Corporations Regulations 2001

Statutory Rules 2001 No. 1931

I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Corporations Act 2001.

Dated  12 JUL 2001 200l

Peter Hollingworth.

Governor-General

By His Excellency’s Command

JOE HOCKEY

Minister for Financial Services and Regulation

0104851B-010704Z.doc 4/07/2001 12:37 PM

Contents

Contents

Page

Note about these Regulations 20

Chapter 1 Introductory

Part 1.0 Miscellaneous

1.0.01 Name of Regulations 20

1.0101A Commencement 20

1.0.02 Interpretation 20

1.0.03 Approved and prescribed forms 22

1.0.04 Directions and instructions in forms 22

1.0.05 Documents and information required by forms 22

1.0.06 Annexures accompanying forms 23

1.0.07 General requirements for documents 23

1.0.08 Information to accompany financial documents lodged for financial years              25

1.0.09 Information to accompany financial documents etc lodged for half-years              25

1.0.10 Continuous disclosure notices 26

1.0.11 Certain documents to be signed by personal 27

representatives etc

1.0.12 Form of notice of resolution 27

1.0.13 Time for lodging documents 27

1.0.14 Address of registered office or place of business 28

1.0.15 Affidavits and statements in writing 28

1.0.16 Certification and verification of certain documents 28

1.0.17 Documents signed or sworn in accordance with the rules 29

1.0.18 Prescribed provisions (Act s 53) 29

1.0.20 Copies of orders to be lodged 29

1.0.21 Identification of lodged orders 29

Part 1.1 Prescribed amounts

1.1.01 Prescribed amounts 30

Contents

Page

Part 1.2 Interpretation

Division 1 Share ratio contracts

Subdivision A Preliminary

1.2.01 What is a share ratio contract? 31

Subdivision B Application of Chapters 6D and 7 of the Act to share ratio contracts

1.2.02 Relevant agreements — paragraph 92A (1) (b) of the Act 32

1.2.03 Application of Chapter 7 of the Act 32

1.2.04 Application of Division 2A of Part 7.11 of the Act to share ratio contracts              34

1.2.05 Application of certain provisions of Chapter 7 of the Act to share ratio contracts              34

1.2.06 Application of Chapters 6D and 7 of the Act 34

1.2.07 Restrictions on dealers in share ratio contracts 34

1.2.08 Restrictions on securities licensees in providing investment advice in relation to share ratio contracts              35

Subdivision C Application of Chapter 8 of the Act to share ratio contracts

1.2.09 Application of Part 8.3 for certain purposes 36

1.2.10 Application of Chapter 8 of the Act 36

Subdivision D Miscellaneous

1.2.11 Subsection 93 (7) of the Act not to apply in certain circumstances 37

Division 2 Deliverable bond futures contracts

Subdivision A Preliminary

1.2.12 What is a deliverable bond futures contract? 37

Subdivision B Application of Chapters 6D and 7 of the Act to deliverable bond futures contracts

1.2.13 Prescribed Chapter 8 agreement 38

1.2.14 Application of Chapters 6D and 7 of the Act 39

Subdivision C Application of Chapter 8 of the Act to deliverable bond futures contracts

1.2.15 Application of Chapter 8 of the Act 39

Subdivision D Modifications of the Act applying in relation to deliverable bond futures contracts

1.2.16 Modification of section 9 of the Act 39

Contents

Page

Division 3 Futures options over deliverable bond futures contracts

Subdivision A Preliminary

1.2.17 What is a futures option over a deliverable bond futures contract? 40

Subdivision B Application of Chapters 6D and 7 of the Act to futures options over deliverable bond futures contracts

1.2.18 Prescribed Chapter 8 agreement 40

1.2.19 Application of Chapters 6D and 7 of the Act 40

Subdivision C Application of Chapter 8 of the Act to futures options over deliverable bond futures contracts

1.2.20 Application of Chapter 8 of the Act 41

Division 4 Deliverable share futures contracts

Subdivision A Preliminary

1.2.21 What is a deliverable share futures contract? 41

Subdivision B Application of Chapters 6D and 7 of the Act to deliverable share futures contracts

1.2.22 Prescribed Chapter 8 agreement 42

1.2.23 Application of Chapters 6D and 7 of the Act 42

Subdivision C Application of Chapter 8 of the Act to deliverable share futures contracts

1.2.24 Application of Chapter 8 of the Act 43

Subdivision D Modifications of the Act applying in relation to deliverable share futures contracts

1.2.25 Modification of section 9 of the Act 43

1.2.26 Modification of subsection 979 (1) of the Act 44

1.2.27 Modification of Division 1 of Part 8.7 of the Act 44

Division 5 Futures options over deliverable share futures contracts

Subdivision A Preliminary

1.2.28 What is a futures option over a deliverable share futures contract? 44

Subdivision B Application of Chapters 6D and 7 of the Act to futures options over deliverable share futures contracts

1.2.29 Prescribed Chapter 8 agreement 45

1.2.30 Application of Chapters 6D and 7 of the Act 45

Subdivision C Application of Chapter 8 of the Act to futures options over deliverable share futures contracts

