Prepared by the Office of Parliamentary Counsel, Canberra
Corporations Regulations 2001
Statutory Rules No. 193, 2001
made under the
Corporations Act 2001
Compilation No. 113
Compilation date: 31 March 2015
Includes amendments up to: SLI No. 39, 2015
Registered: 9 April 2015
This compilation is in 7 volumes
Volume 1: regulations 1.0.01–6D.5.02
Volume 2: regulations 7.1.02–7.6.08E
Volume 3: regulations 7.7.01–8.4.02
Volume 4: regulations 9.1.01–12.9.03
Volume 5: Schedules 1, 2 and 2A
Volume 6: Schedules 3–12
Volume 7: Endnotes
Each volume has its own contents
Federal Register of Legislative Instruments F2015C00303
About this compilation
This compilation
This is a compilation of the Corporations Regulations 2001 that shows the text
of the law as amended and in force on 31 March 2015 (the compilation date).
This compilation was prepared on 31 March 2015.
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but
not commenced at, the compilation date are underlined in the endnotes. For
more information on any uncommenced amendments, see the series page on
ComLaw for the compiled law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on ComLaw for the
compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Corporations Regulations 2001 i
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Contents
Chapter 1—Introductory 1
Part 1.0—Miscellaneous 1 1.0.01 Name of Regulations .........................................................1
1.0.01A Commencement.................................................................1
1.0.02 Interpretation .....................................................................1
1.0.02A Prescribed financial market .............................................13
1.0.03 Prescribed forms (Act s 350)...........................................13
1.0.03A Documents that must be in the prescribed form ..............14
1.0.03B Documents that must be lodged with ASIC.....................15
1.0.03C Documents that must be in a form approved by
ASIC................................................................................16
1.0.04 Directions and instructions in forms................................16
1.0.05 Documents and information required by forms ...............17
1.0.05A Lodgment with ASIC ......................................................17
1.0.06 Annexures accompanying forms .....................................18
1.0.07 General requirements for documents...............................18
1.0.08 Information to accompany financial documents
lodged for financial years ................................................20
1.0.09 Information to accompany financial documents etc
lodged for half-years .......................................................21
1.0.10 Continuous disclosure notices .........................................22
1.0.11 Certain documents to be signed by personal
representatives etc ...........................................................22
1.0.12 Form of notice of resolution ............................................23
1.0.13 Time for lodging documents ...........................................23
1.0.14 Address of registered office or place of business ............23
1.0.15 Affidavits and statements in writing................................23
1.0.16 Certification and verification of certain documents.........24
1.0.17 Documents signed or sworn in accordance with the
rules.................................................................................24
1.0.18 Prescribed provisions (Act s 53)......................................24
1.0.20 Copies of orders to be lodged ..........................................24
1.0.21 Identification of lodged orders ........................................25
1.0.22 Territorial application of Act...........................................25
Part 1.1—Prescribed amounts 26 1.1.01 Prescribed amounts..........................................................26
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Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Part 1.2—Interpretation 27
Division 1—General 27
1.2.01 Remuneration recommendations (Act s 9B)....................27
Part 1.2A—Disclosing entities 28 1.2A.01 Securities declared not to be ED securities......................28
1.2A.02 Foreign companies issuing securities under foreign
scrip offers etc exempt from disclosing entity
provisions ........................................................................28
1.2A.03 Foreign companies issuing securities under
employee share scheme exempt from the
disclosing entity provisions .............................................30
Chapter 2A—Registration of companies 31
Part 2A.1—Size of partnerships or associations (Act s 115(2)) 31 2A.1.01 Size of partnerships or associations.................................31
Part 2A.2—Change of place of registration of company (Act s
119A(3)) 33 2A.2.01 Approval of application for change of place of
registration.......................................................................33
2A.2.02 Special resolution may be set aside by Court order .........33
2A.2.03 Application for change of place of registration ...............34
2A.2.04 Change of place of registration........................................34
Chapter 2B—Basic features of a company 35
Part 2B.6—Names 35 2B.6.01 Availability of names (Act s 147)....................................35
2B.6.02 Consents required for use of certain letters, words
and expressions ...............................................................35
2B.6.03 Exemptions from requirement to set out name and
ACN on certain documents (Act s 155)...........................36
Chapter 2C—Registers 37
Part 2C.1—Registers generally 37
Division 2C.1.1—Location of register 37
2C.1.01 Form of notice .................................................................37
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Division 2C.1.2—Right to inspect and get copies of register 38
2C.1.02 Form of register ...............................................................38
2C.1.03 Improper purposes for getting copy of register................38
2C.1.04 Information to be included in application for copy
of register ........................................................................38
Division 2C.1.3—Use of information on registers by bodies
corporate 39
2C.1.05 Contact with members after failure to provide
copy of register................................................................39
Chapter 2D—Officers and employees 42
Part 2D.2—Restrictions on indemnities, insurance and
termination payments 42
Division 2D.2.2—Termination payments 42
2D.2.01 Meaning of base salary ...................................................42
2D.2.02 Meaning of benefit ..........................................................43
2D.2.03 When benefit given in connection with retirement
from an office or a position .............................................45
Part 2D.6—Disqualification from managing corporations 46
Division 2D.6.1—Automatic disqualification (Act s 206B) 46
2D.6.01 Prescribed foreign jurisdictions (Act s 206B(7)) .............46
Part 2D.7—Ban on hedging remuneration of key management
personnel 47 2D.7.01 Hedging arrangements (Act s 206J(3))............................47
Chapter 2E—Related party transactions 49 2E.1.01 Small amounts given to related entity .............................49
Chapter 2G—Meetings 50
Part 2G.2—Meetings of members of companies 50
Division 6—Proxies and body corporate representatives 50
2G.2.01 Authentication of appointment of proxy (Act s
250A) ..............................................................................50
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Chapter 2K—Charges 51
Part 2K.2—Registration 51 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............................................51
2K.2.02 Time period for the provisional registration of
charges ............................................................................52
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 ......................................................52
Chapter 2L—Debentures 53
Part 2L.2—Duties of borrower 53 2L.2.01 Register relating to trustees for debenture holders ..........53
Chapter 2M—Financial reports and audit 54
Part 2M.3—Financial reporting 54
Division 1—Annual financial reports and directors’ reports 54
2M.3.01 Disclosures required by notes to consolidated
financial statements—annual financial reports (Act
s 295)...............................................................................54
2M.3.03 Prescribed details (Act s 300A) .......................................55
Part 2M.4—Auditor 71 2M.4.01A Membership designations (Act s 324BE) ........................71
2M.4.01 Notice of appointment of auditors ...................................71
Part 2M.4A—Annual transparency reports for auditors 72 2M.4A.01 Application......................................................................72
2M.4A.02 Content of annual transparency report (Act s
332B)...............................................................................72
Part 2M.6—Modification of the operation of Chapter 2M of the
Act 73 2M.6.01 Modifications (Act s 343)................................................73
2M.6.05 Conduct of auditor—relevant relationships.....................73
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Chapter 2N—Updating ASIC information about
companies and registered schemes 74
Part 2N.2—Extract of particulars 74 2N.2.01 Particulars ASIC may require in an extract of
particulars (Act s 346B) ..................................................74
Part 2N.4—Return of particulars 77 2N.4.01 Particulars ASIC may require in a return of
particulars (Act s 348B) ..................................................77
Chapter 5—External administration 79
Part 5.1—Arrangements and reconstructions 79 5.1.01 Prescribed information for paragraph 411(3)(b)
and subparagraph 412(1)(a)(ii) of the Act .......................79
5.1.02 Giving notice under subsection 414(2) or (9) of the
Act...................................................................................80
Part 5.2—Receivers, and other controllers, of corporations 81 5.2.01 Controller’s notice to owner or lessor of
property—how given.......................................................81
5.2.01 Certified copies of reports ...............................................81
Part 5.3A—Administration of a company’s affairs with a view
to executing a deed of company arrangement 82 5.3A.01 Administrator’s notice of ending of administration .........82
5.3A.02 Administrator to specify voidable transactions in
statement .........................................................................82
5.3A.03 Administrator to lodge notice of appointment .................82
5.3A.03A Notice of first meeting of creditors..................................83
5.3A.03AB Notice of meeting to decide the company’s future ..........83
5.3A.04 Notice of change of administrator’s address....................84
5.3A.05 Administrator’s notice to owner or lessor of
property—how given.......................................................84
5.3A.06 Provisions included in deed of company
arrangement.....................................................................85
5.3A.06A Notice of resolution to wind up voluntarily.....................85
5.3A.06AB Notice of meeting of creditors .........................................85
5.3A.07 Administrator becomes liquidator—additional
cases ................................................................................85
5.3A.07A Notice of appointment of administrator...........................87
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Part 5.4—Winding up in insolvency 88 5.4.01 Application to Court for winding up—prescribed
agency .............................................................................88
5.4.01A Notice of application to wind up a company ...................88
5.4.02 Compromise of debt by liquidator—prescribed
amount.............................................................................89
Part 5.4C—Winding up by ASIC 90 5.4C.01 Notice of intention to order winding up of a
company ..........................................................................90
Part 5.5—Voluntary winding up 91 5.5.01 Notice of resolution to wind up voluntarily.....................91
5.5.02 Notice of meeting of creditors .........................................91
Part 5.6—Winding up generally 92 5.6.01 Matters for entry in liquidator’s or provisional
liquidator’s books ............................................................92
5.6.02 Inspection of books kept under section 531 of the
Act...................................................................................92
5.6.06 Payment into liquidator’s general account.......................92
5.6.07 Deposit of securities ........................................................92
5.6.08 Delivery of securities.......................................................93
5.6.09 Special bank account .......................................................93
5.6.10 Payments out of liquidator’s general account ..................93
5.6.11 Application......................................................................94
5.6.11A Electronic methods of giving or sending certain
notices etc........................................................................95
5.6.12 Notice of meeting ............................................................96
5.6.13 Proof of notice.................................................................98
5.6.13A If telephone conference facilities are available................99
5.6.13B Persons, or their proxies or attorneys, participating
by telephone ....................................................................99
5.6.14 Time and place of meeting ............................................100
5.6.14A Advertisement of a meeting...........................................100
5.6.14B Meetings not convened in accordance with
regulations .....................................................................101
5.6.15 Costs of convening meetings of creditors etc ................101
5.6.16 Quorum .........................................................................102
5.6.17 Chairperson ...................................................................103
5.6.18 Adjournment of meeting ...............................................103
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5.6.19 Voting on resolutions ....................................................104
5.6.20 Taking a poll .................................................................105
5.6.21 Carrying of resolutions after a poll has been
demanded at a meeting of creditors ...............................105
5.6.22 Carrying of resolution after a poll has been
demanded at a meeting of contributories or
members ........................................................................107
5.6.23 Creditors who may vote ................................................107
5.6.23A Voting status of persons by whom money is
advanced to a company .................................................108
5.6.24 Votes of secured creditors .............................................109
5.6.26 Admission and rejection of proofs for purposes of
voting ............................................................................109
5.6.27 Minutes of meeting........................................................110
5.6.28 Appointment of proxies.................................................111
5.6.29 Form of proxies .............................................................112
5.6.30 Instruments of proxy .....................................................114
5.6.31 Proxy forms to accompany notice of meetings..............114
5.6.31A Person may attend and vote by attorney ........................114
5.6.32 Liquidator etc may act as proxy ....................................115
5.6.33 Voting by proxy if financially interested.......................115
5.6.34 Liquidator etc may appoint deputy ................................115
5.6.36 Time for lodging proxies ...............................................116
5.6.36A Facsimile copies of proxies ...........................................116
5.6.37 Establishing title to priority ...........................................116
5.6.39 Notice to submit particulars of debt or claim ................116
5.6.40 Preparation of a proof of debt or claim..........................117
5.6.41 Disclosure of security....................................................117
5.6.42 Discounts.......................................................................117
5.6.43 Periodical payments ......................................................117
5.6.43A Debt or claim of uncertain value—appeal to Court .......118
5.6.44 Debt discount rate (Act s 554B) ....................................118
5.6.45 Employees’ wages .........................................................118
5.6.46 Production of bill of exchange and promissory
note................................................................................119
5.6.47 Admission of debt or claim without formal proof .........119
5.6.48 Notice to creditors to submit formal proof ....................120
5.6.49 Formal proof of debt or claim .......................................120
5.6.50 Contents of formal proof of debt or claim .....................121
5.6.51 Costs of proof ................................................................121
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5.6.52 Liquidator to notify receipt of proof of debt or
claim..............................................................................121
5.6.53 Time for liquidator to deal with proofs..........................121
5.6.54 Grounds of rejection and notice to creditor ...................122
5.6.55 Revocation or amendment of decision of liquidator......123
5.6.56 Withdrawal or variation of proof of debt or claim.........124
5.6.57 Oaths .............................................................................125
5.6.58 Liquidator to make out provisional list of
contributories.................................................................125
5.6.59 Time and place for settlement of list .............................125
5.6.60 Settlement of list of contributories ................................126
5.6.61 Supplementary list .........................................................126
5.6.62 Notice to contributories .................................................126
5.6.63 Dividend payable only on admission of a debt or
claim..............................................................................127
5.6.64 Application of regulations 5.6.37 to 5.6.57 ...................128
5.6.65 Liquidator to give notice of intention to declare a
dividend.........................................................................128
5.6.66 Time allowed for dealing with formal proof of
debt or claim..................................................................129
