Corporations (Change of Incorporation) Regulations 2002

Statutory Rules 2002 No. 168 as amended

made under the

Corporations Act 2001

This compilation was prepared on 11 July 2002
taking into account amendments up to SR 2002 No. 174

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra

Contents

Page

 1 Name of Regulations [see Note 1] 

 2 Commencement [see Note 1] 

 3 Definition 

 4 Modification of the Act for Westpac Banking Corporation 

 5 Modification of the Act for AGL 

Schedule 1 Modifications for Westpac Banking Corporation 

Schedule 2 Modifications for AGL 

Notes  

1 Name of Regulations [see Note 1]

  These Regulations are the Corporations (Change of Incorporation) Regulations 2002.

2 Commencement [see Note 1]

  These Regulations commence on gazettal.

3 Definition

  In these Regulations:

Act means the Corporations Act 2001.

4 Modification of the Act for Westpac Banking Corporation

  For subsection 5H (5) of the Act, the operation of the Act is modified in accordance with Schedule 1 to facilitate the registration of Westpac Banking Corporation.

5 Modification of the Act for AGL

  For subsection 5I (1) of the Act:

 (a) the operation of the Act is modified in accordance with Schedule 2; and

 (b) the AGL Corporate Conversion Act 2002 of New South Wales is specified.

Schedule 1 Modifications for Westpac Banking Corporation

(regulation 4)

[1] Paragraphs 5H (2) (a), (h) and (i)

omit

[2] Section 9, after definition of deed of company arrangement

insert

deed of settlement has the meaning given by subsection 3 (1) of the Westpac Banking Corporation (Transfer of Incorporation) Act 2000 of New South Wales.

[3] Section 9, after definition of registrable body

insert

registration date has the meaning given by subsection 3 (1) of the Westpac Banking Corporation (Transfer of Incorporation) Act 2000 of New South Wales.

[4] Section 9, after definition of serious fraud

insert

share means a share, within the meaning given by the deed of settlement, in the capital of Westpac.

[5] Section 9, after definition of wages

insert

Westpac means Westpac Banking Corporation.

[6] After subsection 118 (1)

insert

 (1A) ASIC must, on the registration day, issue a certificate of registration in accordance with paragraph (1) (c) to a body that, under section 5H, is taken to be registered.

 (1B) For paragraph (1) (a), the ACN for Westpac is to be 007 457 141.

[7] Section 122

substitute

122 Incorporation and other expenses

  Westpac may use any amount standing to the credit of Westpac in the Share Premium Reserve, mentioned in clause 98 (i) of the deed of settlement, immediately before the registration date:

 (a) to provide for the premium payable on the redemption of debentures or redeemable preference shares issued before the registration date; and

 (b) to write off:

 (i) the preliminary expenses of Westpac incurred before the registration date; and

 (ii) expenses incurred, payments made or discounts allowed on or before the registration date for the issue of shares in, or debentures of, Westpac.

[8] Subsection 148 (1)

omit

(2) or

[9] Subsection 148 (2)

omit

[10] After subsection 153 (2)

insert

 (2A) However, Westpac may use the expression ‘Australian Registered Body Number’ followed by its ARBN instead of the expression ‘Australian Company Number’ followed by its ACN until 2 years after the registration date.

[11] After subsection 200E (1)

insert

 (1A) A benefit given to a director of the company on or after the registration date, under an agreement entered into in accordance with clause 56 (4B) of the deed of settlement before, on or after the registration date, is taken to have been approved under subsection (1).

[12] After section 254B

insert

254BA References in contracts and other documents to par value

 (1) This section applies for the purpose of interpreting and applying the following:

 (a) a contract entered into by Westpac before the registration date;

 (b) a trust deed or other document executed by or in relation to Westpac before the registration date;

 (c) the deed of settlement.

 (2) A reference to the par value of a share issued by Westpac is taken to be a reference to:

 (a) if the share is issued before the registration date — the par value before the registration date; or

 (b) if the share is issued on or after the registration date but is a share in a class of shares issued before the registration date — the par value of a share in the class of shares before the registration date; or

 (c) if the share is issued on or after the registration date and is not a share in a class of shares issued before the registration date — the par value for a share in the class of shares determined by the directors.

 (3) A reference to share premium is taken to be a reference to any residual share capital in relation to the share.

 (4) A reference to a right to a return of capital on a share issued by Westpac is taken to be a reference to a right to a return of capital of a value equal to the amount paid in respect of the share’s par value.

 (5) A reference to the aggregate par value of Westpac’s issued share capital is taken to be a reference to that aggregate as it existed immediately before the registration date and:

 (a) increased to take account of the par value of shares issued on or after the registration date; and

 (b) reduced to take account of the par value of shares cancelled on or after the registration date.

[13] Section 254C

omit

company

insert

company, whether issued before, on or after the registration date,

[14] After Part 2H.1

insert

Part 2H.1A Share capital

254HA Share capital of Westpac

  On and after the registration day, the share capital of Westpac is taken to include any amounts in:

 (a) the Capital Redemption Reserve mentioned in clause 99 (3) of the deed of settlement; or

 (b) the Share Premium Reserve mentioned in clause 98 (1) of the deed of settlement.

[15] After subsection 254M (1)

insert

 (1A) For a share issued by Westpac before the registration date:

 (a) the amount paid on the share is the sum of all amounts paid to Westpac at any time for the share (but not including any premium); and

 (b) the amount unpaid on the share is the difference between the issue price of the share (but not including any premium) and the amount paid on the share.