1.2.31 Application of Chapter 8 of the Act 45

Contents

Page

Subdivision D Modifications of the Act applying in relation to futures options over deliverable share futures contracts

1.2.32 Modification of Division 1 of Part 8.7 of the Act 45

Part 1.2A Disclosing entities

1.2A.01 Securities declared not to be ED securities 47

1.2A.02 Foreign companies issuing securities under foreign scrip offers etc exempt from disclosing entity provisions              47

1.2A.03 Foreign companies issuing securities under employee share scheme exempt from the disclosing entity provisions              49

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 50

Part 2A.2 Change of place of registration of company (Act s119A (3))

2A.2.01 Approval of application for change of place of registration 50

2A.2.02 Special resolution may be set aside by Court order 51

2A.2.03 Application for change of place of registration 51

2A.2.04 Change of place of registration 51

Chapter 2B Basic features of a company

Part 2B.6 Names

2B.6.01 Availability of names (Acts 147) 53

2B.6.02 Consents required for use of certain letters, words and expressions 53

2B.6.03 Exemptions from requirement to set out name and ACN on certain documents (Act s 155)              54

Chapter 2C Registers

2C.1.01 Securities exchange (Act s 170 (3)) 55

2C.1.02 Form of notice (Act s 172 (2)) 55

Chapter 2D Officers

2D.1.02 Securities exchange (Act s 205G) 56

Contents

Page

Chapter 2K Charges

Part 2K.2 Registration

2K.2.01 Lien or charge on crop, wool or stock mortgage that is a registrable security: prescribed law              57

2K.2.02 Time period for the provisional registration of charges 58

Chapter 2M Financial reports and audit

Part 2M.3 Financial reporting

Part 2M.4 Auditor

2M.4.01 Notice of appointment of auditors 60

Part 2M.6 Modification of the operation of Chapter 2M of the Act

2M.6.01 Modifications (Act s 343) 61

2M.6.03 Financial reporting — Australian banks and life offices 61

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              62

5.1.02 Giving notice under subsection 414 (2) or (9) of the Act 63

Part 5.2 Receivers, and other controllers, of corporations

5.2.01 Controller’s notice to owner or lessor of property — how given 64

5.2.01 Certified copies of reports 64

Contents

Page

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 65

5.3A.02 Administrator to specify voidable transactions in statement 65

5.3A.03 Administrator to lodge notice of appointment 65

5.3A.04 Notice of change of administrator’s address 66

5.3A.05 Administrator’s notice to owner or lessor of property — how given 66

5.3A.06 Provisions included in deed of company arrangement 66

5.3A.07 Administrator becomes liquidator — additional cases 66

5.3A.08 Publication of notice of failure to execute instrument of terms of deed 68