5.6.67 Declaration and distribution of dividend .......................130
5.6.68 Rights of creditor who has not proved debt before
declaration of dividend..................................................130
5.6.69 Postponement of declaration .........................................131
5.6.70 Payment of dividend to a person named........................131
5.6.70A Prescribed rate of interest on debts and claims
from relevant date to date of payment ...........................131
5.6.70B Notice of disclaimer ......................................................131
5.6.71 Distribution of surplus in a winding up by the
Court..............................................................................132
5.6.72 Distribution of surplus as directed.................................132
5.6.73 Eligible unsecured creditor............................................132
5.6.74 Interpretation: prescribed countries ...............................133
5.6.75 Publication in the prescribed manner ............................133
Chapter 5B—Bodies corporate registered as
companies, and registrable bodies 135
Part 5B.2—Registrable bodies 135 5B.2.01 Certified copies of certificates of incorporation etc.......135
5B.2.02 Manner of certifying constituent documents .................135
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5B.2.03 Manner of sending letters (Act ss 601CC(2) and
601CL(3))......................................................................136
5B.2.04 Manner of sending notices (Act ss 601CC(3) and
601CL(4))......................................................................136
5B.2.05 Prescribed countries (Act s 601CDA(a)) .......................136
5B.2.06 Notices (Act s 601CV(1))..............................................137
Part 5B.3—Names of registrable Australian bodies and foreign
companies 138 5B.3.01 Availability of names (Act s 601DC) ............................138
5B.3.02 Consents required for use of certain letters, words
and expressions .............................................................138
5B.3.03 Exemptions from requirement to set out ARBN etc
on certain documents (Act s 601DG) ............................139
5B.3.04 Notices (Act s 601DH (1)) ............................................139
Chapter 5C—Managed investment schemes 140
Part 5C.1—Registration of managed investment schemes 140 5C.1.01 Applying for registration ...............................................140
5C.1.02 Change of name of registered schemes .........................140
5C.1.03 Modification (Act s 601QB)..........................................141
Part 5C.2—The responsible entity 142 5C.2.01 Duty of responsible entities’ agents—surveillance
checks............................................................................142
5C.2.02 Appointment of temporary responsible entities.............142
5C.2.03 Form of notices (Act ss 601FL(2) and 601FM(2)) ........142
5C.2.04 Notice of appointment of temporary responsible
entities ...........................................................................142
5C.2.05 Form of notices (Act s 601FP(3))..................................142
Part 5C.4—The compliance plan 143 5C.4.01 Agents’ authorities to be lodged ....................................143
5C.4.02 Agents to assist auditors of compliance plans ...............143
Part 5C.5—The compliance committee 144 5C.5.01 Responsible entities etc to assist compliance
committees ....................................................................144
Part 5C.9—Winding up 145 5C.9.01 Notice of commencement of winding up.......................145
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Part 5C.11—Exemptions and modifications 146
Division 1—Exemptions 146
5C.11.01 Certain schemes not managed investment schemes.......146
Division 2—Modifications 150
5C.11.02 Modifications ................................................................150
5C.11.03 Register of members of registered schemes (Act s
169(1))...........................................................................150
5C.11.03A How to work out the value of an interest.......................150
5C.11.04 Names of registered schemes (Act s 601EB(1)) ............150
5C.11.05A Schemes not required to be registered (Act s
601ED) ..........................................................................150
5C.11.06 Liability of responsible entities (Act s 601FB(4)) .........151
Chapter 5D—Licensed trustee companies 152
Part 5D.1—Preliminary 152 5D.1.01 Prescribed requirements for publication ........................152
5D.1.01A Meaning of trustee company .........................................152
5D.1.02 Meaning of traditional trustee company services
and estate management functions ..................................152
5D.1.03 Meaning of mortgage-backed security ..........................155
5D.1.04 Interaction between trustee company provisions
and State and Territory laws..........................................156
Part 5D.2—Powers etc of licensed trustee companies 158
Division 2.1—Annual Information Returns 158
5D.2.01 Obligation on licensed trustee company to provide
an annual information return if requested......................158
5D.2.02 Information to be included in annual information
return .............................................................................160
Division 2.2—Common funds 161
5D.2.03 Common funds ..............................................................161
5D.2.04 Establishment of common funds ...................................161
5D.2.05 Deciding details about common funds ..........................161
5D.2.06 Operation of common funds ..........................................162
5D.2.07 Register of investments .................................................165
5D.2.08 Financial reports............................................................166
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Part 5D.3—Regulation of fees charged by licensed trustee
companies 168 5D.3.01 Modification of section 601TAB of the Act:
disclosure to clients of changed fees .............................168
Part 5D.4—Obligations of receiving company after transfer 169 5D.4.01 Preserving rights under dispute resolution systems
and compensation arrangements....................................169
Chapter 6—Takeovers 170
Part 6.2—Exceptions to the prohibition 170 6.2.01 Prescribed circumstances (Act s 611)............................170
6.2.02 Other prescribed circumstances (Act s 611) ..................171
Part 6.5—The takeover procedure 172 6.5.01 Wholesale holder of securities—telephone
monitoring during bid period.........................................172
Part 6.6—Variation of offers 173 6.6.01 Right to withdraw acceptance........................................173
Part 6.8—Acceptances 174 6.8.01 Acceptance of offers made under off-market bid ..........174
6.8.02 Acceptances by transferees and nominees of offers
made under off-market bid ............................................174
Part 6.10—Review and intervention 175 6.10.01 Application for review of Panel decision (Act s
657EA) ..........................................................................175
Chapter 6A—Compulsory acquisitions and buy-outs 176
Part 6A.1—Compulsory acquisitions and buy-outs after
takeover bid 176 6A.1.01 Terms on which securities to be acquired......................176
Chapter 6CA—Continuous disclosure 177 6CA.1.01 Continuous disclosure: other disclosing entities............177
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Chapter 6D—Fundraising 178
Part 6D.2—Disclosure to investors about securities 178 6D.2.01 Exemption—member shares .........................................178
6D.2.02 Exemption—foreign companies ....................................178
6D.2.03 Sophisticated investors ..................................................178
6D.2.04 Simple corporate bonds—base prospectus ....................178
6D.2.05 Simple corporate bonds—offer-specific prospectus ......183
6D.2.06 Simple corporate bonds—key financial ratios
relevant to issuing body.................................................186
Part 6D.5—Fundraising—miscellaneous 188 6D.5.01 Warrants that are securities ...........................................188
6D.5.02 Modification of paragraph 708(8)(c) of the Act:
renewal period for accountants’ certificates ..................188
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Introductory Chapter 1
Miscellaneous Part 1.0
Regulation 1.0.01
Corporations Regulations 2001 1
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
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Chapter 1 Introductory
Part 1.0 Miscellaneous
Regulation 1.0.02
2 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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).
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Introductory Chapter 1
Miscellaneous Part 1.0
Regulation 1.0.02
Corporations Regulations 2001 3
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
ASTC means ASX Settlement and Transfer Corporation Pty
Limited.
ASTC certificate cancellation provisions means the provisions of
the ASTC operating rules that deal with:
(a) the cancellation of certificates or other documents of title to
Division 4 financial products; and
(b) matters incidental to the cancellation of those certificates or
documents.
ASTC-regulated transfer means a transfer of a Division 4 financial
product:
(a) within the meaning of:
(i) Division 4 of Part 7.11 of the Act; and
(ii) regulations relating to transfer made for sections 1074A
and 1074E of the Act; and
(b) that is effected through ASTC; and
(c) that, according to the ASTC operating rules, is an
ASTC-regulated transfer.
benefit fund has the meaning given by section 16B of the Life
Insurance Act 1995.
building society has the same meaning as in section 16 of the RSA
Act.
capital guaranteed, for a superannuation product or an RSA
product, means that the contributions and accumulated earnings
may not be reduced by a negative investment return or a reduction
in the value of an asset in which the product is invested.
capital guaranteed FHSA product means an FHSA product:
(a) that is an FHSA deposit account or an FHSA life policy; and
(b) for which the balance may not be reduced other than by the
debiting of fees.
capital guaranteed fund means a public offer superannuation fund,
or a sub-fund of a public offer superannuation fund, that has the
following characteristics:
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(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
(c) interests in a registered scheme mentioned in
paragraph 1073A(1)(c) 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.
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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:
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(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:
(c) a financial product under paragraph 764A(1)(ba) of the Act;
(d) anything that is not a financial product under section 765A of
the Act;
(e) available money;
(f) deposit money;
(g) a managed investment product;
(h) a security;
(i) a loan that has not been repaid in full;
(j) gold, silver or platinum bullion.
Note: In accordance with subsections 761G(6) and (7) of the Act,
superannuation products and RSA products are not income stream
financial products.
investment-based financial product means:
(a) a financial product under section 763B of the Act; or
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(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.
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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
(c) anything that is not a financial product under section 765A of
the Act.
non-Division 3 securities means financial products to which
Division 3 or 4 of Part 7.11 of the Act applies because of a
declaration made by ASIC under paragraph 1075A(1)(b) of the
Act.
old Corporations Act means the Corporations Act 2001 as in force
immediately before the FSR commencement.
policy committee has the same meaning as in the SIS Act.
pooled superannuation trust (or PST) has the same meaning as in
the SIS Act.
pre-FSR securities means securities defined in subsection 92(3) of
the old Corporations Act.
preserved benefits means preserved benefits under:
(a) Subdivision 6.1.2 of the SIS Regulations; or
(b) Subdivision 4.1.2 of the RSA Regulations.
proper ASTC transfer means:
(a) an ASTC-regulated transfer of a Division 4 financial product
effected:
(i) through the prescribed CS facility operated by the
ASTC; and
(ii) in accordance with the operating rules of the ASTC; and
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(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.
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restricted non-preserved benefits means restricted non-preserved
benefits under:
(a) Subdivision 6.1.3 of the SIS Regulations; or
(b) Subdivision 4.1.3 of the RSA Regulations.
retirement savings account has the same meaning as in the RSA
Act.
risk-based financial product means:
(a) a financial product under section 763C of the Act; or
(b) a life risk insurance product;
but does not include any of the following:
(c) a derivative;
(d) anything that is not a financial product under section 765A of
the Act.
Note: In accordance with subsections 761G(5) and (7) of the Act, general
insurance products are not risk-based financial products.
RSA Act means the Retirement Savings Accounts Act 1997.
RSA Regulations means the Retirement Savings Accounts
Regulations 1997.
settlement documents, in relation to a transaction, means:
(a) if the agreement for the transaction has not been
discharged—documents the supply of which in accordance
with the agreement is sufficient to discharge the obligations
of the seller under the agreement, in so far as the obligations
relate to the supply of documents in connection with the
transaction; or
(b) if the agreement for the transaction has been discharged,
whether by performance or otherwise—documents the supply
of which in accordance with the agreement would, if the
agreement had not been discharged, be sufficient to discharge
the obligations of the seller under the agreement, in so far as
the obligations relate to the supply of documents in
connection with the transaction.
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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.
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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
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(B) it is a legal or equitable right or interest
mentioned in subparagraph 764A(1)(b)(ii) of
the Act; or
(C) it is a legal or equitable right or interest
mentioned in subparagraph 764A(1)(ba)(ii) of
the Act; and
(b) that is transferable.
(2) In these Regulations, a reference to a form by number is a
reference to the form so numbered in Schedule 2.
1.0.02A Prescribed financial market
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;
(c) Chi-X Australia Pty Ltd;
(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.
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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)
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Item Document Provision of the
Act
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.
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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.
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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
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(d) information that is to be given to ASIC in accordance with
subsection 912E(2) of the Act may be lodged with ASIC in
the prescribed form; and
(e) information that is to be provided to ASIC in accordance
with paragraph 913B(1)(ca) of the Act may be lodged with
ASIC in the prescribed form; and
(f) a document that is to be lodged with ASIC for Part 10.2 of
the Act must be lodged in the prescribed form.
1.0.06 Annexures accompanying forms
(1) In this regulation:
annexure includes a document that is with a form.
(2) An annexure to a form must:
(a) have an identifying mark; and
(b) be endorsed with the words:
‘This is the annexure of (insert the number of pages) pages
marked (insert an identifying mark) mentioned in the (insert
a description of the form) signed by (insert ‘me’ or ‘us’) and
dated (insert the date of signing)’; and
(c) be signed by each person signing the form to which the
document is annexed.
(3) The pages in an annexure must be numbered consecutively.
(4) If a form has a document annexed, the following particulars of the
annexure must be written on the form:
(a) the identifying mark; and
(b) the number of pages.
1.0.07 General requirements for documents
Unless ASIC otherwise approves, a document to be lodged must:
(a) be on white or light pastel colour paper:
(i) of international A4 size; and
(ii) of medium weight and good quality; and
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(b) be clearly printed or written in black or dark blue in a manner
that is permanent and will make possible a reproduction, by
photographic, computerised or other electronic means that is
satisfactory to ASIC; and
(c) not be a carbon copy or a copy reproduced by any spirit
duplication method; and
(d) subject to paragraph (h), have margins of not less than 10
millimetres on all sides; and
(e) if it comprises 2 or more sheets, be fastened together securely
in the top left-hand corner; and
(f) display on the first page of the document or, if the document
is a single sheet, on that sheet:
(i) subject to regulation 7.6.03:
(A) the ACN, ARBN or ARSN of the corporation
or managed investment scheme; or
(B) if the last 9 digits of its ABN are the same, and
in the same order, as the last 9 digits of its
ACN, ARBN or ARSN (if the corporation or
managed investment scheme has an ACN,
ARBN or ARSN)—its ABN; and
(ii) the name of the corporation or managed investment
scheme; and
(iii) the title of the document; and
(iv) the section number of the Act under which the
document is being lodged; and
(g) have the following information at the top left-hand of the first
sheet:
(i) registered agent number (if any); and
(ii) lodging party or agent name; and
(iii) address; and
(iv) telephone number; and
(v) facsimile number (if any); and
(vi) DX number and applicable suburb or city (if any); and
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(h) at the top right-hand of the first sheet, have a blank space that
measures 35 millimetres from the top of the page and 65
millimetres from the right-hand side of the page; and
(j) if the document is a form relating to a no liability company,
be completed by inserting the words ‘No Liability’ in place
of the word ‘Limited’; and
(k) in the case of an unlimited company, have the word
‘Limited’ omitted; and
(l) if the document contains maps or charts on which areas have
been distinguished by colour, also distinguish those areas by
hatching, numbering or lettering.
