ASIC Class Order [CO 00/4]

Transitional relief for member discretionary master funds

This instrument has effect under paragraph 601QA(1)(b) of the Corporations Act 2001.

This compilation was prepared on 1 September 2005 taking into account amendments up to [CO 00/1067].

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Law — Paragraph 601QA(1)(b) — Modification and Variation

Under paragraph  601QA(1)(b) of the Corporations Law (the Law) the Australian Securities and Investments Commission (ASIC) hereby declares that the provisions of Division 11 of Part 11.2 of the Law apply in relation to the persons mentioned in the Schedule as if those provisions were modified or varied as follows:

1. In subsection  1454(1), omit “scheme.”, substitute “scheme or the operator of scheme becomes exempt from Chapter 5C under ASIC Class Order [00/210]”;

2. Delete the full stop and add “; or” at the end of paragraph  1456(1)(b) and add the following paragraphs:

“(c) nominate as the proposed responsible entity a related body corporate of the body that has given its consent in writing to the nomination; or

(d) obtain relief under ASIC Class Order [00/210].”;

2A. In subsection 1455(1) delete the last sentence and substitute the words:

 ‘A retirement under this section takes effect if, and only if

(a) the undertaking becomes a registered scheme; or

(b) the operator of the undertaking obtains relief under ASIC Class Order [00/210] in relation to the undertaking.”; and

3. Add a new subsection 1456(1A) as follows:

“(1A) If the body decides to make a nomination under paragraph 1456(1)(c) and the nominee does not become a nominee to which paragraph 1460(1)(c) applies within 3 months of the notice being lodged, the body must within that 3 month period decide either to:

(a) retire from the office it holds; or

(b) lodge a registration application in relation to the undertaking naming itself as the proposed responsible entity.

The body must lodge a notice of its decision with ASIC.”

4. Add a new subsection 1456(2A) as follows:

“(2A) If the body decides to make a nomination:

(a) the body must give holders of the prescribed interests notice of the proposal to appoint the nominee as the proposed responsible entity and at least 21 days from the date the notice is sent to request a vote on the nominee being the proposed responsible entity unless the body arranges for a postal vote or convenes a meeting in accordance with paragraph (d) as soon as practicable after the notice is lodged under subsection 1456(1);

(b) the notice to holders of the prescribed interests must:

(i) contain the information about the choice of the nominee that would be required under paragraph 7.12.15(1)(g) of the Regulations of the old Law if the notice were a notice of a meeting to consider that choice;

(ii) state prominently that if:

(A) holders of the prescribed interests who together hold at least 5% of the total value of the interests held by holders; or

(B) 100 holders of the prescribed interests, who would be entitled to vote if the proposal were put to a meeting under paragraph 1456(2)(b) ask for a vote on the choice of the nominee as the proposed responsible entity by giving written notice received by the body within 21 days from the date the notice is sent, the body will arrange a postal vote or convene a meeting to vote;

(iii) be accompanied by a form which can be ticked to ask for a vote; and

(iv) state prominently a reply paid address of the body to which the form may be sent.

(c) The body must arrange for a postal vote or, if the body chooses, convene a meeting to vote if required in accordance with the notice as soon as practicable. 

(d) The body may arrange for a postal vote or, if the body chooses, convene a meeting to vote on the choice of the nominee as the proposed responsible entity.

(e) If there is a postal vote under paragraph (c) or (d):

(i) a voting paper must be sent to each holder of the prescribed interests which states a reply paid address of the body to which the voting paper may be sent;

(ii) the body must notify the holders of the prescribed interests in, or in a document accompanying, the voting paper that:

(A) the nominee will be the proposed responsible entity if the nominee is chosen as the proposed responsible entity by votes received by the body by holders of prescribed interests that would be eligible to vote at a meeting under paragraph 1456(2)(b) holding a majority in value (as determined in accordance with subsection 1069A(5) of the old Law) of all the holders of the prescribed interests that would be eligible to vote at such a meeting; and

(B) only votes received by the body within 28 days after the issue of the voting paper will be counted.