5.3A.09 Publication of notice of termination of deed by creditors 68

Part 5.4 Winding up in insolvency

5.4.01 Application to Court for winding up — prescribed agency 69

Part 5.6 Winding up generally

5.6.01 Matters for entry in liquidator’s or provisional liquidator’s books 70

5.6.02 Inspection of books kept under section 531 of the Act 70

5.6.06 Payment into liquidator’s general account 70

5.6.07 Deposit of securities 70

5.6.08 Delivery of securities 71

5.6.09 Special bank account 71

5.6.10 Payments out of liquidator’s general account 71

5.6.11 Application 72

5.6.12 Notice of meeting 72

5.6.13 Proof of notice 74

5.6.13A If telephone conference facilities are available 74

5.6.13B Persons, or their proxies or attorneys, participating by telephone 75

5.6.14 Time and place of meeting 76

Contents

Page

5.6.14A Advertisement of a meeting 76

5.6.14B Meetings not convened in accordance with regulations 76

5.6.15 Costs of convening meetings of creditors etc 76

5.6.16 Quorum 77

5.6.17 Chairperson 78

5.6.18 Adjournment of meeting 78

5.6.19 Voting on resolutions 79

5.6.20 Taking a poll 80

5.6.21 Carrying of resolutions after a poll has been demanded at a meeting of creditors              80

5.6.22 Carrying of resolution after a poll has been demanded at a meeting of contributories or members              81

5.6.23 Creditors who may vote 81

5.6.24 Votes of secured creditors 83

5.6.26 Admission and rejection of proofs for purposes of voting 83

5.6.27 Minutes of meeting 83

5.6.28 Appointment of proxies 85

5.6.29 Form of proxies 85

5.6.30 Instruments of proxy 86

5.6.31 Proxy forms to accompany notice of meetings 86

5.6.31 A Person may attend and vote by attorney 86

5.6.32 Liquidator etc may act as proxy 87

5.6.33 Voting by proxy if financially interested 87

5.6.34 Liquidator etc may appoint deputy 88

5.6.36 Time for lodging proxies 88

5.6.36A Facsimile copies of proxies 88

5.6.37 Establishing title to priority 89

5.6.39 Notice to submit particulars of debt or claim 89

5.6.40 Preparation of a proof of debt or claim 89

5.6.41 Disclosure of security 89

5.6.42 Discounts 90

5.6.43 Periodical payments 90

5.6.43A Debt or claim of uncertain value — appeal to Court 90

5.6.44 Debt discount rate (Act s 554B) 91

5.6.45 Employees’ wages 91

5.6.46 Production of bill of exchange and promissory note 91

5.6.47 Admission of debt or claim without formal proof 92

Contents

Page

5.6.48 Notice to creditors to submit formal proof 92

5.6.49 Formal proof of debt or claim 93

5.6.50 Contents of formal proof of debt or claim 93

5.6.51 Costs of proof 93

5.6.52 Liquidator to notify receipt of proof of debt or claim 94

5.6.53 Time for liquidator to deal with proofs 94

5.6.54 Grounds of rejection and notice to creditor 94

5.6.55 Revocation or amendment of decision of liquidator 95

5.6.56 Withdrawal or variation of proof of debt or claim 96

5.6.57 Oaths 97

5.6.58 Liquidator to make out provisional list of contributories 97

5.6.59 Time and place for settlement of list 97

5.6.60 Settlement of list of contributories 97

5.6.61 Supplementary list 98

5.6.62 Notice to contributories 98

5.6.63 Dividend payable only on admission of a debt or claim 99

5.6.64 Application of regulations 5.6.37 to 5.6.57 99

5.6.65 Liquidator to give notice of intention to declare a dividend 99

5.6.66 Time allowed for dealing with formal proof of debt or claim 100

5.6.67 Declaration and distribution of dividend 101

   5.6.68 Rights of creditor who has not proved debt before declaration of dividend 101

5.6.69 Postponement of declaration 102

5.6.70 Payment of dividend to a person named 102

5.6.70A Prescribed rate of interest on debts and claims from relevant date to date of payment              102

5.6.71 Distribution of surplus in a winding up by the Court 102

5.6.72 Distribution of surplus as directed 102

5.6.74 Interpretation: prescribed countries 103

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 104

5B.2.02 Manner of certifying constituent documents 104

Contents

Page

5B.2.03 Manner of sending letters (Act ss 601CC (2) and 601CL (3)) 105

5B.2.04 Manner of sending notices (Act ss 601 CC (3) and 601 CL (4)) 105

5B.2.06 Notices (Acts 601 CV (1)) 105

Part 5B.3 Names of registrable Australian bodies and foreign companies

5B.3.01 Availability of names (Act s 601 DC) 107

5B.3.02 Consents required for use of certain letters, words and expressions 107

5B.3.03 Exemptions from requirement to set out ARBN etc on certain documents (Act s 601DG)              108

5B.3.04 Notices (Act s 601DH (1)) 108

Chapter 5C Managed investment schemes

Part 5C.1 Registration of managed investment schemes

5C.1.01 Applying for registration 110

5C.1.02 Change of name of registered schemes 110

5C.1.03 Modification (Acts 601QB) 111

Part 5C.2 The responsible entity

5C.2.01 Duty of responsible entities’ agents — surveillance checks 112

5C.2.02 Appointment of temporary responsible entities 112

5C.2.03 Form of notices (Act ss 601FL (2) and 601FM (2)) 112

5C.2.04 Notice of appointment of temporary responsible entities 112

5C.2.05 Form of notices (Act s 601FP (3)) 112

Part 5C.4 The compliance plan

5C.4.01 Agents’ authorities to be lodged 113

5C.4.02 Agents to assist auditors of compliance plans 113

Part 5C.5 The compliance committee

5C.5.01 Responsible entities etc to assist compliance committees 114

Contents

Page

Part 5C.9 Winding up

5C.9.01 Notice of commencement of winding up 115

Part 5C.11 Exemptions and modifications

Division 1 Exemptions

5C-11.01 Certain funds not managed investment funds 116

Division 2 Modifications

5C.11.02 Modifications 116

5C.11.03 Register of members of registered schemes (Act s 169 (1)) 116

5C.11.04 Names of registered schemes (Act s 601EB (1)) 116

5C.11.05A Schemes not required to be registered (Acts 601 ED) 116

5C.11.06 Liability of responsible entities (Act s 601FB (4)) 117

Chapter 6 Takeovers

Part 6.2 Exceptions to the prohibition

6.2.01 Prescribed circumstances (Act s 611) 118

6.2.02 Other prescribed circumstances (Acts 611) 119

Part 6.10 Review and intervention

6.10.01 Application for review of Pane! decision (Act s 657EA) 120

Chapter 6D Fundraising

Part 6D.2 Disclosure to investors about securities

6D.2.01 Exemption — member shares 121

6D.2.02  Exemption — foreign companies 121

Chapter 7 Securities

Part 7.1 Interpretation

7.1.01 Definition of authorised trustee corporation 122

7.1.03 Option contract — prescribed indexes 122

Contents

Page

Part 7.2 Securities Exchanges

7.2.01 Securities Exchanges — information exempt from lodgement requirements 124

7.2.02 Compliance monitoring — section 770A stock markets 124

Part 7.3 Participants in the securities industry

7.3.01 Licensee to notify events adversely affecting financial position 125

7.3.01A Exemptions from Chapter 7 of the Act 125

7.3.01B Exemptions from Chapter 7 of the Act — dealings by the Exchange or OCH 126

7.3.02 Conditions to which licences are subject 126

7.3.02B Licence conditions — investment advice to retail investors 127

7.3.02C Licence conditions — personal securities recommendations to retail investors 131