1.0.08 Information to accompany financial documents lodged for
financial years
A document lodged under subsection 319(1) of the Act for a
financial year must be accompanied by the approved form setting
out the following information:
(a) if the disclosing entity is a company:
(i) the ACN of the company or, if the last 9 digits of its
ABN are the same, and in the same order, as the last 9
digits of its ACN, the ABN of the company; and
(ii) the dates on which the financial year to which the
document relates begins and ends; and
(iii) a statement of certification in accordance with
regulation 1.0.16; or
(b) if the disclosing entity is a body (other than a company):
(i) the ARBN of the body or, if the last 9 digits of its ABN
are the same, and in the same order, as the last 9 digits
of its ARBN, the ABN of the body; and
(ii) the dates on which the financial year to which the
document relates begins and ends; and
(iii) a statement of certification in accordance with
regulation 1.0.16; or
(c) if the disclosing entity is a registered scheme:
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Introductory Chapter 1
Miscellaneous Part 1.0
Regulation 1.0.09
Corporations Regulations 2001 21
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(i) the ARSN of the scheme or, if the last 9 digits of its
ABN are the same, and in the same order, as the last 9
digits of its ARSN, the ABN of the scheme; and
(ii) the dates of the beginning and end of the half-year to
which the document relates; and
(iii) the name of the responsible entity of the scheme and the
name of the scheme; and
(iv) a statement of certification in accordance with
regulation 1.0.16.
1.0.09 Information to accompany financial documents etc lodged for
half-years
A document lodged under section 320 of the Act for a half-year
must be accompanied by the approved form setting out the
following information:
(a) if the disclosing entity is a company:
(i) the ACN of the company or, if the last 9 digits of its
ABN are the same, and in the same order, as the last 9
digits of its ACN, the ABN of the company; and
(ii) the dates on which the half-year to which the document
relates begins and ends; and
(iii) a statement of certification in accordance with
regulation 1.0.16; or
(b) if the disclosing entity is a body (other than a company):
(i) the ARBN of the body or, if the last 9 digits of its ABN
are the same, and in the same order, as the last 9 digits
of its ARBN, the ABN of the body; and
(ii) the dates on which the half-year to which the document
relates begins and ends; and
(iii) a statement of certification in accordance with
regulation 1.0.16; or
(c) if the disclosing entity is a registered scheme:
(i) the ARSN of the scheme or, if the last 9 digits of its
ABN are the same, and in the same order, as the last 9
digits of its ARSN, the ABN of the scheme; and
Federal Register of Legislative Instruments F2015C00303
Chapter 1 Introductory
Part 1.0 Miscellaneous
Regulation 1.0.10
22 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Introductory Chapter 1
Miscellaneous Part 1.0
Regulation 1.0.12
Corporations Regulations 2001 23
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
1.0.12 Form of notice of resolution
A copy of a resolution lodged under subsection 136(5), 157(2),
162(3), 246F(3), 254H(4), 254N(2), 256C(3), 260B(7), 461(2),
491(2), 506(1B), 507(11) or 510(1A) of the Act must be set out in,
or annexed to, a notice in accordance with the approved form.
1.0.13 Time for lodging documents
If:
(a) a document must be lodged; and
(b) the period within which the document must be lodged is not
prescribed;
the document must be lodged:
(c) if paragraph (d) does not apply—within one month; or
(d) if the document is to be lodged by a foreign company and
ASIC allows a further period because of special
circumstances—that further period;
after the happening of the event to which the document relates.
1.0.14 Address of registered office or place of business
If notice must be given under these Regulations of:
(a) the address of an office or a proposed office; or
(b) the address of a place of business;
of a corporation or a person, the notice must include:
(c) if applicable, the number of the room in which; and
(d) if applicable, the number of the floor or level on which; and
(e) the place in Australia in which;
the office or place of business is, or is to be, situated.
1.0.15 Affidavits and statements in writing
(1) An affidavit or statement in writing must be sworn or made, on
behalf of a corporation, by a director or a secretary of the
corporation.
Federal Register of Legislative Instruments F2015C00303
Chapter 1 Introductory
Part 1.0 Miscellaneous
Regulation 1.0.16
24 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(2) If an affidavit is sworn outside Australia, the affidavit is sufficient
if it appears to be sworn in accordance with the requirements of the
law of that place.
1.0.16 Certification and verification of certain documents
A document relating to a corporation or managed investment
scheme that is to be certified or verified must be certified or
verified in the approved form and signed by:
(a) a director or secretary of the corporation, or of the
responsible entity of the scheme, who resides in Australia or
an external territory; or
(b) an agent of the corporation or entity or, if the agent is a
company, a director or secretary of the company who resides
in Australia or an external territory.
1.0.17 Documents signed or sworn in accordance with the rules
(1) A document that is signed in accordance with the rules is taken to
have been signed in accordance with regulation 1.0.11.
(2) An affidavit or statement that is sworn or made in accordance with
the rules is taken to have been sworn or made in accordance with
regulation 1.0.15.
1.0.18 Prescribed provisions (Act s 53)
For section 53 of the Act, the following provisions of the Act are
prescribed:
(a) section 657A;
(b) paragraphs 12(2)(b) and (c) of the Act.
1.0.20 Copies of orders to be lodged
A person who obtains an order of the Court under or for:
(c) subsection 266(4); or
(d) section 274; or
(e) subsection 484(1); or
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Introductory Chapter 1
Miscellaneous Part 1.0
Regulation 1.0.21
Corporations Regulations 2001 25
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(ea) paragraph 484(2)(c); or
(f) section 583; or
(g) section 585; or
(h) section 601ND; or
(j) section 1322;
of the Act, must lodge an office copy of the order with ASIC.
1.0.21 Identification of lodged orders
If an order or copy of an order of a court is lodged with ASIC, it
must be accompanied by a cover page in Form 105 identifying the
legislative provision or other law under which the order was made
and the nature of the order.
1.0.22 Territorial application of Act
For subsection 5(9) of the Act, each of the external Territories is
included in this jurisdiction for the purposes of Chapter 7 of the
Act (other than Parts 7.2 to 7.5 and Part 7.11) in relation to:
(a) a superannuation product within the meaning of section 761A
of the Act; and
(b) an RSA product within the meaning of section 761A of the
Act; and
(c) a financial service that relates to a superannuation product
within the meaning of section 761A of the Act; and
(d) a financial service that relates to an RSA product within the
meaning of section 761A of the Act.
Federal Register of Legislative Instruments F2015C00303
Chapter 1 Introductory
Part 1.1 Prescribed amounts
Regulation 1.1.01
26 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Introductory Chapter 1
Interpretation Part 1.2
General Division 1
Regulation 1.2.01
Corporations Regulations 2001 27
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 1 Introductory
Part 1.2A Disclosing entities
Regulation 1.2A.01
28 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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,
Federal Register of Legislative Instruments F2015C00303
Introductory Chapter 1
Disclosing entities Part 1.2A
Regulation 1.2A.02
Corporations Regulations 2001 29
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
or as soon as practicable after, they are given to those other
persons; and
(f) in relation to the issue—the company complies with all
legislative and stock exchange requirements in the place in
which is located:
(i) the approved foreign exchange; or
(ii) if more than one—the principal approved exchange;
on which the company’s securities are quoted.
(2) In this regulation:
approved foreign exchange includes:
(a) American Stock Exchange Inc.;
(b) New York Stock Exchange Inc.;
(c) New Zealand Stock Exchange;
(d) The Stock Exchange of Hong Kong Ltd;
(e) Stock Exchange of Singapore Limited;
(f) The Amsterdam Stock Exchange;
(g) the Frankfurt Stock Exchange;
(h) The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited;
(i) the Milan Stock Exchange;
(j) the NASDAQ National Market;
(k) the Paris Bourse;
(l) the Tokyo Stock Exchange;
(m) the Toronto Stock Exchange;
(n) the Zurich Stock Exchange.
foreign scheme of arrangement means a compromise or
arrangement that is subject to court approval under
subsection 411(6) of the Act, between:
(a) a foreign company and a class of its creditors; or
(b) a foreign company and a class of its members.
foreign takeover bid means a bid to acquire some or all of the
securities of:
Federal Register of Legislative Instruments F2015C00303
Chapter 1 Introductory
Part 1.2A Disclosing entities
Regulation 1.2A.03
30 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Registration of companies Chapter 2A
Size of partnerships or associations (Act s 115(2)) Part 2A.1
Regulation 2A.1.01
Corporations Regulations 2001 31
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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):
Federal Register of Legislative Instruments F2015C00303
Chapter 2A Registration of companies
Part 2A.1 Size of partnerships or associations (Act s 115(2))
Regulation 2A.1.01
32 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
private sector participant means an entity that obtains the majority
of its revenue from sources other than Commonwealth, State or
Territory appropriations.
Federal Register of Legislative Instruments F2015C00303
Registration of companies Chapter 2A
Change of place of registration of company (Act s 119A(3)) Part 2A.2
Regulation 2A.2.01
Corporations Regulations 2001 33
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 2A Registration of companies
Part 2A.2 Change of place of registration of company (Act s 119A(3))
Regulation 2A.2.03
34 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Basic features of a company Chapter 2B
Names Part 2B.6
Regulation 2B.6.01
Corporations Regulations 2001 35
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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:
Federal Register of Legislative Instruments F2015C00303
Chapter 2B Basic features of a company
Part 2B.6 Names
Regulation 2B.6.03
36 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Registers Chapter 2C
Registers generally Part 2C.1
Location of register Division 2C.1.1
Regulation 2C.1.01
Corporations Regulations 2001 37
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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).
Federal Register of Legislative Instruments F2015C00303
Chapter 2C Registers
Part 2C.1 Registers generally
Division 2C.1.2 Right to inspect and get copies of register
Regulation 2C.1.02
38 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Division 2C.1.2—Right to inspect and get copies of register
2C.1.02 Form of register
For subsection 173(3) of the Act, a copy of a register must be
provided as a delimited text file:
(a) produced by a commercially available spreadsheet or
database application; and
(b) copied onto a CD-ROM or a USB portable memory device.
2C.1.03 Improper purposes for getting copy of register
For paragraph 173(3A)(b) of the Act, the following purposes are
prescribed:
(a) soliciting a donation from a member of a company;
(b) soliciting a member of a company by a person who is
authorised to assume or use the word stockbroker or
sharebroker in accordance with section 923B of the Act;
(c) gathering information about the personal wealth of a member
of a company;
(d) making an offer 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.
Federal Register of Legislative Instruments F2015C00303
Registers Chapter 2C
Registers generally Part 2C.1
Use of information on registers by bodies corporate Division 2C.1.3
Regulation 2C.1.05
Corporations Regulations 2001 39
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Division 2C.1.3—Use of information on registers by bodies
corporate
2C.1.05 Contact with members after failure to provide copy of
register
(1) This regulation applies if a body corporate mentioned in
regulation 12.8.02 has failed to give a person a copy of the part of
the register of members of the body who hold member shares:
(a) within 28 days after the person’s request for a copy; or
(b) if a longer period has been allowed by ASIC—within the
longer period.
(2) If the person:
(a) makes a statutory declaration that the person intends to use
information that is contained in that part of the register:
(i) for the purpose of contacting members of the body, or
sending material to members of the body, for a purpose
mentioned in subsection 177(1A) of the Act; and
(ii) in a way that does not contravene that subsection or
another law; and
(b) gives the statutory declaration to the body corporate; and
(c) pays the reasonable costs of contacting the members, or
sending material to the members;
the body corporate must do everything that is reasonably possible
to arrange for the members to be contacted, or for the material to
be sent to the members, on the person’s behalf by a third party
service provider nominated by the body corporate.
(3) If the body corporate believes on reasonable grounds that the
person intends to use information that is contained in that part of
the register:
(a) for a purpose that is not in accordance with
subparagraph (2)(a)(i); or
(b) in a way that is not in accordance with
subparagraph (2)(a)(ii);
Federal Register of Legislative Instruments F2015C00303
Chapter 2C Registers
Part 2C.1 Registers generally
Division 2C.1.3 Use of information on registers by bodies corporate
Regulation 2C.1.05
40 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Registers Chapter 2C
Registers generally Part 2C.1
Use of information on registers by bodies corporate Division 2C.1.3
Regulation 2C.1.05
Corporations Regulations 2001 41
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Chapter 2D Officers and employees
Part 2D.2 Restrictions on indemnities, insurance and termination payments
Division 2D.2.2 Termination payments
Regulation 2D.2.01
42 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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):
Federal Register of Legislative Instruments F2015C00303
Officers and employees Chapter 2D
Restrictions on indemnities, insurance and termination payments Part 2D.2
Termination payments Division 2D.2.2
Regulation 2D.2.02
Corporations Regulations 2001 43
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(a) if a person has held an office in relation to a company:
(i) throughout a period of more than 12 months; or
(ii) throughout a number of periods of more than 12 months
in total;
the relevant period for that person is the last 12 months of
that period or the last 12 months of the total period; and
(b) if a person has held an office in relation to a company:
(i) throughout a period of 12 months or less; or
(ii) throughout a number of periods of 12 months or less in
total;
the relevant period for that person is that period or the total
period.