 (1B) The liability of the shareholder for calls on the share is not affected by the removal of the par value of the share by section 254C.

Schedule 2 Modifications for AGL

(regulation 5)

1 Section 9, after definition of agency

insert

AGL means the body corporate constituted with the name ‘The Australian Gas Light Company’ under the AGL Corporate Conversion Act.

AGL Corporate Conversion Act means the AGL Corporate Conversion Act 2002 of New South Wales.

2 Section 9, after definition of controller

insert

conversion day has the same meaning as in subsection 4 (1) of the AGL Corporate Conversion Act.

3 Section 9, after definition of premises

insert

preserved resolution has the same meaning as in subsection 5 (1) of the AGL Corporate Conversion Act.

4 Section 9, after definition of registrable body

insert

registration day has the same meaning as in subsection 4 (1) of the AGL Corporate Conversion Act.

5 Subsection 148 (1)

omit

(2) or

6 Subsection 148 (2)

omit

7 Subsection 149 (1), table, after item 8

insert

8 After subsection 153 (2), including the notes

insert

 (2A) However, AGL may use the expression ‘Australian Registered Body Number’ followed by its ARBN instead of the expression ‘Australian Company Number’ followed by its ACN until 2 years after the registration day.

 (2B) For subsection (2A), AGL’s ARBN is taken to be the ARBN of the registered body that became AGL on the conversion day.

9 After subsection 200E (1)

insert

 (1A) For AGL, member approval (express or implied) may be given in a preserved resolution.

 (1B) Subsections (2) to (4) do not apply to member approval given in a preserved resolution.

10 After subsection 202A (2)

insert

 (3) Until a determination is made under subsection (1) about the remuneration of the directors of AGL, they are to be paid the remuneration authorised expressly or impliedly by a preserved resolution.

11 Paragraphs 254K (a) and (b)

substitute

 (a) both:

 (i) if the shares are fully paid up; and

 (ii) out of profits or the proceeds of a new issue of shares made for the purpose of the redemption; or

 (b) in accordance with the AGL Corporate Conversion Act.

12 After section 258F

insert

258G Reductions by AGL

  AGL may reduce its share capital as permitted by the AGL Corporate Conversion Act.

13 Paragraph 260B (1) (b)

omit

shareholders.

insert

shareholders; or

14 After paragraph 260B (1) (b)

insert

 (c) for AGL — a preserved resolution.

15 After subsection 260B (1)

insert

 (1A) Subsections (4) to (7) do not apply to approval by a preserved resolution.

16 Paragraph 260C (5) (d)

omit

terms.

insert

terms;

17 After paragraph 260C (5) (d)

insert

 (e) for AGL, assistance given under an employee share scheme that has been approved by a preserved resolution.

18 After subsection 296 (2)

insert

 (3) The accounting standards and any further requirements in the regulations do not apply to a matter to the extent that the matter is dealt with by section 22 of the AGL Corporate Conversion Act.

19 Section 304

omit

The

insert

 (1) The

20 Section 304

insert

 (2) The accounting standards and any further requirements in the regulations do not apply to a matter to the extent that the matter is dealt with by section 22 of the AGL Corporate Conversion Act.

21 Subsections 327 (1) to (4)

substitute

 (1) The auditor holding office under subsection 40 (1) of the AGL Corporate Conversion Act is taken to be the auditor of AGL.

 (3) A company must, at each annual general meeting, if there is a vacancy in the office of the auditor of the company, appoint a person or persons, a firm or firms, or a person or persons and a firm or firms to fill the vacancy.

 (4) An auditor mentioned in subsection (1) or a person or firm appointed as auditor under subsection (3) holds office until:

 (a) death or removal or resignation from office in accordance with section 329; or

 (b) ceasing to be capable of acting as an auditor by reason of subsection 324 (1) or (2).

22 Paragraphs 601BC (2) (e), (l) and (m)

omit

23 Paragraph 601BC (8) (e)

omit

incorporation; and

insert

incorporation.

24 Paragraph 601BC (8) (f)

omit

25 After subsection 601BD (1), including the note

insert

 (1A) The numerical component of an ACN given to AGL must be the same as the numerical component of the ARBN of the registered body that was AGL, as defined in subsection 4 (1) of the AGL Corporate Conversion Act, immediately before the conversion day.

26 Part 5B.1, after Division 1

insert

Division 1A Application of Division 1 to AGL

601BLA Application of Division 1 to AGL

 (1) An application for registration of AGL under Division 1 may be made before the conversion day.

 (2) Section 601BC applies to an application mentioned in subsection (1) as if references in that section to information, documents or evidence about the body to which the application relates were references to information, documents or evidence that, because of the AGL Corporate Conversion Act will, or will be likely to, apply to AGL after the conversion day.

 (3) If an application for registration of AGL is made before the conversion day, ASIC may register AGL on the conversion day.

27 After section 793C

insert

793CA Compliance with operating rules — AGL

  A reference in a licensed market’s operating rules to the approval of the members of an entity (whether expressed in the form of a resolution or otherwise) is taken to include, for AGL, approval by a preserved resolution.

Notes to the Corporations (Change of Incorporation) Regulations 2002

Note 1

The Corporations (Change of Incorporation) Regulations 2002 (in force under the Corporations Act 2001) as shown in this compilation comprise Statutory Rules 2002 No. 168 amended as indicated in the Tables below.

Table of Statutory Rules

Table of Amendments