7.3.02D Licence conditions — general securities advice to investor or prospective investor              132

7.3.03 Amount of security 133

7.3.04 Application of security under subsection 786 (9) of the Act 133

7.3.05 Prescribed form: s 790 of the Act 134

7.3.06 Discharge, return or release of security 135

7.3.07 Effect of discharge of security 136

7.3.08 Register of holders of proper authorities: prescribed information 137

7.3.09 Licensees to notify Commission of location and contents of registers 137

7.3.10 Exemptions from licensing for lenders etc 137

7.3.10A Exemption from licensing — certain dealings 138

7.3.11 Exemption from licensing — managed investment schemes 138

7.3.12 Exemption from licensing — dealings in own securities and sub-underwriting 139

7.3.13 Exemptions from licensing — superannuation schemes, life offices and friendly societies              140

7.3.13A Action by representatives of certain friendly societies 140

7.3.13B Friendly society dealing in interests in friendly society benefit fund 142

Contents

Page

7.3.13C Authorisation to deal in interests in certain friendly societies 142

7.3.14 Exemption from licensing etc — Australian ADIs 142

7.3.14A Exemptions from licensing 143

7.3.15 Sale of forfeited shares exempt (Act s 30) 143

7.3.16 Exemption from Chapter 7 — transactions in option contracts on the NZFOE market (Act s 30)              143

7.3.17 Application of certain provisions of Act to section 770A stock markets 145

7.3.18 Supervisors have qualified privilege in certain circumstances 146

Part 7.4 Conduct of securities business

7.4.01 Exempt dealer 147

7.4.01A Exemption from certain requirements in relation to contract notes 147

7.4.02 Exempt securities and interests 150

7.4.03 Transactions in prescribed circumstances 150

7.4.04 Exempted transaction 150

7.4.04A Charging brokerage on principal transactions 150

7.4.05 Exemption from subsection 844 (2) of the Act 151

7.4.06 Dealings by employees of holders of licences 151

7.4.07 Exemption of sale of exchange traded options 151

7.4.08 Exemption of short sale covered by exchange traded options 152

Part 7.5 Dealer’s account and audit

7.5.01 Auditor’s report 154

Part 7.6 Money and scrip of dealer’s clients

7.6.01 Dealer’s trust accounts: exempt 155

Part 7.7 Registers of interests in securities

7.7.01 Register of interests in securities 156

7.7.02 Entry of particulars in Register 156

Contents

Page

Part 7.10 The National Guarantee Fund

7.10.01 Prescribed rate of interest: subsection 972 (2) of the Act 157

Part 7.11 Conduct in relation to securities

7.11.01 Prohibition of dealings in securities by insiders 158

Part 7.13 Title to, and transfer of, securities

7.13.01 Details to be included in instruments of transfer 159

7.13.02 Marketable securities (Act s 1097 (1)) 159

7.13.03 Eligible body: subsection 1097 (1) of the Act 159

Part 7.14 Miscellaneous

7.14.01 Period for which documents are to be retained 160

7.14.02 Futures contracts 160

Part 7.15 Notification about payment of levies

7.15.01 Notification about payment of levies 161

Chapter 8 The futures industry

Part 8.1 Interpretation

8.1.01 Exemption from Parts 8.3, 8.4 and 8.5 of the Act 162

8.1.01A Exemption of transactions relating to sporting events from Chapter 8 of the Act 162

8.1.02 Eligible exchange-traded options 162

Part 8.2 Futures exchanges, clearing houses and futures associations

8.2.01 Applications for licences in sealed envelopes 164

8.2.02 Recognised futures exchanges — prescribed bodies corporate 164

8.2.03 Exemption: Section 1121 and Division 2 of Part 8.2: Comex Clearing Association of New York              164

Contents

Page

Part 8.3 Participants in the futures industry

8.3.01 Exemption: Divisions 1 and 2 of Part 8.3, sections 1206, 1207 and 1208 and Part 8.5: clearing houses              165

8.3.02 Exemption: Part 8.3 — certain futures contracts 165

8.3.03 Conditions of licence: general 168

8.3.04 Notifying change in particulars 168

   8.3.05 Register of holders of proper authorities: prescribed information 168

   8.3.06 Licensee to notify Commission of location and contents of register 168

Part 8.4 Conduct of futures business

8.4.01 Exemption of certain transactions from subsection 1206 (1) of the Act 169

8.4.01A Which futures broker to comply with subsection 1206 (1) of the Act in relation to certain transactions?              169

8.4.01B Exemption from certain requirements in relation to contract notes 170

8.4.02 Waiver of paragraph 1206 (1) (b) of the Act 172

8.4.03 Exemption of certain transactions from subsection 1207(1) of the Act 173

8.4.03A Which futures broker to comply with subsection 1207 (1) of the Act in relation to certain transactions              173

