4); 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.

(3) The notice must state at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the day fixed under subregulation (1).

(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

(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:

(d) reject all or part of the formal proof of debt or claim; or

(e) require further evidence in support of it.

(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.

(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.

(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:

(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.

(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.

(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 lodging a notice with ASIC in accordance with subregulation 5.6.75(4); 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.

(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.

(2A) Also, the notice must state at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(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:

(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.

(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

(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 lodged with ASIC in accordance with subregulation 5.6.75(4), the liquidator must lodge another notice with ASIC for publication on the publication website 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.

5.6.70B Notice of disclaimer

(1) This regulation is made for subsection 568A(2) of the Act.

(2) The information about a disclaimer that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(d) the paragraph of subsection 568(1) of the Act under which the property is disclaimed;

(e) a description of the property;

(f) if the property is a contract (other than an unprofitable contract or a lease of land)—the date on which the Court granted leave under subsection 568(1A) of the Act;

(g) the name and contact details of the liquidator.

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;

(d) Malaysia;

(e) New Zealand;

(f) the Republic of Singapore;

(g) Switzerland;

(h) the United Kingdom;

(i) the United States of America.

5.6.75 Publication in the prescribed manner

(1) ASIC must establish and maintain a website (the publication website) on which it publishes notices that have to be:

(a) published in the prescribed manner under Part 5.1, 5.3A, 5.4, 5.4B, 5.4C, 5.5, 5.6, 5.8 or 5A.1 of the Act; or

(b) lodged in accordance with this section.

(2) ASIC is taken to have complied with a requirement to publish a notice, or a copy of a notice, in the prescribed manner if ASIC publishes the notice on the publication website.

(3) A person (other than ASIC) is taken to have complied with a requirement to publish a notice, or a copy of a notice, in the prescribed manner if the person electronically lodges the notice with ASIC for publication by ASIC.

(4) A person electronically lodges a notice, or a copy of a notice, with ASIC if:

(a) the person:

(i) pays the fee prescribed under the Corporations (Fees) Regulations 2001; and

(ii) sends the notice in an electronic communication to the portal for ASIC’s publication website, in the format required by ASIC; and

(iii) receives an electronic communication from ASIC that confirms the fee has been paid and the notice has been lodged; or

(b) the notice, or a copy of the notice, appears on the publication website.

(5) If a person lodges a notice, or a copy of a notice, in accordance with subsection (4), ASIC must publish the notice or copy of the notice on the publication website.

(6) In this regulation:

electronic communication has the meaning given by subsection 5(1) of the Electronic Transactions Act 1999.

Note: This regulation is made for section 1367A of the Act.

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:

(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:

(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

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

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 schemes not managed investment schemes

(1) For paragraph (n) of the definition of managed investment scheme in section 9 of the Act, each of the following schemes is declared not to be a managed investment scheme:

(a) an approved benefit fund within the meaning given by subsection 16B (1) of the Life Insurance Act 1995;

(b) a scheme (a litigation funding scheme) that has all of the following features:

(i) the dominant purpose of the scheme is for each of its general members to seek remedies to which the general member may be legally entitled;

(ii) the possible entitlement of each of its general members to remedies arises out of:

(A) the same, similar or related transactions or circumstances that give rise to a common issue of law or fact; or

(B) different transactions or circumstances but the claims of the general members can be appropriately dealt with together;

(iii) the possible entitlement of each of its general members to remedies relates to transactions or circumstances that occurred before or after the first funding agreement (dealing with any issue of interests in the scheme) is finalised;

(iv) the steps taken to seek remedies for each of its general members include a lawyer providing services in relation to:

(A) making a demand for payment in relation to a claim; or

(B) lodging a proof of debt; or

(D) investigating a potential or actual claim; or

(E) negotiating a settlement of a claim; or

(F) administering a deed of settlement or scheme of settlement relating to a claim;

(v) a person (the funder) provides funds, indemnities or both under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the scheme is not successful in seeking remedies) to enable the general members of the scheme to seek remedies;

(vi) the funder is not a lawyer or legal practice that provides a service for which some or all of the fees, disbursements or both are payable only on success;

(i) the scheme relates to an externally‑administered body corporate;

(ii) the creditors or members of the body corporate provide funds (including through a trust), indemnities or both to the body corporate or external administrator;

(iii) the funds, indemnities or both enable the external administrator or the body corporate to:

(A) conduct investigations; or

(B) seek or enforce a remedy against a third party; or

(C) defend proceedings brought against the body corporate in relation to the external administration of the body corporate (other than in relation to allegations, made by creditors or members of the body corporate, of negligence or non‑performance of duties by the external administrator);

(d) an arrangement (a litigation funding arrangement) that has all of the following features:

(i) the dominant purpose of the arrangement is:

(A) for a general member to seek remedies to which the general member may be legally entitled; or

(B) proving claims made by one individual under Division 6 of Part 5.6 of the Act (which may include the funding of the preparation and the lodgement of the proofs);

(ii) the steps taken to seek remedies include a lawyer providing services in relation to:

(A) making a demand for payment in relation to a claim; or

(B) lodging a proof of debt; or

(D) investigating a potential or actual claim; or

(E) negotiating a settlement of a claim; or

(F) administering a deed of settlement or scheme of settlement relating to a claim;

(iii) a person (the funder) provides funds, indemnities or both under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the arrangement is not successful in seeking remedies) to enable the general member of the arrangement to seek remedies;

(iv) the funder is not a lawyer or legal practice that provides a service for which some or all of the fees, disbursements or both are payable only on success;

(v) the arrangement is not a litigation funding scheme.

(2) In this regulation:

external administrator includes an administrator, a liquidator (including a provisional liquidator) and a controller.

general member:

(a) in relation to a litigation funding scheme—means a member of the scheme who:

(i) is not the funder; and

(ii) is not a lawyer providing services for the purposes of the scheme; and

(b) in relation to a litigation funding arrangement—means the party to the arrangement who:

(i) is not the funder; and

(ii) is not a lawyer providing services for the purposes of the arrangement.

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.11.03A How to work out the value of an interest

If a registered scheme is quoted on 2 or more prescribed financial markets, paragraph 253F(a) of the Act is to be applied so that the value of an interest in the registered scheme is taken to be the last sale price, on the market on which the scheme is listed, on the trading day immediately before the day on which the poll is taken.

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 Prescribed requirements for publication

For the definition of publish in section 601RAA of the Act:

(a) a notice mentioned in paragraph 601WBH(b) of the Act is to be published in the Gazette and on the ASIC website; and

(b) a notice mentioned in paragraph 601WDA(1)(b) or subsection 601WDA(3) of the Act is to be published in a national newspaper and on the transferring company’s website.

5D.1.01A Meaning of trustee company

(1) For subsection 601RAB(1) of the Act, a company that is listed in Schedule 8AA is 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;

(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

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

(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

(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

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;

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;

(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;

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;

(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 be made at intervals not exceeding 6 months.

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 credit or debit a profit or loss from the investment to the unit holders of the common fund:

(a) in proportion to the amount invested in the common fund by the unit holders at the time of the realisation; and

(b) within 14 days 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

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.’

Part 5D.4—Obligations of receiving company after transfer

5D.4.01 Preserving rights under dispute resolution systems and compensation arrangements

(1) This regulation applies if ASIC makes a determination under subsection 601WBA(1) of the Act that there is to be a transfer of estate assets and liabilities from a transferring company to a receiving company.

(2) For section 601SAB of the Act, the obligations of the receiving company include the provision to retail clients of access to the receiving company’s compensation arrangements, and dispute resolution system, in relation to a complaint arising from the provision of traditional trustee services by the transferring company.

(3) In this regulation:

compensation arrangements, for a receiving company, means the arrangements the receiving company is required to have under subsection 912B(1) of the Act.

dispute resolution system, for a receiving company, means the dispute resolution system the receiving company is required to have under paragraph 912A(1)(g) of the Act.

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

(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).

6D.2.04 Simple corporate bonds—base prospectus

(1) For subsections 713C(5) and (6) of the Act, this regulation specifies:

(a) the information that must be contained in a base prospectus for simple corporate bonds; and

(b) the statements that must be set out in a base prospectus for simple corporate bonds.

(2) Subregulation (1) does not prevent a base prospectus from containing other material or setting out other statements.

(3) A base prospectus must contain a table of contents and sections dealing with the following matters:

(a) Section 1: What you need to know;

(b) Section 2: About the bonds;

(d) Section 4: Risks;

(e) Section 5: Other information you should consider;

(f) Section 6: Glossary.

Section 1: What you need to know

(4) The following statements, or statements to the same effect as the following statements, must be set out in section 1 of a base prospectus:

(a) This document will be the base prospectus for these bonds for 3 years from the time it is lodged with the Australian Securities and Investments Commission.