2D.2.02 Meaning of benefit
(1) For paragraph 200AB(1)(e) of the Act, each of the following things
is specified:
(a) any kind of pension, other than a pension paid from a
superannuation fund or a superannuation annuity (whether it
is paid from an Australian or a foreign fund);
(b) an amount paid as a voluntary out-of-court settlement in a
matter relating to the termination of employment;
(c) a payment:
(i) that is made as part of a restrictive covenant,
restraint-of-trade clause or non-compete clause
(however described); and
(ii) the value of which, when added to the value of all other
payments (if any) already made or payable in
connection with the person’s retirement from board or
managerial offices in the company and related bodies
corporate, exceeds the payment limit set by
section 200G of the Act.
Note: Subsection 200AB(1) of the Act provides that a benefit includes
specified things. Paragraph 200AB(1)(e) of the Act provides that a
benefit includes a thing specified in regulations. Things that are not
specified in subsection 200AB(1) of the Act or subregulation (1) may
also be benefits for the purposes of the Act.
Federal Register of Legislative Instruments F2015C00303
Chapter 2D Officers and employees
Part 2D.2 Restrictions on indemnities, insurance and termination payments
Division 2D.2.2 Termination payments
Regulation 2D.2.02
44 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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
Federal Register of Legislative Instruments F2015C00303
Officers and employees Chapter 2D
Restrictions on indemnities, insurance and termination payments Part 2D.2
Termination payments Division 2D.2.2
Regulation 2D.2.03
Corporations Regulations 2001 45
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(b) is not paid, provided or released to the person at the time at
which it is earned, accrued or allocated.
prescribed superannuation fund has the meaning given by
section 200B of the Act.
2D.2.03 When benefit given in connection with retirement from an
office or a position
(1) For subsection 200A(1A) of the Act, each of the following
circumstances is specified in relation to a benefit:
(a) circumstances in which the benefit is the automatic vesting of
share-based payments for a person on or as a result of
retirement from an office or a position;
(b) circumstances in which the benefit is the accelerated vesting
of share-based payments for a person on or as a result of
retirement from an office or a position; and
(c) circumstances in which the benefit is a payment made to a
person in lieu of the giving of notice of termination.
Note: Subsection 200A(1A) of the Act provides that a benefit is given in
connection with a person’s retirement from an office or a position if
the benefit is given in circumstances specified in regulations.
(2) For paragraph 200F(1)(b) of the Act, a benefit requires shareholder
approval:
(a) if it:
(i) is a deferred bonus under paragraph 2D.2.02(2)(a); and
(ii) is subject to automatic or accelerated vesting under
subregulation (1); and
(iii) exceeds the payment limit set by section 200G of the
Act; and
(b) if it is not a benefit attributable to the release of a deferred
bonus from a restriction due to death or incapacity.
Federal Register of Legislative Instruments F2015C00303
Chapter 2D Officers and employees
Part 2D.6 Disqualification from managing corporations
Division 2D.6.1 Automatic disqualification (Act s 206B)
Regulation 2D.6.01
46 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Officers and employees Chapter 2D
Ban on hedging remuneration of key management personnel Part 2D.7
Regulation 2D.7.01
Corporations Regulations 2001 47
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 2D Officers and employees
Part 2D.7 Ban on hedging remuneration of key management personnel
Regulation 2D.7.01
48 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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
(c) the person has entered into an agreement to buy the shares
but has not received the shares; 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
(c) has any other non-contingent legal obligation to deliver.
Federal Register of Legislative Instruments F2015C00303
Related party transactions Chapter 2E
Regulation 2E.1.01
Corporations Regulations 2001 49
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 2G Meetings
Part 2G.2 Meetings of members of companies
Division 6 Proxies and body corporate representatives
Regulation 2G.2.01
50 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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).
Federal Register of Legislative Instruments F2015C00303
Charges Chapter 2K
Registration Part 2K.2
Regulation 2K.2.01
Corporations Regulations 2001 51
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Chapter 2K Charges
Part 2K.2 Registration
Regulation 2K.2.02
52 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Debentures Chapter 2L
Duties of borrower Part 2L.2
Regulation 2L.2.01
Corporations Regulations 2001 53
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Chapter 2L—Debentures
Part 2L.2—Duties of borrower
2L.2.01 Register relating to trustees for debenture holders
(1) For subsection 283BCA(2) of the Act, ASIC must enter the
following details in the register in relation to a trustee for
debenture holders:
(a) the name and address of the trustee;
(b) either:
(i) if the trustee has an ACN—the trustee’s ACN; or
(ii) the trustee’s ABN;
(c) the name and address of the borrower who appointed the
trustee;
(d) the name of the trust for which the trustee has been appointed
to act;
(e) the day the trust deed was executed.
(2) If ASIC receives a notice from a borrower under
subsection 283BC(2) of the Act that the trustee has revoked the
trust deed, it must amend the register by removing the details
entered on the register in relation to the trustee.
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.01
54 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Chapter 2M—Financial reports and audit
Part 2M.3—Financial reporting
Division 1—Annual financial reports and directors’ reports
2M.3.01 Disclosures required by notes to consolidated financial
statements—annual financial reports (Act s 295)
(1) For paragraph 295(3)(a) of the Act, if paragraph 295(2)(b) of the
Act applies to a parent entity, the following disclosures are
required in the notes to the financial statements of the consolidated
entity:
(a) current assets of the parent entity;
(b) total assets of the parent entity;
(c) current liabilities of the parent entity;
(d) total liabilities of the parent entity;
(e) shareholders’ equity in the parent entity separately showing
issued capital and each reserve;
(f) profit or loss of the parent entity;
(g) total comprehensive income of the parent company;
(h) details of any guarantees entered into by the parent entity in
relation to the debts of its subsidiaries;
(i) details of any contingent liabilities of the parent entity;
(j) details of any contractual commitments by the parent entity
for the acquisition of property, plant or equipment;
(k) comparative information for the previous period for each of
paragraphs (a) to (j).
(2) The disclosures in subregulation (1) must be calculated in
accordance with accounting standards in force in the financial year
to which the disclosure relates.
(3) In this regulation:
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 55
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
56 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 57
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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)
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
58 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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;
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 59
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
(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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
60 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 61
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
62 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 63
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
64 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 65
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
66 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 67
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
68 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Item Condition (if any) Details
(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
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Financial reporting Part 2M.3
Annual financial reports and directors’ reports Division 1
Regulation 2M.3.03
Corporations Regulations 2001 69
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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
(c) the transaction is trivial or domestic in nature.
(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
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.3 Financial reporting
Division 1 Annual financial reports and directors’ reports
Regulation 2M.3.03
70 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(b) defined in a relevant accounting standard that is applied for
the purpose of disclosing information;
has the meaning given by that accounting standard.
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Auditor Part 2M.4
Regulation 2M.4.01A
Corporations Regulations 2001 71
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 2M Financial reports and audit
Part 2M.4A Annual transparency reports for auditors
Regulation 2M.4A.01
72 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Financial reports and audit Chapter 2M
Modification of the operation of Chapter 2M of the Act Part 2M.6
Regulation 2M.6.01
Corporations Regulations 2001 73
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Part 2M.6—Modification of the operation of
Chapter 2M of the Act
2M.6.01 Modifications (Act s 343)
For section 343 of the Act, the operation of Chapter 2M of the Act
is modified in accordance with this Part.
2M.6.05 Conduct of auditor—relevant relationships
The operation of Chapter 2M of the Act in relation to:
(a) all companies; and
(b) all registered schemes; and
(c) all disclosing entities;
is modified as set out in Schedule 5C.
Federal Register of Legislative Instruments F2015C00303
Chapter 2N Updating ASIC information about companies and registered schemes
Part 2N.2 Extract of particulars
Regulation 2N.2.01
74 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Chapter 2N—Updating ASIC information
about companies and registered
schemes
Part 2N.2—Extract of particulars
2N.2.01 Particulars ASIC may require in an extract of particulars
(Act s 346B)
(1) For section 346B of the Act, the following particulars are
prescribed for a company:
(a) ACN;
(b) name;
(c) address of registered office;
(d) address of principal place of business in this jurisdiction;
(e) for each director and company secretary:
(i) the person’s name; and
(ii) the person’s usual residential address, or, if the person is
entitled to have an alternative address under
subsection 205D(2) of the Act, that alternative address;
and
(iii) the person’s date and place of birth;
(f) the date of appointment or cessation of each director,
secretary or alternate director;
(g) for issued shares:
(i) the classes into which the shares are divided; and
(ii) for each class of share issued:
(A) the number of shares in the class; and
(B) the total amount paid up for the class; and
(C) the total amount unpaid for the class;
(h) for a proprietary company—the names and addresses of:
Federal Register of Legislative Instruments F2015C00303
Updating ASIC information about companies and registered schemes Chapter 2N
Extract of particulars Part 2N.2
Regulation 2N.2.01
Corporations Regulations 2001 75
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(i) if the company has 20 or fewer members—all members;
or
(ii) if the company has more than 20 members—the top 20
members in each class;
(i) for a proprietary company that has a share capital:
(i) the total number of shares in each class held by each of
the members mentioned in paragraph (h); and
(ii) whether or not the shares are fully paid; and
(iii) whether or not the shares are beneficially owned;
(j) for the ultimate holding company:
(i) its name; and
(ii) either:
(A) its ACN or ARBN if registered in this
jurisdiction; or
(B) the place at which it was incorporated or
formed if not registered in this jurisdiction.
(2) For section 346B of the Act, the following particulars are
prescribed for a registered scheme:
(a) registration number;
(b) name;
(c) name and ACN of the responsible entity;
(d) if the scheme is a managed investment scheme that is a unit
trust:
(i) issued interests in the scheme; and
(ii) the classes into which the interests are divided; and
(iii) for each class of interest issued:
(A) the number of interests in the class; and
(B) the total amount paid up for the class; and
(C) the total amount unpaid for the class;
(e) if the scheme is a managed investment scheme that is not a
unit trust:
(i) issued interests in the scheme; and
Federal Register of Legislative Instruments F2015C00303
Chapter 2N Updating ASIC information about companies and registered schemes
Part 2N.2 Extract of particulars
Regulation 2N.2.01
76 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Updating ASIC information about companies and registered schemes Chapter 2N
Return of particulars Part 2N.4
Regulation 2N.4.01
Corporations Regulations 2001 77
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Part 2N.4—Return of particulars
2N.4.01 Particulars ASIC may require in a return of particulars
(Act s 348B)
For section 348B of the Act, the following particulars are
prescribed:
(a) the personal details of a director, secretary or alternate
director mentioned in subsection 205B(3) of the Act;
(b) the date of appointment or cessation of a director, secretary
or alternate director;
(c) the date of change of name or change of address of a director,
secretary or alternate director;
(d) evidence that a specified person is (or is not) a director,
secretary or alternate director;
(e) completion of a declaration indicating that the company is a
special purpose company within the meaning of regulation 3
of the Corporations (Review Fees) Regulations 2003;
(f) the name of the ultimate holding company;
(g) the date on which a company became, or ceased to be, the
ultimate holding company;
(h) the previous name, or the new name, of the ultimate holding
company;
(i) the date of issue, cancellation, or transfer of shares;
(j) the date of any change to amounts paid on shares;
(k) a statement of whether or not shares for one or more
members are beneficially owned;
(l) the date of any change to beneficial ownership of shares;
(m) any of the following information from the share structure
table for a class of share:
(i) the share class code;
(ii) the full title of the class of share;
(iii) the total number of shares in the class that have been
issued;
Federal Register of Legislative Instruments F2015C00303
Chapter 2N Updating ASIC information about companies and registered schemes
Part 2N.4 Return of particulars
Regulation 2N.4.01
78 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Arrangements and reconstructions Part 5.1
Regulation 5.1.01
Corporations Regulations 2001 79
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.1 Arrangements and reconstructions
Regulation 5.1.02
80 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Receivers, and other controllers, of corporations Part 5.2
Regulation 5.2.01
Corporations Regulations 2001 81
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Part 5.2—Receivers, and other controllers, of
corporations
5.2.01 Controller’s notice to owner or lessor of property—how given
A notice under subsection 419A(3) of the Act must be given to the
owner or lessor, as the case may be, by personal delivery or by
prepaid post to the owner’s or lessor’s usual place of residence or
business or the place of residence or business last known to the
controller.
5.2.01 Certified copies of reports
A copy of:
(a) a report that must be lodged; and
(b) a certificate or other document annexed to that report;
must be certified in writing to be a true copy by:
(c) for a copy lodged for paragraph 429(2)(c) of the Act—the
controller of property of the corporation; or
(f) for a copy lodged for subsection 475(7) of the Act—by the
liquidator or provisional liquidator of the company.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.3A Administration of a company’s affairs with a view to executing a deed of
company arrangement
Regulation 5.3A.01
82 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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:
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Administration of a company’s affairs with a view to executing a deed of company
arrangement Part 5.3A
Regulation 5.3A.03A
Corporations Regulations 2001 83
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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;
(c) the ACN 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:
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.3A Administration of a company’s affairs with a view to executing a deed of
company arrangement
Regulation 5.3A.04
84 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(a) the name of the company;
(b) any trading name of the company;
(c) the ACN 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.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Administration of a company’s affairs with a view to executing a deed of company
arrangement Part 5.3A
Regulation 5.3A.06
Corporations Regulations 2001 85
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
(c) the ACN 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:
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.3A Administration of a company’s affairs with a view to executing a deed of
company arrangement
Regulation 5.3A.07
86 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Administration of a company’s affairs with a view to executing a deed of company
arrangement Part 5.3A
Regulation 5.3A.07A
Corporations Regulations 2001 87
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Note: Section 482 of the Act empowers the Court to stay or terminate a
winding up and to give consequential directions.