8.4.03B Sending a monthly statement electronically 173

8.4.04 Exemption of certain transactions from paragraphs 1207 (1) (g) and (h) of the Act              174

Part 8.6 Fidelity funds

8.6.0  Fidelity fund — prescribed rate of interest 175

Part 8.7 Offences

8.7.01 Prescribed particulars in respect of transmission and execution of orders 176

8.7.02 Futures brokers that are banks — credit to employees to deal in futures contracts              176

8.7.03 Period for which Commission is required to retain documents 176

Contents

Page

Chapter 9 Miscellaneous

Part 9.1 Registers and registration of documents

9.1.01 Prescribed registers 177

9.1.02 Prescribed information 178

Part 9.2 Registration of auditors and liquidators

9.2.01 Prescribed bodies 181

9.2.02 Prescribed universities 181

9.2.03 Prescribed institutions 182

9.2.04 Practical experience in auditing (Act s 1280 (2)) 183

9.2.05 Application of security under subsection 1284 (2) of the Act 183

9.2.06 Discharge, return or release of security 185

9.2.07 Effect of discharge of security 187

Part 9.4 Penalty notice offences and penalties

9.4.01 Prescribed offences (Act s 1313) 188

9.4.02 Prescribed penalties (Act s 1313) 188

Part 9.4A Register and index

9.4A.01 Definitions for Part 9.4A 189

9.4A.02 Register and index must be kept up to date: subsection 1306 (4A) of the Act 189

Part 9.5 Delegation of powers and functions under the Act

9.5.01 Prescribed functions (Law s 1345A (1)) 190

Chapter 10 Repeals

Part 10.1 Old Corporations Regulations

10.1.01 Repeal of Corporations Regulations 1990 191

10.1.02 Repeal of Partnerships and Associations Application Order1999 (No. 1) 191

Contents

Page

Chapter 12 Financial sector reform

Part 12.1 Preliminary

12.1.01 Definitions for Chapter 12 192

12.1.02 Application of this Chapter to previous governing Codes etc 193

12.1.03 Interpretation of applied provisions 193

Part 12.2 Transitional matters — general

Division 2 Other matters

12.2.08 Lodgment of certain documents with ASIC 195

12.2.10 Certain appointments of auditors continue 195

12.2.12 Converted shares 195

Part 12.4 Notice of meetings of certain bodies corporate

12.4.01 Application of Part 196

12.4.02 Modification of certain provisions of Act 196

12.4.03 Members etc may elect to be notified of meetings 196

12.4.04 Notice of meetings to be published in press 198

12.4.05 Copies of notices to be displayed 198

12.4.06 Members may request notice of meetings at any time 199

12.4.07 Records to be kept about notices 199

Part 12.5 Determinations and declarations in relation to certain instruments

12.5.01 Definition for Part 12.5 200

12.5.02 Application, variation, revocation and modification 200

12.5.03 Effect of determinations and declarations 201

12.5.04 Publication of determinations and declarations 201

12.5.05 When determinations and declarations take effect 202

12.5.06 Inspection and purchase of copies of instruments 202

Part 12.6 Financial reporting by certain bodies corporate

12.6.01 Application of Part 203

Contents

Page

12.6.02 Modification of certain provisions of Act 203

12.6.03 Members etc may elect to receive reports 203

12.6.04 Copies of reports to be available to members 204

12.6.05 Records to be kept about notices 205

Part 12.7 Other disclosure

Division 1 Preliminary

12.7.01 Definitions for Part 12.7 206

12.7.02 Declarations by ASIC 206

Division 2 Continued application of certain provisions

12.7.03 Continuation of certain provisions of previous governing Codes 207

12.7.04 Continuation of ASIC transitional standards 208

12.7.05 Exemption from, and modification of, certain provisions 208

Part 12.8 Shares in certain bodies corporate

Division 1 Preliminary

12.8.02 Application of Part 12.8 210

12.8.03 What is a member share 210

12.8.04 Declarations by ASIC 211

Division 2 Member shares

12.8.05 Notice requirements 211

12.8.06 Registers of members 211

12.8.06A Member shares — liability to pay calls 213

12.8.07 Disclosure in annual returns 213

12.8.08 Member shares — numbering and certificates 214

12.8.09 Member shares — unclaimed property 214

Division 3 Certain shares in transferring building societies and credit unions

12.8.10 Definitions for Division 3 214

12.8.11 Transferring building societies may issue shares equivalent to membership shares              214

12.8.12 Transferring credit unions may issue shares equivalent to withdrawable shares 215

Contents

Page

Part 12.9 Winding up and deregistration of certain transferring financial institutions

12.9.01 Application of Part 12.9 217

12.9.02 Winding up 217

12.9.03 Deregistration 217

Schedule 1 List of forms in Schedule 2 218

Schedule 2 Forms 230

Schedule 3 Specified offices 231

Schedule 4 Prescribed amounts 234

Schedule 5A Financial reporting — Australian banks and life offices 236

Schedule 6 Availability of names 239

Part 1 Rules for ascertaining whether names are identical 239

Part 2 Names unacceptable for registration 240

Part 3 Restricted words and phrases 245

Part 4 Consent required to use restricted words and phrases 246

Part 5 Names relating to financial institutions for use of which consent is required 246

Schedule 7 Exemptions from requirements to set out certain corporate particulars 247

Schedule 8 Schemes of arrangement under Part 5.1 of the Act 250

Part 1 Interpretation and application 250

Part 2 Prescribed information relating to proposed compromise or arrangement with creditors or class of creditors              251

Part 3 Prescribed information relating to proposed compromise or arrangement with members or a class of members              252

Part 4 Prescribed information relating to proposed compromise or arrangement with members or class of members for transfer to a trustee              257

Contents

Page

Schedule 8A Deed of company arrangement — prescribed provisions [see Note 2] 258

Schedule 9 Authorised trustee corporations 265

Schedule 11 Recognised futures exchanges 268

Schedule 12 ASIC transitional standards 271

Introductory Chapter 1

Miscellaneous Part 1.0

Regulation 1.0.02

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, unless the contrary intention appears:

Act means the Corporations Act 2001.