(b) There will be a separate offer‑specific prospectus for each offer of bonds during the life of this base prospectus.

(c) To make an informed investment decision about these bonds, you should read the offer‑specific prospectus and this base prospectus before investing.

(d) This base prospectus alone is not an offer. The offer is contained in the offer‑specific prospectus, this base prospectus and other information that is incorporated by reference into the offer‑specific prospectus and this base prospectus.

(e) To find out more about the pros and cons of investing in corporate bonds, visit ASIC’s MoneySmart website: http://moneysmart.gov.au.

Section 2: About the bonds

(5) The following information must be contained in section 2 of a base prospectus:

(a) information on the program of the bonds (if applicable), including any pre‑planned future issues of bonds;

(b) details of the key aspects of the bonds, including information about the following matters:

(i) the interaction between the coupon rate and yield;

(ii) the interest rate of the bonds;

(iii) the term of the bonds;

(iv) the maturity and redemption of the bonds;

(v) events that will constitute default;

(vi) guarantees in relation to the bonds and information about any guarantors;

(vii) security and ranking.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, a base prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

Section 3: About the issuer

(6) The following information must be contained in section 3 of a base prospectus:

(a) brief information about the issuing body that includes a summary of the body’s:

(i) business; and

(ii) management personnel (including directors and senior managers); and

(iii) business strategy; and

(iv) governance arrangements;

(b) the trust deed relating to the issuing body;

(d) additional information about the issuing body that relates to the investment decision, and where that information can be obtained, including:

(i) a reference to the issuing body’s annual report and financial report; and

(ii) a reference to any half‑year report that the issuing body lodged with ASIC after it lodged an annual financial report and before it lodged the most recent copy of the base prospectus with ASIC; and

(e) the key financial ratios, calculated in accordance with regulation 6D.2.06, that are relevant to the issuing body, accompanied by:

(i) an explanation of those key financial ratios; and

(ii) information about how a change to those key financial ratios may affect the bonds to be issued under the base prospectus.

(7) The following statements, or statements to the same effect as the following statements, must be set out in section 3 of a base prospectus:

A publicly listed entity must release financial reports and continuously disclose information that may have an impact on its share or bond price. This information is available publicly on the relevant market exchange. You should consider this information when making an investment decision about bonds. While this information is important, it is not considered part of the disclosure document for the offer of bonds using this base prospectus.

Section 4: Risks

(8) The following information must be contained in section 4 of a base prospectus:

(a) the main risks associated with bonds and an explanation of those risks;

(b) the issuing body’s main business risks;

(c) if other risks specific to bonds may be relevant to a consumer’s investment decision—an explanation of those other risks;

(d) if other business risks may be relevant to a consumer’s investment decision—an explanation of those other risks.

Section 5: Other information you should consider

(9) The following information must be contained in section 5 of a base prospectus:

(a) an explanation of the consequences, relating to taxation, of investing in bonds;

(b) information relating to privacy in general and the issuing body’s obligations under privacy laws;

(10) The following statements, or statements to the same effect as the following statements, must be set out in section 5 of a base prospectus:

(a) More information on the tax implications associated with investing in bonds can be found on the Australian Taxation Office’s website: http://www.ato.gov.au.

(b) The following is a list of material referred to, but not set out in full, in this base prospectus. However, the material (or relevant extracts of the material) is incorporated by reference and, as such, forms part of the offer of bonds covered by this base prospectus.

(11) Section 5 of a base prospectus must contain a list of material referred to, but not set out in full, in the prospectus.

Section 6: Glossary

(12) The information that section 6 of a base prospectus must contain is information that is adequate to explain the meanings of terms required to understand the content of:

(a) the base prospectus; or

(b) the offer‑specific prospectus that is combined with the base prospectus to create a 2‑part simple corporate bonds prospectus.

Note: See section 713B of the Act.

6D.2.05 Simple corporate bonds—offer‑specific prospectus

(1) For subsections 713D(6) and (7) of the Act, this regulation specifies:

(a) the information that must be contained in an offer‑specific prospectus for an offer of simple corporate bonds; and

(b) the statements that must be set out in an offer‑specific prospectus for an offer of simple corporate bonds.

(2) Subregulation (1) does not prevent an offer‑specific prospectus from containing other material or setting out other statements.