(7) An application under section 482 of the Act as applying because of
subregulation (6) may be made:
(a) despite subsection 499(4) of the Act, by the company
pursuant to a resolution of the board; or
(b) by the liquidator; or
(c) by a creditor; or
(d) by a contributory.
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;
(c) the ACN 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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.4 Winding up in insolvency
Regulation 5.4.01
88 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Winding up in insolvency Part 5.4
Regulation 5.4.02
Corporations Regulations 2001 89
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.4C Winding up by ASIC
Regulation 5.4C.01
90 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Voluntary winding up Part 5.5
Regulation 5.5.01
Corporations Regulations 2001 91
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
(c) the ACN 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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.01
92 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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:
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External administration Chapter 5
Winding up generally Part 5.6
Regulation 5.6.08
Corporations Regulations 2001 93
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(a) the bills; and
(b) the notes; and
(c) any other securities;
payable to the company (or to any of the companies in a pooled
group if paragraph 5.6.06(2)(b) applies) or the liquidator as soon as
possible after they are received by the liquidator.
5.6.08 Delivery of securities
All bills, notes or other securities deposited in a bank in accordance
with regulation 5.6.07 must be delivered out on the signed request
of the liquidator.
5.6.09 Special bank account
(1) The Court may give directions regarding the payment, deposit or
custody of:
(a) money; and
(b) bills, notes or other securities;
that are payable to, or into the possession of, a liquidator.
(2) If an application is made to the Court to authorise the liquidator to
make payments into and out of a special bank account, the Court
may:
(a) authorise the payments for the time and on the terms as it
thinks fit; and
(b) if the Court thinks that the account is no longer required—at
any time order it to be closed.
(3) An office copy of an order under subregulation (2) must be served
by the liquidator on the bank with which the special bank account
has been opened.
5.6.10 Payments out of liquidator’s general account
(1) A payment out of the liquidator’s general account may be made by
cheque or by electronic funds transfer.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.11
94 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Winding up generally Part 5.6
Regulation 5.6.11A
Corporations Regulations 2001 95
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(c) if those regulations are inconsistent with a particular
requirement of the Act, these Regulations or the rules—a
meeting mentioned in paragraph (2)(a) or (b).
5.6.11A Electronic methods of giving or sending certain notices etc
(1) This regulation applies if a person (the notifier) is authorised or
required to give or send a notice, or other document, to a person
(the recipient) under any of the following provisions:
(a) subregulation 5.6.12(1);
(b) subregulation 5.6.16(6);
(c) paragraph 5.6.48(2)(b);
(d) subregulation 5.6.53(1);
(e) subregulation 5.6.54(1);
(f) subregulation 5.6.55(3);
(g) subregulation 5.6.59(1);
(h) subregulation 5.6.62(1);
(i) paragraph 5.6.65(1)(b);
(j) paragraph 5.6.66(1)(d);
(k) paragraph 5.6.66(3)(a).
(2) If the recipient nominates an electronic address by which the
recipient may be notified of the notice or document, the notifier
may give or send the notice or document to the recipient by
sending it to that electronic address.
(3) If the recipient nominates any other electronic means by which the
recipient may be notified of such notices or documents, the notifier
may give or send the notice or document to the recipient by using
that electronic means.
(4) If the recipient nominates:
(a) an electronic means (the nominated notification means) by
which the recipient may be notified that such notices or
documents are available; and
(b) an electronic means (the nominated access means) the
recipient may use to access such notices or documents;
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.12
96 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
the notifier may give or send the document to the recipient by
notifying the recipient (using the nominated notification means):
(c) that the notice or document is available; and
(d) how the recipient may use the nominated access means to
access the notice or document.
(5) A notice or document sent to an electronic address, or by other
electronic means, is taken to be given or sent on the business day
after it is sent.
(6) A notice or document given or sent under subsection (4) is taken to
be given or sent on the business day after the day on which the
recipient is notified that the notice or document is available.
(7) Subregulations (2), (3) and (4) do not limit the provisions
mentioned in subsection (1).
5.6.12 Notice of meeting
(1) The convenor of a meeting must give notice in writing of the
meeting to every person appearing on the company’s books or
otherwise to be:
(a) in the case of a meeting mentioned in
subparagraph 5.6.11(2)(a)(i)—a member, creditor or
contributory of the company; or
(b) in the case of a meeting mentioned in
subparagraph 5.6.11(2)(a)(ii)—a member or creditor of the
company; or
(c) in the case of a meeting mentioned in
subparagraph 5.6.11(2)(a)(iii)—a member of the committee
of inspection; or
(d) in the case of a meeting mentioned in
subparagraph 5.6.11(2)(a)(iv)—a member of the committee
of creditors; or
(e) in the case of a meeting mentioned in
paragraph 5.6.11(2)(b)—a creditor of the company; or
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Winding up generally Part 5.6
Regulation 5.6.12
Corporations Regulations 2001 97
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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).
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.13
98 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(6) The notice mentioned in subregulation (1) must be:
(a) if convening a meeting of creditors under subsection 496(1)
of the Act—in accordance with Form 521; or
(b) if convening a meeting of creditors under section 436E of the
Act—in accordance with Form 529A; or
(c) in any other case—in accordance with Form 529.
(7) A notice of a joint meeting of the creditors and members of a
company must be sent to the creditors of the company at the same
time as it is sent to the members of the company.
(8) A notice to a creditor must be sent by the person convening the
meeting:
(a) to the address given by the creditor in his or her proof of debt
or claim; or
(b) if the creditor has not lodged a proof, to the address given in
the report on the affairs of the company; or
(c) to any other address known to the person.
(9) A notice of a meeting must be sent by the convenor of the meeting:
(a) to the address given in the company’s books as the address of
that person; or
(b) to any other address known to the person convening the
meeting.
5.6.13 Proof of notice
A statement in writing in accordance with Form 530 by:
(a) the person convening a meeting; or
(b) a person acting on his or her behalf;
that notice of the meeting was sent by prepaid post is, in the
absence of evidence to the contrary, sufficient proof of the notice
having been sent to a person at the address specified for that person
in that notice.
Federal Register of Legislative Instruments F2015C00303
External administration Chapter 5
Winding up generally Part 5.6
Regulation 5.6.13A
Corporations Regulations 2001 99
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.14
100 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(2) If the person, proxy or attorney is contacted, the convenor must
take all reasonable steps to ensure that the person, proxy or
attorney can hear the proceedings, and can be heard, by means of
those facilities, so that the person, proxy or attorney can participate
in the meeting.
(3) A person who, or whose proxy or attorney, participates in the
meeting by telephone in accordance with this regulation is taken to
be present in person at the meeting.
5.6.14 Time and place of meeting
(1) The convenor of a meeting must convene the meeting at the time
and place that he or she thinks are most convenient for the majority
of persons entitled to receive notice of the meeting.
(2) The convenor must give not less than 5 business days’ notice of the
time and place of the meeting, except in the case of:
(a) a meeting of creditors under section 436E, 439A or 445F, or
subsection 449C(4), of the Act; or
(b) a meeting of a committee of creditors; or
(c) a meeting of a committee of inspection.
(3) Subregulation (1) does not prevent the convenor convening a
meeting to take place at separate venues provided that technology
is available at the venues to give all persons attending the meeting
a reasonable opportunity to participate.
5.6.14A Advertisement of a meeting
(1) The convenor of a meeting must 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.
Federal Register of Legislative Instruments F2015C00303
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Winding up generally Part 5.6
Regulation 5.6.14B
Corporations Regulations 2001 101
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(3) The notice must state at least the following information:
(a) the name of the company;
(b) any trading name of the company;
(c) the ACN 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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.16
102 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
5.6.16 Quorum
(1) Subject to subregulation (3), a meeting must not act for any
purpose except:
(a) the election of a chairperson; and
(b) the proving of debts; and
(c) the adjournment of the meeting;
unless a quorum is present.
(2) A quorum consists of:
(a) if the number of persons entitled to vote exceeds 2—at least
2 of those persons; or
(b) if only one person is, or 2 persons are, entitled to vote—that
person or those persons;
present in person or by proxy or attorney.
(3) A meeting is sufficiently constituted if only one person is present
in person at the meeting if the person represents personally or by
proxy or otherwise a number of persons sufficient to constitute a
quorum.
(4) If within 30 minutes after the time appointed for a meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
the meeting is adjourned:
(c) to the same day in the next week at the same time and place;
or
(d) to the day (not being less than 7 or more than 21 days after
the day on which the meeting is adjourned) and at the time
and place that the chairperson appoints.
(6) The convenor of the meeting, or a person nominated by the
convenor, must immediately give notice of the adjournment to the
persons to whom notice of the meeting must be given under
regulation 5.6.12.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
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notices, the notifier may give or send the notice mentioned in this
subregulation by the nominated electronic means.
(7) A meeting on the date and at the place to which the meeting is
adjourned is not to be taken to be incompetent to act only because
of a failure to comply with subregulation (6) unless the Court, on
the application of the convenor of the meeting, or of a creditor or
contributory, otherwise declares.
(8) If within 30 minutes after the time appointed for the adjourned
meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
the adjourned meeting lapses.
5.6.17 Chairperson
(1) If a meeting is convened by:
(a) a liquidator; or
(b) a provisional liquidator; or
(c) an administrator of the company under administration or of a
deed of company arrangement; or
(d) a liquidator mentioned in paragraph 579L(1)(e) of the Act;
that person, or a person nominated by that person, must chair the
meeting.
(2) In any other case, the persons present and entitled to vote at a
meeting must elect one of their number to be chairperson of the
meeting.
5.6.18 Adjournment of meeting
(1) The chairperson of a meeting:
(a) if so directed by the meeting—must; or
(b) with the consent of the meeting—may;
adjourn the meeting from time to time and from place to place.
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Regulation 5.6.19
104 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(2) A meeting convened under section 439A of the Act must not be
adjourned to a day that is more than 45 business days after the first
day on which the meeting was held.
(3) An adjourned meeting must be held at the place of the original
meeting unless:
(a) the resolution for adjournment specifies another place; or
(b) the Court otherwise orders; or
(c) the liquidator or provisional liquidator, or the administrator
of a company under administration or of a deed of company
arrangement, otherwise orders; or
(d) the place of the original meeting is unavailable, in which case
the chairperson may appoint another place.
5.6.19 Voting on resolutions
(1) A resolution put to the vote of a meeting must be decided on the
voices unless, subject to subregulation (5), a poll is demanded,
before or on the declaration of the result of the voices:
(a) by the chairperson; or
(b) by at least 2 persons present in person, by proxy or by
attorney and entitled to vote at the meeting; or
(c) by a person present in person, by proxy or by attorney and
representing not less than 10% of the total voting rights of all
the persons entitled to vote at the meeting; or
(d) in the case of a meeting of members—by a member or
members holding shares in the company conferring a right to
vote at a meeting, being shares on which the total sum paid
up is not less than 10% of the total sum paid up on all the
shares conferring that right.
(2) Unless a poll is demanded, the chairperson must declare that a
resolution has been:
(a) carried; or
(b) carried unanimously; or
(c) carried by a particular majority; or
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(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
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Regulation 5.6.21
106 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
debts owed to all the creditors voting (whether in person, by
proxy or by attorney).
(3) A resolution is not carried if:
(a) a majority of creditors voting (whether in person, by proxy or
by attorney) vote against the resolution; and
(b) the value of the debts owed by the corporation to those
voting against the resolution is more than half the total debts
owed to all creditors voting (whether in person, by proxy or
by attorney).
(4) Subject to subregulation (4B), if no result is reached under
subregulation (2) or (3), then:
(a) the person presiding at the meeting may exercise a casting
vote in favour of the resolution, in which case the resolution
is carried; or
(b) the person presiding at the meeting may exercise a casting
vote against the resolution, in which case the resolution is not
carried; or
(c) if the person presiding at the meeting does not exercise a
casting vote, the resolution is not carried.
(4A) If no result is reached under subregulation (2) or (3), and the
meeting is not a meeting of eligible employee creditors, the person
presiding at the meeting must include in the minutes of the meeting
the reasons for exercising, or not exercising, as the case may be, a
casting vote under subregulation (4).
(4B) In the case of a meeting of eligible employee creditors mentioned
in paragraph 444DA(2)(a) of the Act, if no result is reached under
subregulation (2) or (3), the resolution is not carried.
(5) In this regulation
creditor includes a debenture holder.
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5.6.22 Carrying of resolution after a poll has been demanded at a
meeting of contributories or members
(1) This regulation applies to a poll taken at a meeting of
contributories or members.
(2) In counting the majority on a poll demanded on the question that a
resolution be carried, regard must be made to:
(a) the number of votes cast for or against the resolution; and
(b) the number of votes to which each member is entitled by the
Act or the articles of the company.
(3) The chairperson of the meeting has a casting vote in addition to his
or her deliberative vote.
5.6.23 Creditors who may vote
(1) A person is not entitled to vote as a creditor at a meeting of
creditors unless:
(a) his or her debt or claim has been admitted wholly or in part
by the liquidator or administrator of a company under
administration or of a deed of company arrangement; or
(b) he or she has lodged, with the chairperson of the meeting or
with the person named in the notice convening the meeting as
the person who may receive particulars of the debt or claim:
(i) those particulars; or
(ii) if required—a formal proof of the debt or claim.