ABN (Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

agent means a person appointed under subsection 601CG(1) of the Act.

Chapter 1 Introductory

Part 1.0 Miscellaneous

Regulation 1.0.03

approved form, in relation to a provision of the Act or of these Regulations, means the form that is approved under paragraph 350 (b) of the Act for use for that provision.

benefit fund has the meaning given by section 16B of the Life Insurance Act 1995.

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.

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.

superannuation scheme means a complying superannuation fund within the meaning of section 267 of the Income Tax Assessment Act 1936.

trustee in relation to a superannuation scheme, includes a person responsible for the administration and management of the scheme.

(3)  In these Regulations, a reference to a form by number is a reference to the form so numbered in Schedule 2.

1.0.03 Approved and prescribed forms

(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.

Introductory Chapter 1

Miscellaneous Part 1.0

Regulation 1.0.06

(2) In a form, unless the contrary intention appears, a reference to a Chapter, Part, Division, section, subsection, paragraph or subparagraph is a reference to that Chapter, Part, Division, section, subsection, paragraph or subparagraph of the Act.

1.0.04 Directions and instructions in forms

A form must be completed in accordance with the directions and instructions specified in the form.

1.0.05 Documents and information required by forms

(1) If a form requires:

(a) the lodging of a document; or

(b) the giving of information:

(i) by completing the form in the prescribed manner; or

(ii) by supplying or completing another document;

the document or information is taken to be the document or information required for the provision of the Act or of these Regulations for which the form is approved under paragraph 350 (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, except section 348 or 349, for which the form is approved under paragraph 350 (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.

1.0.06 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

Chapter 1 Introductory

Part 1.0 Miscellaneous

Regulation 1.0.07

 (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

(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) the ACN, ARBN or ARSN of the corporation or managed investment 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 ACN, ARBN or ARSN— its ABN; and

Introductory Chapter 1

Miscellaneous Part 1.0

Regulation 1.0.08

(ii) the name of the corporation or managed investment scheme; and

(iii) the title of the document; and

(iv) the section number of the Act under which the document is being lodged; and

(g) have the following information at the top left-hand of the first sheet:

(i) registered agent number (if any); and

(ii) lodging party or agent name; and

(iii) address; and

(iv) telephone number; and

(v) facsimile number (if any); and

(vi) DX number and applicable suburb or city (if any); and

(h) at the top right-hand of the first sheet, have a blank space that measures 35 millimetres from the top of the page and 65 millimetres from the right-hand side of the page; and

(j) if the document is a form relating to a no liability company, be completed by inserting the words ‘No Liability’ in place of the word ‘Limited’; and

(k) in the case of an unlimited company, have the word ‘Limited’ omitted; and

(l) if the document contains maps or charts on which areas have been distinguished by colour, also distinguish those areas by hatching, numbering or lettering.

1.0.08 Information to accompany financial documents lodged for financial years

A document lodged under subsection 319 (1) of the Act for a financial year must be accompanied by the approved form setting out the following information:

(a) if the disclosing entity is a company:

(i) the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

(ii) the dates on which the financial year to which the document relates begins and ends; and

Chapter 1 Introductory

Part 1.0 Miscellaneous

Regulation 1.0.09

(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:

(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

Introductory Chapter 1

Miscellaneous Part 1.0

Regulation 1.0.10

(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

(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

Chapter 1 Introductory

Part 1.0 Miscellaneous

Regulation 1.0.11

(iii) a statement of certification in accordance with regulation 1.0.16.

1.0.11 Certain documents to be signed by personal representatives etc

Unless these Regulations state otherwise, a document relating to a corporation that is a proprietary company to which section 201F of the Act applies that does not have a director or secretary must be signed by the personal representative or trustee mentioned in that section.

1.0.12 Form of notice of resolution

A copy of a resolution lodged under subsection 136 (5), 157 (2), 162 (3), 246F (3), 254H (4), 254N (2), 256C (3), 260B (7), 461 (2), 491 (2), 506 (1B), 507 (11) or 510 (1A) of the Act must be set out in, or annexed to, a notice in accordance with the approved form.

1.0.13 Time for lodging documents

If:

(a) a document must be lodged; and

(b) the period within which the document must be lodged is not prescribed;

the document must be lodged:

(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;

Introductory Chapter 1

Miscellaneous Part 1.0

Regulation 1.0.17

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.

(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.

Chapter 1 Introductory

Part 1.0 Miscellaneous

Regulation 1.0.18

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) paragraph (c) of the definition of associate in section 9.

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) section 484; 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.

Introductory Chapter 1

Miscellaneous Part 1.0

Regulation 1.1.01

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.