(3) An offer‑specific prospectus for an offer of simple corporate bonds must contain a table of contents and sections dealing with the following matters:

(a) Section 1: What you need to know;

(b) Section 2: Key dates and offer details;

Section 1: What you need to know

(4) The following statements, or statements to the same effect as the following statements, must be set out in section 1 of an offer‑specific prospectus:

(a) This offer‑specific prospectus is not a summary of the information contained in the base prospectus.

(b) This offer‑specific prospectus is only relevant for this offer of bonds.

(d) This offer‑specific prospectus provides offer details, key dates and other relevant information for the offer. The base prospectus for this offer provides additional information that is also critical to your decision. You should take all of the information in the base prospectus into consideration before making your decision in relation to this offer.

(e) To find out more about the pros and cons of investing in corporate bonds, visit ASIC’s MoneySmart website: http://moneysmart.gov.au.

Section 2: Key dates and offer details

(5) The following information must be contained in section 2 of an offer‑specific prospectus:

(a) the terms of the offer, which must include the following:

(i) the name of the issuing body;

(ii) the size of the series, or tranche, to which the offer relates;

(iii) the face value of the bonds;

(iv) the term of the bonds;

(v) the maturity date of the bonds;

(vi) guarantees in relation to the bonds and information about any guarantors;

(vii) the interest rate of the bonds;

(viii) interest payment dates;

(ix) events that will constitute default;

(x) details of any existing security;

(xi) the structure of the offer;

(xii) the minimum size of an application for the bonds;

(xiii) the prescribed financial market on which the bonds will be listed;

(b) a short explanation of the circumstances in which the bonds can be redeemed;

(d) either:

(i) if a provision of the base prospectus contains information about any selling restrictions—a reference to the provision; or

(ii) if subparagraph (i) does not apply—information about any selling restrictions;

(e) an explanation of where investors can obtain additional information about the offer, including:

(i) a reference to financial advisors or other professional advisors; and

(ii) the contact details of the issuing body.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, an offer‑specific prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

Section 3: Offer‑specific information you should consider

(6) The following information must be contained in section 3 of an offer‑specific prospectus:

(a) any significant information necessary to update the information in the base prospectus;

(b) any notices that the issuing body has issued to explain changes that have occurred to the base prospectus since it was lodged with ASIC;

(c) the key financial ratios, calculated in accordance with regulation 6D.2.06, that are relevant to the issuing body, accompanied by:

(i) details of any change in those key financial ratios since the last offer‑specific prospectus was issued; or

(ii) if no offer‑specific prospectus has previously been issued—details of any change in those key financial ratios compared with the key financial ratios at the time the base prospectus was lodged with ASIC;

(d) an explanation of how the issuing body will use the funds raised by issuing the bonds;

(e) a brief summary of the effect of the offer on the issuing body;

(f) the ranking of the bonds and any other debt on issue;

(g) an explanation of any changes to the risks disclosed in the base prospectus;

(h) the amount that anyone has paid or agreed to pay, or the nature and value of any benefit that anyone has given or agreed to give, to:

(i) any directors or proposed directors of the issuing body; or

(ii) a person named in the prospectus as performing a function in a professional, advisory or other capacity in connection with the preparation or distribution of the prospectus; or

(iii) a promoter of the issuing body; or

(iv) an underwriter (but not a sub‑underwriter) to the issue or sale or a financial services licensee named in the prospectus as a financial services licensee involved in the issue or sale.

6D.2.06 Simple corporate bonds—key financial ratios relevant to issuing body

(1) For paragraphs 6D.2.04(6)(e) and 6D.2.05(6)(c), the key financial ratios that are relevant to an issuing body are:

(a) the gearing ratio; and

(b) the working capital ratio; and

(2) The key financial ratios referred to in subregulation (1) must be calculated in accordance with subregulations (3) to (5), based on the issuing body’s most recent financial statements or, if applicable, the issuing body’s consolidated financial statements.

(3) The gearing ratio must be calculated using the following formula:

(4) The working capital ratio must be calculated using the following formula:

(5) The interest cover ratio must be calculated using the following formula:

where:

EBITDA means earnings before net interest expense, taxes, depreciation and amortisation, for the period to which the issuing body’s most recent financial statements relate.

net interest expense means the interest expense net of interest revenue, taking account of any related hedging arrangements recognised in the profit and loss statements, for the period to which the issuing body’s most recent financial statements relate.

Note: The issuing body’s most recent financial statements may relate to a period that is less than 12 months.

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”.