(2) A creditor must not vote in respect of:
(a) an unliquidated debt; or
(b) a contingent debt; or
(c) an unliquidated or a contingent claim; or
(d) a debt the value of which is not established;
unless a just estimate of its value has been made.
(3) A creditor must not vote in respect of:
(a) a debt or a claim on or secured by:
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108 Corporations Regulations 2001
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(i) a bill of exchange; or
(ii) a promissory note; or
(iii) any other negotiable instrument or security;
held by the creditor unless he or she is willing:
(b) to treat the liability to him or her on the instrument or
security of a prescribed person as a security in his or her
hands; or
(c) to estimate its value; and
(d) for the purposes of voting (but not for the purposes of
dividend), to deduct it from his or her debt or claim.
(4) For paragraph 5.6.23(3)(b), a prescribed person is a person whose
liability is mentioned in paragraph 5.6.23(3)(a) who:
(a) is liable to the company directly; or
(b) may be liable to the company on the default of another
person with respect to the liability;
at the time of voting, but who is not:
(c) an insolvent under administration; or
(d) a person against whom a winding up order is in force.
5.6.23A Voting status of persons by whom money is advanced to a
company
(1) For this Part, a person by whom money is advanced to a company
as described in section 560 of the Act is entitled to one vote at a
meeting of creditors.
(2) Subregulation (1) applies whether the person has advanced money
to the company:
(a) on 1 occasion only; or
(b) on more than 1 occasion in respect of the same matter; or
(c) on 1 or more occasions in respect of more than 1 matter.
Note: Paragraph 560(c) of the Act provides that a person by whom money is
advanced to a company in specified circumstances has the same rights
as a creditor of the company in relation to matters set out in Chapter 5
of the Act. This includes voting at a meeting of creditors of the
company.
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5.6.24 Votes of secured creditors
(1) For the purposes of voting, a secured creditor must state in the
creditor’s proof of debt or claim:
(a) the particulars of his or her security; and
(b) the date when it was given; and
(c) the creditor’s estimate of the value of the security;
unless he or she surrenders the security.
(2) A creditor is entitled to vote only in respect of the balance, if any,
due to him or her after deducting the value of his or her security as
estimated by him or her in accordance with regulation 5.6.41.
(3) If a secured creditor votes in respect of his or her whole debt or
claim, the creditor must be taken to have surrendered his or her
security unless the Court on application is satisfied that the
omission to value the security has arisen from inadvertence.
(4) This regulation does not apply to:
(a) a meeting of creditors convened under Part 5.3A of the Act;
or
(b) a meeting held under a deed of company arrangement.
5.6.26 Admission and rejection of proofs for purposes of voting
(1) The chairperson of a meeting has power to admit or reject a proof
of debt or claim for the purposes of voting.
(2) If the chairperson is in doubt whether a proof of debt or claim
should be admitted or rejected, he or she must mark that proof as
objected to and allow the creditor to vote, subject to the vote being
declared invalid if the objection is sustained.
(3) A decision by the chairperson to admit or reject a proof of debt or
claim for the purposes of voting may be appealed against to the
Court within 10 business days after the decision.
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Regulation 5.6.27
110 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
5.6.27 Minutes of meeting
(1) The chairperson must, within the period specified in
subregulation (7):
(a) cause minutes of the proceedings to be drawn up and entered
in a record kept for the purpose; and
(b) sign the minutes after they have been entered in the record.
(1A) However, if the meeting is held on a consolidated basis,
subregulation (1) does not require the chairperson to draw up and
enter separate minutes for each of the companies to which the
meeting relates.
(2) A record of the persons present in person, by proxy or by attorney
at a meeting must be prepared and kept:
(a) if the meeting is of members or contributories—in
accordance with Form 531A; and
(b) if the meeting is of creditors, eligible employee creditors or
debenture holders—in accordance with Form 531B; and
(c) if the meeting is of a committee of inspection or a committee
of creditors—in accordance with Form 531C.
(3) The chairperson at a meeting (other than a meeting of holders of
debentures) must lodge a copy of the minutes of the meeting
certified by him or her to be a true copy within the period specified
in subregulation (7).
(3A) However, if the meeting is held on a consolidated basis,
subregulation (1) does not require the chairperson to lodge separate
copies of the minutes for each of the companies to which the
meeting relates.
(4) If the chairperson:
(a) dies without having signed the minutes as required by
subregulation (1), or without having lodged a certified copy
of the minutes as required by subregulation (3); or
(b) becomes incapable, whether through illness or other cause, of
signing the minutes as required by subregulation (1), or of
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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.
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Regulation 5.6.29
112 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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 emain( �
or
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(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.
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Regulation 5.6.30
114 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
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Corporations Regulations 2001 115
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5.6.32 Liquidator etc may act as proxy
A person may appoint:
(a) the liquidator; or
(b) the provisional liquidator; or
(c) the administrator of a company under administration or of a
deed of company arrangement; or
(d) the chairperson of a meeting;
by name or by reference to his or her office, to act as his or her
general or special proxy.
5.6.33 Voting by proxy if financially interested
A person acting under a general proxy must not vote in favour of
any resolution which would directly or indirectly place:
(a) the person; or
(b) the person’s partner; or
(c) the person’s employer;
in a position to receive any remuneration out of assets of the
company except as a creditor rateably with the other creditors of
the company.
5.6.34 Liquidator etc may appoint deputy
If:
(a) a liquidator; or
(b) an administrator of a company under administration or of a
deed of company arrangement; or
(c) a trustee for debenture holders;
holds a proxy and cannot attend the meeting for which it is given,
he or she may in writing appoint a person as a deputy who must:
(d) use the proxy:
(i) on his or her behalf in the manner he or she directs; or
(ii) if the proxy is a special proxy—in accordance with its
terms; and
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Regulation 5.6.36
116 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
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Corporations Regulations 2001 117
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(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;
(c) the ACN 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
(c) whether the debt is secured wholly or in part.
5.6.42 Discounts
In preparing a proof of debt or claim, a creditor must allow for all
discounts for which an allowance would have been made if the
company were not being wound up.
5.6.43 Periodical payments
(1) If rent or any other payment:
(a) falls due at stated times; and
(b) the relevant date is a time other than one of those times;
the person entitled to the rent or other payment may submit a proof
of debt or claim for a proportionate part of the rent or other
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Regulation 5.6.43A
118 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
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(b) for retrenchment payments;
one proof of debt or claim may be prepared and submitted on
behalf of those employees.
(2) A proof of debt or claim prepared and submitted under
subregulation (1):
(a) must have annexed to it a schedule setting out the names of
the employees and the amounts due to each of them; and
(b) has the same effect as if separate proofs had been prepared
and submitted by each of the employees named in the
schedule.
5.6.46 Production of bill of exchange and promissory note
If a company is, or may become, liable on:
(a) a bill of exchange; or
(b) a promissory note; or
(c) any other negotiable instrument or security;
it must be produced to the liquidator before a proof of debt or
claim for the liability can be admitted, unless the Court otherwise
orders.
5.6.47 Admission of debt or claim without formal proof
(2) If a liquidator admits a debt or claim without formal proof, it is not
necessary for the liquidator formally to admit the debt or claim in
writing.
(3) If a creditor’s debt or claim has been admitted without formal
proof, a notice of dividend is sufficient notice of the admission.
(4) A liquidator must not reject a debt or claim without:
(a) notifying the creditor of the grounds of the liquidator’s
rejection; and
(b) requiring that a formal proof of debt or claim be submitted
for that debt or claim.
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Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.48
120 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
paragraph by the nominated electronic means.
(3) The notice must state at least the following information:
(a) the name of the company;
(b) any trading name of the company;
(c) the ACN 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:
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Regulation 5.6.50
Corporations Regulations 2001 121
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(a) that is prepared and submitted in accordance with
regulation 5.6.45—must be in accordance with Form 536;
and
(b) in any other case—must be in accordance with Form 535.
5.6.50 Contents of formal proof of debt or claim
(1) A formal proof of debt or claim must:
(a) contain detailed particulars of the debt or claim sought to be
proved; and
(b) in the case of a debt, include a statement of account; and
(c) specify the vouchers (if any) by which the statement can be
substantiated.
(2) The liquidator may at any time call for the production of the
vouchers mentioned in subregulation (1).
5.6.51 Costs of proof
A creditor must bear the cost:
(a) of proving his or her debt or claim; or
(b) of amending a proof of debt or claim;
unless the Court otherwise orders.
5.6.52 Liquidator to notify receipt of proof of debt or claim
If a liquidator is requested to do so by the person submitting a
proof of debt or claim, the liquidator must notify that person of the
receipt of the proof and whether or not it has been admitted under
regulation 5.6.47.
5.6.53 Time for liquidator to deal with proofs
(1) A liquidator must, within:
(a) 28 days after receiving a request in writing from a creditor to
do so; or
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Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.54
122 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(b) if ASIC allows—any further period;
in writing:
(c) admit all or part of the formal proof of debt or claim
submitted by the creditor; or
(d) reject all or part of the formal proof of debt or claim; or
(e) require further evidence in support of it.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
subregulation by the nominated electronic means.
(2) If the liquidator does not deal with a request under
subregulation (1) in accordance with that subregulation, the
creditor who submitted the proof may apply to the Court for a
decision in respect of it.
(3) If the liquidator gives notice in writing to a creditor that further
evidence is required in support of the formal proof of debt or claim
submitted by the creditor under subregulation (1), the period
mentioned in that subregulation is taken not to have begun to run
until the day on which the liquidator receives a sufficient written
answer to his or her notice.
5.6.54 Grounds of rejection and notice to creditor
(1) Within 7 days after the liquidator has rejected all or part of a
formal proof of debt or claim, the liquidator must:
(a) notify the creditor of the grounds for that rejection in
accordance with Form 537; and
(b) give notice to the creditor at the same time:
(i) that the creditor may appeal to the Court against the
rejection within the time specified in the notice, being
not less than 14 days after service of the notice, or such
further period as the Court allows; and
(ii) that unless the creditor appeals in accordance with
subparagraph (i), the amount of his or her debt or claim
will be assessed in accordance with the liquidator’s
endorsement on the creditor’s proof.
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Winding up generally Part 5.6
Regulation 5.6.55
Corporations Regulations 2001 123
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
subregulation by the nominated electronic means.
(2) A person may appeal against the rejection of a formal proof of debt
or claim within:
(a) the time specified in the notice of the grounds of rejection; or
(b) if the Court allows—any further period.
(3) The Court may extend the time for filing an appeal under
subregulation (2), even if the period specified in the notice has
expired.
(4) If the liquidator has admitted a formal proof of debt or claim, the
notice of dividend is sufficient notice of the admission.
5.6.55 Revocation or amendment of decision of liquidator
(1) If the liquidator considers that a proof of debt or claim has been
wrongly admitted, the liquidator may:
(a) revoke the decision to admit the proof and reject all of it; or
(b) amend the decision to admit the proof by increasing or
reducing the amount of the admitted debt or claim.
(2) If the liquidator considers that all of a proof of debt or claim has
been wrongly rejected, the liquidator may:
(a) revoke the decision to reject the proof of debt or claim; and
(b) admit all of the proof or admit part of it and reject part of it.
(3) If the liquidator:
(a) revokes a decision to admit a proof of debt or claim and
rejects all of it; or
(b) amends that decision by reducing the amount of the admitted
debt or claim;
the liquidator must inform the creditor by whom it was lodged, in
writing, of his or her grounds for the revocation or amendment.
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Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.56
124 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
subregulation by the nominated electronic means.
(4) If the liquidator revokes a decision to admit a proof of debt or
claim and rejects all of it, or amends that decision by reducing the
amount of the admitted debt or claim, the creditor must at once
repay to the liquidator:
(a) the amount received as dividend for the proof; or
(b) the amount received as dividend that exceeds the amount that
the creditor would have been entitled to receive if his or her
debt or claim had been originally admitted for the reduced
amount.
(5) If the liquidator:
(a) revokes a decision to reject all of a proof of debt or claim; or
(b) amends a decision to admit part of a proof of debt or claim;
by increasing the amount of the admitted debt or claim, the creditor
by whom it was lodged is entitled to be paid, out of available
money for the time being in the hands of the liquidator:
(c) the dividend; or
(d) an additional amount of dividend;
that the creditor would have been entitled to receive if all of the
debt or claim had been originally admitted, or the increased
amount had been admitted, before the available money is applied
to pay a further dividend.
(6) The creditor is not entitled to disturb the distribution of any
dividends declared before the liquidator revoked or amended the
decision.
5.6.56 Withdrawal or variation of proof of debt or claim
A proof of debt or claim may be withdrawn, reduced or varied by a
creditor with the consent of the liquidator.
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Regulation 5.6.57
Corporations Regulations 2001 125
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
5.6.57 Oaths
The liquidator in a winding up by the Court may:
(a) administer an affirmation or oath; and
(b) take an affidavit;
for the purposes of the liquidator’s duties in relation to admitting a
debt or claim.
5.6.58 Liquidator to make out provisional list of contributories
If the liquidator of a company considers it necessary to make calls
on or adjust the rights of contributories, the liquidator must, as
soon as practicable, make out a provisional list of contributories in
accordance with Form 538.
5.6.59 Time and place for settlement of list
(1) The liquidator must give to each person included in the list not less
than 14 days’ notice in writing, in accordance with Form 539, of
the time and place appointed to settle the list.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
subregulation by the nominated electronic means.
(2) The liquidator or a person acting on his or her behalf must lodge a
statement in writing in the prescribed form that notice under
subregulation (1) was given to each person included in the
provisional list of contributories.