Chapter 1 Introductory

Part 1.2 Interpretation

Division 1 Share ratio contracts

Regulation 1.2.01

Part 1.2 Interpretation

Division 1 Share ratio contracts

Subdivision A Preliminary

1.2.01 What is a share ratio contract?

(1) For the purposes of this Part, a share ratio contract is an agreement under which:

(a) a particular person will be under an obligation to pay, or will have a right to receive, an amount of money; and

(b) whether the obligation or right exists will depend on a state of affairs at a future time, where:

(i) the future time is worked out in accordance with the agreement; and

(ii) the state of affairs includes, in particular, a state of affairs relating to fluctuations in the relevant ratio; and

(c) the amount will be calculated in a manner specified in accordance with the agreement by reference to that state of affairs;

whether or not the agreement:

(d) has any other effect; or

(e) may be varied or discharged before that future time.

(2) For subparagraph (1) (b) (ii), a relevant ratio is worked out in accordance with the ratio:

P : N

where:

P is the price or value of a particular share listed for quotation on the Exchange, expressed in cents; and

Introductory Chapter 1

Interpretation Part 1.2

Share ratio contracts Division 1

Regulation 1.2.03

N is the relevant level of 1 of the following indexes expressed as a number:

(a) the Australian Stock Exchange All Ordinaries Share Price Index;

(b) the Australian Stock Exchange Fifty Leaders Share Price Index;

(c) the Australian Stock Exchange Twenty Leaders Share Price Index;

(d) the Australian Stock Exchange All Industrials Share Price Index;

(e) the Australian Stock Exchange All Resources Share Price Index;

(f) the Australian Stock Exchange Gold Share Price Index.

Subdivision B Application of Chapters 6D and 7 of the Act to share ratio contracts

1.2.02 Relevant agreements — paragraph 92A (1) (b) of the Act

A share ratio contract is prescribed for paragraph 92A (1) (b) of the Act.

1.2.03 Application of Chapter 7 of the Act

(1) Subject to subregulation (2) and regulations 1.2.04, 1.2.05 and 1.2.06, Chapter 7 of the Act applies to share ratio contracts as if:

(a) the contracts were securities; and

(b) a reference to the sale of securities by a person were a reference to the disposal by the person of a share ratio contract; and

(c) a reference to the purchase of securities by a person were a reference to the person:

(i) entering into; or

Chapter 1 Introductory

Part 1.2 Interpretation

Division 1 Share ratio contracts

Regulation 1.2.03

(ii) taking an assignment of;

a share ratio contract (whether or not on behalf of another person).

Note This subregulation is made under subsection 92 A (2) of the Act.

(2) For paragraph (1) (b), a person disposes of a share ratio contract if the person takes, or causes to be taken, action that closes out the share ratio contract (whether the action is taken on behalf of that person or of another person).

(3) In this regulation:

bought position, in relation to a share ratio contract, means the position where, under the contract, a person has:

(a) if the value of the contract at a particular future time is less, by a particular amount, than the value of the contract at a particular earlier time — an obligation to pay that amount; and

(b) if the value of the contract at a particular future time is greater, by a particular amount, than the value of the contract at a particular earlier time — a right to receive that amount.

close out, in relation to a share ratio contract, means:

(a) discharge the obligations of the person in the bought position, or sold position, under the share ratio contract as a result of the matching up of the share ratio contract with a share ratio contract of the same kind under which the person has assumed an offsetting sold position, or offsetting bought position, as the case may be; or

(b) otherwise discharge the obligations of a party to the share ratio contract.

sold position, in relation to a share ratio contract, means the position where, under the contract, a person has:

(a) if the value of the contract at a particular future time is greater, by a particular amount, than the value of the contract at a particular earlier time — an obligation to pay that amount; and

Introductory Chapter 1

Interpretation Part 1.2

Share ratio contracts Division 1

Regulation 1.2.07

(b) if the value of the contract at a particular future time is less, by a particular amount, than the value of the contract at a particular earlier time— a right to receive that amount.

1.2.04 Application of Division 2A of Part 7.11 of the Act to share ratio contracts

Division 2A of Part 7.11 of the Act applies to a share ratio contract as if:

(a) the definition of securities were omitted from subsection 1002A (1) of the Act; and

(b) the contract were securities of a body corporate, where the shares of that body corporate are the shares to which the contract relates.

1.2.05 Application of certain provisions of Chapter 7 of the Act to share ratio contracts

Sections 997, 1001 and 1013 of the Act apply to a share ratio contract as if the contract were securities of a body corporate, where the shares of that body corporate are the shares to which the contract relates.

1.2.06 Application of Chapters 6D and 7 of the Act

(1) Chapter 6D of the Act does not apply to a share ratio contract.

(2) The following provisions of Chapter 7 of the Act do not apply to a share ratio contract:

(a) sections 775, 842, 843 and 844;

(b) Division 2 of Part 7.4;

(c) Part 7.13.

1.2.07 Restrictions on dealers in share ratio contracts

(1) In this regulation and in regulation 1.2.08:

deal, in relation to share ratio contracts, has the meaning that it has under section 9 of the Act as if the contracts were securities.