(f) If there is a postal vote under paragraph (d), the voting paper must be accompanied by a notice that would have complied with the covenant required by paragraph 7.12.15(1)(g) of the Regulations of the old Law if the proposal were put as a proposed resolution to a meeting of holders of the prescribed interests.”;

5. In paragraph  1460(1)(a) after “entity” add “or to obtain relief under ASIC Class Order [00/210]”;

6. Delete the full stop and add “; or” at the end of paragraph 1460(1)(b) and add a new paragraph 1460(1)(c) as follows:

“(c) a body that is a nominee under paragraph 1456(1)(c) if:

(i) the management company or trustee or representative, as the case may be, that nominated the nominee has complied with paragraphs 1456(2A)(a) and (b) in relation to the nomination and a vote was not required by paragraph 1456(2A)(c); or

(ii) the nominee has been chosen as the proposed responsible entity:

(A) by a postal vote in accordance with a notification made under subparagraph 1456(2A)(e)(ii);

(B) at a meeting convened under paragraph 1456(2A)(c) or (d);

and the management company or the trustee or representative, as the case may be, has lodged with ASIC a notice of the choice.”

7. Replace paragraph  1460(3)(b) of the Law with the following paragraphs:

“(b) if the modification removes from the deed a provision that was included to satisfy:

(i) the requirements of Division 5 of Part 7.12 of the old Law or a previous law corresponding to that Division; or

(ii) any requirements of the NCSC or another person authorised to approve deeds under a previous law corresponding to that Division; or

(iii) the conditions of any instrument under subsection 1069(3) or 1084(2) of the old Law or under a previous law corresponding to those subsections; or

(c) if the modification is incidental to the modifications permitted by paragraphs (a) and (b); or

(d) if the body reasonably considers the modification is in the best interests of holders of the prescribed interests, is fair as between holders and will not adversely affect holders' rights; or

(e) if the modification is for the purpose of including in the deed provisions to the effect of those set out in ASIC Class Order [00/210] or ASIC Class Order [00/212] or otherwise enabling the operator of the scheme to obtain relief under ASIC Class Order [00/210] of ASIC Class Order [00/212].”;

8. In paragraph  1460(6)(a) after “scheme” add, “or the body would on the modifications taking effect be eligible for relief under ASIC Class Order [00/210]”; and

9. In section  1461 add:

(a) “,1456(2A)(c), 1456(2A)(d)” after “1456(2)(b)”; and

(b) “except that at a meeting under paragraph 1456(2A)(c) or (d), paragraphs 1069A(2)(c) and (d) do not apply and a nominee may be chosen as the proposed responsible entity by holders of a majority in value of all the prescribed interests that being eligible to vote at the meeting do vote (whether in person or by proxy) on the choice” at the end of the section.

And under paragraph 601QA(1)(b) of the Law ASIC hereby varies:

(a) ASIC Class Order [98/2159] by inserting, in the first paragraph, after “Law” (third occurring) the words “(other than a person to which ASIC Class Order [00/4] applies)”; and

(b) ASIC Class Order [99/374] by, in Schedule A, omitting “98/59 or 98/1807” and substituting “[98/59], [98/1807] or [00/4]”.

SCHEDULE

Any person that is:

(a) the management company of;

(b) the trustee or representative of; or

(c) a holder of interests in, a trust (the “Trust”) which is:

(d) not a scheme to which either ASIC Class Order [98/59] or ASIC Class Order [98/1807] any of ASIC Class Orders [98/59], [98/1807] or [00/1067] applies; and

(e) constituted by a deed which provides, prior to any modification under subsection  1460(3) of the Law, that:

(i) a person who subscribes for interests in the Trust may direct that an amount of money corresponding to part or all of the amount subscribed or to money available for distribution from the Trust be invested in specified securities (“Underlying Securities”); and

(ii) the distributions of capital and income from the Trust to that person in relation to the interests and the amount paid to that person on buyback of the interests will correspond to amounts received by the trustee of the Trust in relation to the Underlying Securities acquired in accordance with that direction.

Notes to ASIC Class Order [CO 00/4]

Note 1

ASIC Class Order [CO 00/4] (in force under paragraph 601QA(1)(b) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the Tables below.

Table of Instruments

Table of Amendments

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