Note: Under section 350 of the Act, a document that the Act requires to be
lodged with ASIC in a prescribed form must:
(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and
(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.
On 23 December 2004, a form for the document mentioned in
subregulation (2) is not prescribed in these Regulations.
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Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.60
126 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(3) A statement under subregulation (2) is evidence that the notice was
sent to a person on the list at the address shown for that person, in
the absence of evidence to the contrary.
5.6.60 Settlement of list of contributories
(1) Before settling the list of contributories, the liquidator must hear
and determine any objection by a person to being included in the
list.
(2) The liquidator must settle the list of contributories and certify it, in
accordance with Form 541, at the time and place specified in the
notice given under regulation 5.6.59.
5.6.61 Supplementary list
(1) The liquidator may at any time vary or add to the list of
contributories by:
(a) making out a provisional supplementary list of contributories
in accordance with Form 542; and
(b) settling and certifying that list in accordance with Form 543.
(2) Regulation 5.6.59 and subregulation 5.6.60(1) apply to making out,
or settling and certifying, a supplementary list by the liquidator.
5.6.62 Notice to contributories
(1) Within 14 days after the settlement of the list, or supplementary
list, of contributories, the liquidator must:
(a) notify each person included in the list, or supplementary list,
of his or her inclusion; and
(b) at the same time give each person notice that he or she may
appeal to the Court against his or her inclusion within:
(i) 21 days after service of the notice; or
(ii) if the Court allows—any further period.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
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Regulation 5.6.63
Corporations Regulations 2001 127
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
notices, the notifier may give or send the notice mentioned in this
subregulation by the nominated electronic means.
(2) A person may appeal against his or her inclusion in the list, or
supplementary list, of contributories, within:
(a) 21 days after service on the person of the notice under
subregulation (1); or
(b) if the Court allows—any further period.
(3) The Court may extend the time for filing an appeal under
subregulation (2), even if the period of 21 days specified in
subregulation (1) has expired.
(4) A notice for subregulation (1) must be in accordance with Form
544.
(5) The liquidator, or a person acting on the liquidator’s behalf, must
lodge a statement in writing in the prescribed form that notice
under subregulation (1) was given to each person placed on the list,
or supplementary list, of contributories.
Note: Under section 350 of the Act, a document that the Act requires to be
lodged with ASIC in a prescribed form must:
(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and
(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.
On 23 December 2004, a form for the document mentioned in
subregulation (5) is not prescribed in these Regulations.
(6) A statement under subregulation (5) is sufficient evidence that the
notice was sent to a person on the list at the address shown for that
person, in the absence of evidence to the contrary.
5.6.63 Dividend payable only on admission of a debt or claim
A dividend in the winding up of the affairs of a company may be
paid only to a creditor whose debt or claim has been admitted by
the liquidator at the date of the distribution of dividends.
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Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.64
128 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
paragraph by the nominated electronic means.
(2) A notice in accordance with subregulation (1) must specify a date,
not less than 21 days after the date of the notice, on or before
which formal proof, in accordance with Form 535 or 536, of a debt
or claim must be submitted to participate in the distribution.
(2A) Also, the notice must state at least the following information:
(a) the name of the company;
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Regulation 5.6.66
Corporations Regulations 2001 129
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(b) any trading name of the company;
(c) the ACN 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:
(c) before the end of that period:
(i) admit a formal proof of debt or claim received by the
liquidator; or
(ii) reject it; or
(iii) admit part of it and reject part of it; or
(iv) require further evidence in support of it; and
(d) give notice of the liquidator’s decision to the creditor who
submitted the proof.
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
paragraph by the nominated electronic means.
(2) If, within whichever period is applicable under paragraph (1)(a) or
(b) or subregulation (3), the liquidator does not, in writing, deal
with a formal proof of debt or claim in accordance with
paragraphs (1)(c) and (d), the creditor who submitted the proof
may apply to the Court for a decision on it.
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Part 5.6 Winding up generally
Regulation 5.6.67
130 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(3) If the liquidator gives notice to a creditor that further evidence is
required in relation to a formal proof of debt or claim submitted by
the creditor:
(a) the liquidator must, in writing, deal with the formal proof of
debt or claim in accordance with paragraphs (1)(c) and (d),
within whichever period mentioned in paragraph (1)(a) or (b)
is applicable; and
Note: The effect of regulation 5.6.11A is that if a recipient has, in
accordance with that provision, nominated electronic means to receive
notices, the notifier may give or send the notice mentioned in this
paragraph by the nominated electronic means.
(b) that period must be taken not to have begun to run until the
day on which the liquidator receives a sufficient written
answer to his or her request.
5.6.67 Declaration and distribution of dividend
(1) The liquidator must, as soon as practicable, declare and distribute a
dividend among the creditors whose debts or claims have been
admitted.
(2) The liquidator must distribute as dividend all money in hand except
enough:
(a) to meet the costs of administration; or
(b) to give effect to the provisions of the Act.
(3) If the liquidator declares a dividend, he or she must send a notice
of that declaration, in accordance with Form 549, to every person
entitled to receive payment of the dividend.
5.6.68 Rights of creditor who has not proved debt before declaration
of dividend
(1) If:
(a) a creditor’s debt or claim has not been admitted before the
declaration of a dividend; and
(b) the debt or claim is admitted;
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Regulation 5.6.69
Corporations Regulations 2001 131
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
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Chapter 5 External administration
Part 5.6 Winding up generally
Regulation 5.6.71
132 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(c) the ACN 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:
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Regulation 5.6.74
Corporations Regulations 2001 133
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(i) a debt payable by a company or companies in a group to
any other company or companies in the group is not
extinguished;
(ii) a claim that a company or companies in a group has
against any other company or companies in the group is
not extinguished;
(b) a creditor that is determined by a Court to be an eligible
unsecured creditor.
Creditors that are not eligible unsecured creditors
(2) For subsection 579Q(2) of the Act, a creditor that is determined by
a Court not to be an eligible unsecured creditor is specified.
5.6.74 Interpretation: prescribed countries
For the definition of prescribed country in section 580 of the Act,
the following countries are prescribed:
(a) the Bailiwick of Jersey;
(b) Canada;
(c) the Independent State of Papua New Guinea;
(d) Malaysia;
(e) New Zealand;
(f) the Republic of Singapore;
(g) Switzerland;
(h) the United Kingdom;
(i) the United States of America.
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.
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Part 5.6 Winding up generally
Regulation 5.6.75
134 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
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Bodies corporate registered as companies, and registrable bodies Chapter 5B
Registrable bodies Part 5B.2
Regulation 5B.2.01
Corporations Regulations 2001 135
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Chapter 5B—Bodies corporate registered as
companies, and registrable bodies
Part 5B.2—Registrable bodies
5B.2.01 Certified copies of certificates of incorporation etc
For paragraphs 601CB(a) and 601CE(a) of the Act, a certified copy
of a current certificate of the incorporation or registration in its
place of origin, or a document of similar effect, of:
(a) a registrable Australian body; or
(b) a foreign company;
that is lodged with an application for registration under Division 1
or 2 of Part 5B.2 of the Act, must be a copy that:
(c) within the 3 months immediately before the day on which it
is lodged; or
(d) if ASIC permits—within a longer period;
has been certified to be a true copy by a person:
(e) who has the custody of the original document under a law in
force in the place of origin of the corporation or company;
and
(f) who exercises under that law functions similar to those
exercised by ASIC.
5B.2.02 Manner of certifying constituent documents
For paragraphs 601CB(b) and 601CE(b) of the Act, a certified
copy of a constitution of:
(a) a registrable Australian body; or
(b) a foreign company;
must be a copy that:
(c) within the period of 3 months immediately preceding the day
on which it is lodged; or
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Chapter 5B Bodies corporate registered as companies, and registrable bodies
Part 5B.2 Registrable bodies
Regulation 5B.2.03
136 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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
Federal Register of Legislative Instruments F2015C00303
Bodies corporate registered as companies, and registrable bodies Chapter 5B
Registrable bodies Part 5B.2
Regulation 5B.2.06
Corporations Regulations 2001 137
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5B Bodies corporate registered as companies, and registrable bodies
Part 5B.3 Names of registrable Australian bodies and foreign companies
Regulation 5B.3.01
138 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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:
Federal Register of Legislative Instruments F2015C00303
Bodies corporate registered as companies, and registrable bodies Chapter 5B
Names of registrable Australian bodies and foreign companies Part 5B.3
Regulation 5B.3.03
Corporations Regulations 2001 139
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5C Managed investment schemes
Part 5C.1 Registration of managed investment schemes
Regulation 5C.1.01
140 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Managed investment schemes Chapter 5C
Registration of managed investment schemes Part 5C.1
Regulation 5C.1.03
Corporations Regulations 2001 141
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5C Managed investment schemes
Part 5C.2 The responsible entity
Regulation 5C.2.01
142 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Managed investment schemes Chapter 5C
The compliance plan Part 5C.4
Regulation 5C.4.01
Corporations Regulations 2001 143
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Part 5C.4—The compliance plan
5C.4.01 Agents’ authorities to be lodged
If a compliance plan, or modification of a plan, lodged with ASIC
under section 601HC or subsection 601HE(3) of the Act is signed
by an agent of the directors of the responsible entity of the
registered scheme to which the plan relates, the authority to do so,
or a copy of the authority verified by a director of the entity, must
be attached to the plan or modification.
5C.4.02 Agents to assist auditors of compliance plans
An agent of the responsible entity of a registered scheme, and an
officer of the agent, must:
(a) allow the auditor of the scheme’s compliance plan to have
access to the books of the scheme; and
(b) if the auditor requires the agent or entity to give the auditor
information or an explanation for the audit—give the
information or explanation to the auditor; and
(c) otherwise assist the conduct of the audit.
Federal Register of Legislative Instruments F2015C00303
Chapter 5C Managed investment schemes
Part 5C.5 The compliance committee
Regulation 5C.5.01
144 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Part 5C.5—The compliance committee
5C.5.01 Responsible entities etc to assist compliance committees
(1) This regulation applies to a person who is the responsible entity of
a registered scheme, an officer of the entity, an agent of the entity
or an officer of the agent.
(2) The person must:
(a) allow the compliance committee to have access to the books
of the scheme; and
(b) if the committee requires the person to give the committee
information or an explanation about the scheme—give the
information or explanation to the committee; and
(c) otherwise assist the committee in the performance of its
functions.
Federal Register of Legislative Instruments F2015C00303
Managed investment schemes Chapter 5C
Winding up Part 5C.9
Regulation 5C.9.01
Corporations Regulations 2001 145
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5C Managed investment schemes
Part 5C.11 Exemptions and modifications
Division 1 Exemptions
Regulation 5C.11.01
146 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Managed investment schemes Chapter 5C
Exemptions and modifications Part 5C.11
Exemptions Division 1
Regulation 5C.11.01
Corporations Regulations 2001 147
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(C) commencing or undertaking legal proceedings;
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;
(c) a scheme (a litigation funding scheme) that has all of the
following features:
(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:
Federal Register of Legislative Instruments F2015C00303
Chapter 5C Managed investment schemes
Part 5C.11 Exemptions and modifications
Division 1 Exemptions
Regulation 5C.11.01
148 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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
(C) commencing or undertaking legal proceedings;
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.
Federal Register of Legislative Instruments F2015C00303
Managed investment schemes Chapter 5C
Exemptions and modifications Part 5C.11
Exemptions Division 1
Regulation 5C.11.01
Corporations Regulations 2001 149
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5C Managed investment schemes
Part 5C.11 Exemptions and modifications
Division 2 Modifications
Regulation 5C.11.02
150 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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’.
Federal Register of Legislative Instruments F2015C00303
Managed investment schemes Chapter 5C
Exemptions and modifications Part 5C.11
Modifications Division 2
Regulation 5C.11.06
Corporations Regulations 2001 151
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.1 Preliminary
Regulation 5D.1.01
152 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Preliminary Part 5D.1
Regulation 5D.1.02
Corporations Regulations 2001 153
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(c) as trustee for the benefit of present or future creditors of
another person when holding:
(i) mortgages, charges, guarantees, indemnities or other
rights or benefits that have been given to secure debts
owing to the creditors; and
(ii) the proceeds from the enforcement of any of the
securities mentioned in subparagraph (i);
Note: Securities is defined in section 92 of the Act.
(d) as custodian for another trustee or for the responsible entity
of a registered scheme or other commercial entity;
(e) as trustee of a managed investment scheme the main assets of
which consist of land and improvements on the land where
the trustee is not responsible for the daily management of the
land or any business conducted on the land;
Note: Managed investment scheme is defined in section 9 of the Act.
(f) as trustee for employee share or benefit schemes;
(g) as trustee for trusts the main activities of which consist of
making loans to, or otherwise investing in, companies or
other commercial entities;
(h) as an escrow agent;
(i) as a person named in a will as an executor when not actively
providing a service or function;
(j) as a person named in a power of attorney as an attorney when
not actively providing a service or function;
(k) preparing a power of attorney for a person’s medical
treatment or for guardianship of a person’s affairs;
(l) preparing a living will or advance health directive of any
kind.
(2) In this regulation:
custodian does not include a trustee establishing and operating a
common fund.
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.1 Preliminary
Regulation 5D.1.02
154 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
debt security means:
(a) any debenture, debenture stock, bond, note or other security
of a corporation or body; or
(b) any convertible note issued by a company or any convertible
note in a unit trust scheme issued by the trustee of a unit trust
scheme; or
(c) any right to a security mentioned in paragraph (a) or (b);
whether or not it is a charge on the assets of the corporation,
company, society or unit trust scheme.
employee share or benefit scheme means a scheme under which a
company offers for issue or sale shares (or options over issued
shares) in the company, or some other benefit in the company, only
to a director or employee of the company, or of an associated body
corporate, when the offer is made.
escrow agent means a person with whom is deposited a contract,
deed, bond or other written agreement or property for delivery to
the grantee, promisee or some other person on resolution of a
dispute or fulfilment of some condition.
loan-backed security means:
(a) an instrument or property:
(i) creating a right or interest (whether described as a unit,
bond or otherwise) for a beneficiary; or
(ii) conferring a right or interest (whether described as a
unit, bond or otherwise) on a beneficiary; or
(iii) consisting of a right or interest (whether described as a
unit, bond or otherwise) of a beneficiary;
in a scheme under which the profits, distributions of capital
or income in which beneficiaries share arise or arises from
the acquisition, holding, management or disposal of a loan or
pool of loans; or
(b) an instrument which evidences a right or interest mentioned
in paragraph (a); or
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Preliminary Part 5D.1
Regulation 5D.1.03
Corporations Regulations 2001 155
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(c) a debt security:
(i) the payments under which by the person that issues or
makes the instrument are derived mainly from the
acquisition, holding, management or disposal of a loan
or pool of loans; and
(ii) that is secured by a mortgage or charge over a loan or
pool of loans.
mortgage-backed security has the meaning given in
regulation 5D.1.03.
5D.1.03 Meaning of mortgage-backed security
(1) A mortgage-backed security is:
(a) an interest in a trust that entitles the holder of, or beneficial
owner under, the interest to:
(i) the whole, or any part, of the rights or entitlements of a
mortgagee and any other rights or entitlements in
respect of a mortgage or pool of mortgages; or
(ii) any amount payable by the mortgagor or mortgagors
under a mortgage or mortgages (whether or not the
amount is payable to the holder of, or beneficial owner
under, the interest on the same terms as under the
mortgage or mortgages); or
(iii) payments that are derived mainly from the income or
receipts of a mortgage or pool of mortgages;
and that may, in addition, entitle the holder, or beneficial
owner, to a transfer or assignment of the mortgage or
mortgages; or
(b) a debt security (whether or not in writing) the payments
under which by the person who issues or makes the debt
security are derived mainly from the income or receipts of a
mortgage or pool of mortgages; or
(c) any of the following:
(i) an interest in a trust:
(A) creating a right or interest (whether described as
a unit, bond or otherwise) for a beneficiary; or
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.1 Preliminary
Regulation 5D.1.04
156 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(B) conferring a right or interest (whether described
as a unit, bond or otherwise) on a beneficiary;
or
(C) consisting of a right or interest (whether
described as a unit, bond or otherwise) of a
beneficiary;
in a scheme under which any profit or income in which
the beneficiaries share arises from the acquisition,
holding, management or disposal of a mortgage, pool of
mortgages or the income or receipts of a mortgage or
pool of mortgages;
(ii) any instrument that evidences a right or interest
mentioned in subparagraph (i);
(iii) a security (whether or not in writing) the payments
under which by the person who issues or makes the
security are derived mainly from the income or receipts
of a mortgage or pool of mortgages;
(iv) an interest in a trust or a debt security (whether or not in
writing);
(v) an instrument or property that creates an interest in, or
charge over an interest in, a trust;
(vi) a debt security (whether or not in writing);
(vii) any other property to which paragraph (a) or (b) or
subparagraph (i), (ii) or (iii) applies.
(2) However, a mortgage-backed security does not include an
instrument or property consisting of any of the following:
(a) a mortgage;
(b) the transfer of a mortgage;
(c) a declaration of trust.
5D.1.04 Interaction between trustee company provisions and State
and Territory laws
(1) For paragraph 601RAE(4)(a) of the Act, the trustee company
provisions are intended to apply to the exclusion of the provisions
of State or Territory laws prescribed in Schedule 8AB.
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Preliminary Part 5D.1
Regulation 5D.1.04
Corporations Regulations 2001 157
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.2 Powers etc of licensed trustee companies
Division 2.1 Annual Information Returns
Regulation 5D.2.01
158 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Powers etc of licensed trustee companies Part 5D.2
Annual Information Returns Division 2.1
Regulation 5D.2.01
Corporations Regulations 2001 159
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(ii) a person who, under the terms of the trust, has power to
appoint or remove a trustee of the trust or to vary (or
cause to be varied) any of the terms of the trust; or
(iii) a person, or a person’s appointed successor, who is
named in the instrument establishing the trust as a
person who must, or may, be consulted by the trustee or
trustees before distributing or applying money or other
property for the purposes of the trust;
(c) in the case of any other trust:
(i) the settlor, or one of the settlors, of the trust; or
(ii) a person who, under the terms of the trust, has power to
appoint or remove a trustee of the trust or to vary (or
cause to be varied) any of the terms of the trust; or
(iii) a beneficiary of the trust.
(4) The person must make the request for an annual information return
in writing to the licensed trustee company and may indicate in the
request which one of the following forms of return is required:
(a) by sending it to the person’s postal address;
(b) by emailing it to a nominated email address.
(5) The annual information return must be provided within 30 days
after the request from the person is received by the licensed trustee
company, and then annually.
(6) The annual information return must be for the last financial year
that the licensed trustee company has provided a service to the
person who has requested the return.
(7) However, the licensed trustee company is not required to provide
an annual information return covering a period:
(a) before 1 July 2010; or
(b) before it provided a service to the person.
(8) The annual information return must be provided as follows:
(a) if requested in a particular form—in the form requested;
(b) in all other cases—by sending it to the person’s postal
address.
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.2 Powers etc of licensed trustee companies
Division 2.1 Annual Information Returns
Regulation 5D.2.02
160 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
5D.2.02 Information to be included in annual information return
The annual information return provided by a licensed trustee
company must include the following:
(a) for a person mentioned in subparagraphs 5D.2.01(3)(a)(i) and
(ii) and (c)(iii):
(i) details of income earned on the person’s interest in the
trust or estate; and
(ii) details of expenses in operating the trust or estate in
relation to the person’s interest in the trust or estate; and
(iii) the net value of the person’s interest in the trust or
estate;
(b) for any other person mentioned in subregulation 5D.2.01(3):
(i) details of income earned on the trust’s assets; and
(ii) details of expenses in operating the trust’s assets,
including remuneration, commission or other benefits
received by the trustee company; and
(iii) the net value of the trust’s assets;
(c) if required under the terms of the trust—a copy of the trust’s
audit report and financial statements for the year.
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Powers etc of licensed trustee companies Part 5D.2
Common funds Division 2.2
Regulation 5D.2.03
Corporations Regulations 2001 161
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.2 Powers etc of licensed trustee companies
Division 2.2 Common funds
Regulation 5D.2.06
162 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(c) the amount of fees that are to be paid by:
(i) the common fund for the provision of traditional trustee
company services; and
(ii) each account in the common fund;
(d) the manner in which a withdrawal can be made from the
common fund;
(e) the procedure for auditing the common fund;
(f) if the common fund is to have a limited life—the duration of
the common fund;
(g) if the common fund is to have a minimum amount that may
be invested in the fund on account of each estate—the
minimum amount.
Penalty: 50 penalty units.
(2) The licensed trustee company commits an offence if it does not:
(a) within 14 days of making the decision:
(i) send a copy of the decision to ASIC; and
(ii) publish a copy of the decision on its website; and
(b) if requested by a person entitled to request an annual
information return under subregulation 5D.2.01(3), make a
copy of the decision available to the person within 30 days of
the request being received.
Penalty: 50 penalty units.
5D.2.06 Operation of common funds
Compliance with the Act and regulations
(1) A licensed trustee company may, from time to time and without
liability for breach of trust, pay into or withdraw an amount from a
common fund in accordance with the Act and these Regulations.
Note: Payments into a common fund may be prohibited where this is
contrary to the conditions on which the company holds the money: see
subsection 601SCB(3) of the Act.
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Powers etc of licensed trustee companies Part 5D.2
Common funds Division 2.2
Regulation 5D.2.06
Corporations Regulations 2001 163
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.2 Powers etc of licensed trustee companies
Division 2.2 Common funds
Regulation 5D.2.06
164 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Powers etc of licensed trustee companies Part 5D.2
Common funds Division 2.2
Regulation 5D.2.07
Corporations Regulations 2001 165
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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:
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Chapter 5D Licensed trustee companies
Part 5D.2 Powers etc of licensed trustee companies
Division 2.2 Common funds
Regulation 5D.2.08
166 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Powers etc of licensed trustee companies Part 5D.2
Common funds Division 2.2
Regulation 5D.2.08
Corporations Regulations 2001 167
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Request for financial information
(5) A person who is entitled to request an annual information return
under subregulation 5D.2.01(3) may request, in writing, that the
licensed trustee company provide the information mentioned in
subregulation (7).
(6) The licensed trustee company commits an offence if it does not
provide the information mentioned in subregulation (7) to the
person within 30 days of receiving the request under
subregulation (5).
Penalty: 50 penalty units.
(7) The information that must be provided is:
(a) a copy of the common fund’s financial statements and audit
report; and
(b) the classes of investments in which the common fund is
invested and how the investment is divided between each
class; and
(c) the trustee company’s investment strategy for the common
fund.
Federal Register of Legislative Instruments F2015C00303
Chapter 5D Licensed trustee companies
Part 5D.3 Regulation of fees charged by licensed trustee companies
Regulation 5D.3.01
168 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.’
Federal Register of Legislative Instruments F2015C00303
Licensed trustee companies Chapter 5D
Obligations of receiving company after transfer Part 5D.4
Regulation 5D.4.01
Corporations Regulations 2001 169
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 6 Takeovers
Part 6.2 Exceptions to the prohibition
Regulation 6.2.01
170 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
Federal Register of Legislative Instruments F2015C00303
Takeovers Chapter 6
Exceptions to the prohibition Part 6.2
Regulation 6.2.02
Corporations Regulations 2001 171
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Federal Register of Legislative Instruments F2015C00303
Chapter 6 Takeovers
Part 6.5 The takeover procedure
Regulation 6.5.01
172 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Takeovers Chapter 6
Variation of offers Part 6.6
Regulation 6.6.01
Corporations Regulations 2001 173
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 6 Takeovers
Part 6.8 Acceptances
Regulation 6.8.01
174 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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).
Federal Register of Legislative Instruments F2015C00303
Takeovers Chapter 6
Review and intervention Part 6.10
Regulation 6.10.01
Corporations Regulations 2001 175
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Chapter 6A Compulsory acquisitions and buy-outs
Part 6A.1 Compulsory acquisitions and buy-outs after takeover bid
Regulation 6A.1.01
176 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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.
Federal Register of Legislative Instruments F2015C00303
Continuous disclosure Chapter 6CA
Regulation 6CA.1.01
Corporations Regulations 2001 177
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
Chapter 6CA—Continuous disclosure
6CA.1.01 Continuous disclosure: other disclosing entities
For paragraph 675(2)(d) of the Act, the disclosure of information
under section 675 of the Act is not required if:
(a) a reasonable person would not expect the information to be
disclosed; and
(b) the information is confidential; and
(c) at least 1 of the following applies:
(i) the disclosure of the information would contravene a
law;
(ii) the information is about a matter of supposition;
(iii) the information is not definite enough to make
disclosure appropriate;
(iv) the information relates to an incomplete proposal or a
matter that is in the course of negotiation;
(v) the information was prepared or created for the internal
management purposes of the entity;
(vi) the information is a trade secret.
Federal Register of Legislative Instruments F2015C00303
Chapter 6D Fundraising
Part 6D.2 Disclosure to investors about securities
Regulation 6D.2.01
178 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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
Federal Register of Legislative Instruments F2015C00303
Fundraising Chapter 6D
Disclosure to investors about securities Part 6D.2
Regulation 6D.2.04
Corporations Regulations 2001 179
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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;
(c) Section 3: About the issuer;
(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.
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Chapter 6D Fundraising
Part 6D.2 Disclosure to investors about securities
Regulation 6D.2.04
180 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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;
(c) an explanation of the role of the trustee;
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Regulation 6D.2.04
Corporations Regulations 2001 181
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(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.
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).
(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;
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Part 6D.2 Disclosure to investors about securities
Regulation 6D.2.04
182 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
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 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;
(c) any applicable selling restrictions.
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).
(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.
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Fundraising Chapter 6D
Disclosure to investors about securities Part 6D.2
Regulation 6D.2.05
Corporations Regulations 2001 183
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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;
(c) Section 3: Offer-specific information you should consider.
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:
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Chapter 6D Fundraising
Part 6D.2 Disclosure to investors about securities
Regulation 6D.2.05
184 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
(c) A base prospectus applies to 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;
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Fundraising Chapter 6D
Disclosure to investors about securities Part 6D.2
Regulation 6D.2.05
Corporations Regulations 2001 185
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(b) a short explanation of the circumstances in which the bonds
can be redeemed;
(c) any fees and costs associated with the offer;
(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;
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Part 6D.2 Disclosure to investors about securities
Regulation 6D.2.06
186 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
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).
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
(c) the interest cover ratio.
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Fundraising Chapter 6D
Disclosure to investors about securities Part 6D.2
Regulation 6D.2.06
Corporations Regulations 2001 187
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
(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.
Total liabilities
Total equity
Current assets
Current liabilities
EBITDA
Net interest expense
Federal Register of Legislative Instruments F2015C00303
Chapter 6D Fundraising
Part 6D.5 Fundraising—miscellaneous
Regulation 6D.5.01
188 Corporations Regulations 2001
Compilation No. 113 Compilation date: 31/3/15 Registered: 9/4/15
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”.
Federal Register of Legislative Instruments F2015C00303