Chapter 1 Introductory

Part 1.2 Interpretation

Division 1 Share ratio contracts

Regulation 1.2.08

(2) The holder of a dealers licence may deal in a share ratio contract on behalf of another person only if:

(a) the holder:

(i) is a member of the Exchange; or

(ii) holds a futures brokers licence; or

(b) ASIC approves, in writing, the holder to deal in those contracts; or

(c) subject to regulation 1.2.09, regulation 8.3.02 applies to the dealing in the contract.

Note The terms dealers licence and futures brokers licence are defined in section 9 of the Act.

1.2.08 Restrictions on securities licensees in providing investment advice in relation to share ratio contracts

The holder of a securities licence may:

(a) carry on an investment advice business in relation to a share ratio contract; or

(b) hold himself or herself out as an investment adviser in relation to a share ratio contract;

only if:

(c) the holder:

(i) is a member of the Exchange; or

(ii) holds a futures brokers licence or futures advisers licence; or

(d) ASIC approves, in writing, the holder to carry on that business, or hold himself or herself out as an investment adviser, in relation to that contract; or

(e) subject to regulation 1.2.09, regulation 8.3.02 applies to the dealing in the contract to which the business, or the holding out as an adviser, relates.

Note The terms futures advisers licence, futures brokers licence, investment advice business, investment adviser and securities licence are defined in section 9 of the Act.

Introductory Chapter 1

Interpretation Part 1.2

Share ratio contracts Division 1

Regulation 1.2.10

Subdivision C  Application of Chapter 8 of the Act to share ratio contracts

1.2.09 Application of Part 8.3 for certain purposes

For paragraphs 1.2.07 (2) (c) and 1.2.08 (e), Part 8.3 of the Act is taken to apply to a dealing in a share ratio contract, being a dealing of a kind mentioned in either of those paragraphs, as if a reference to a futures brokers licence in subparagraph 8.3.02 (2) (a) (ii), (d) (iv), (e) (iii) or (f) (ii) of these Regulations were a reference to a dealers licence.

Note The terms dealers licence and futures brokers licence are defined in section 9 of the Act.

1.2.10 Application of Chapter 8 of the Act

(1) Chapter 8 of the Act, other than the following provisions of that Chapter, does not apply to a share ratio contract:

(a) subject to subregulation (2) — sections 1137, 1138, 1205 to 1208 and 1210;

(b) Part 8.7 (except sections 1258 and 1267).

Note This subregulation is made under subsection 92A (2) of the Act.

(2) For paragraph (1) (a):

(a) section 1207 applies as if paragraph 1207 (1) (a) were omitted; and

(b) section 1210 applies as if the words ‘in the prescribed form’ (in subparagraph 1210 (a) (iii)) were omitted.

(3) The provisions of Chapter 8 of the Act specified in paragraphs (1) (a) and (b) apply to a dealing in a share ratio contract as if:

(a) a reference to a futures advice business were a reference to an investment advice business; and

(b) a reference to a futures broker were a reference to a dealer; and

(c) a reference to a futures exchange were a reference to a local stock exchange or an approved securities organisation; and

(d) a reference to a futures market were a reference to a stock market; and

Chapter 1 Introductory

Part 1.2 Interpretation

Division 2 Deliverable bond futures contracts

Regulation 1.2.11

(e) a reference to a clearing house for a futures market or a futures exchange were a reference to a body corporate that provides facilities for the registration of share ratio contracts acquired, or disposed of, on a stock market of a securities exchange.

Subdivision D  Miscellaneous

1.2.11 Subsection 93 (7) of the Act not to apply in certain circumstances

Subsection 93 (7) of the Act does not apply, in relation to a share ratio contract, to a person who does an act that constitutes, or does acts that together constitute, a dealing in the contract.

Note This regulation is made under subsection 92A (2) of the Act.

Division 2 Deliverable bond futures contracts

Subdivision A Preliminary

1.2.12 What is a deliverable bond futures contract?

(1) For the purposes of this Division, a deliverable bond futures contract is a standardised agreement under which a person has a Chapter 8 obligation to transfer, or to accept a transfer of, a particular quantity of 3 year, or 10 year, Treasury bonds or a chose in action representing the bonds:

(a) at a particular future time; and

(b) for a particular price, or a price to be calculated in a particular manner.

(2) An agreement is a deliverable bond futures contract:

(a) whether or not the subject matter of the agreement is in existence; and

(b) whether or not the agreement has any other effect; and

(c) whether or not the agreement is capable of being varied or discharged before that future time; and

Introductory Chapter 1

Interpretation Part 1.2

Futures options over deliverable bond futures contracts Division 2

Regulation 1.2.13

(d) if it appears likely at the time the agreement is entered into, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the agreement), that:

(i) the Chapter 8 obligation of the person in the sold position under the agreement to transfer bonds in accordance with that agreement will be discharged otherwise than by the person effecting the transfer; or

(ii) the Chapter 8 obligation of the person in the bought position under the agreement to accept transfer of the bonds in accordance with that agreement will be discharged otherwise than by the person accepting the transfer; or

(iii) the person in the sold position, or bought position, under the agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under another agreement of the same kind; and

(e) whether the Chapter 8 obligation of a person in the sold position under the agreement to transfer bonds in accordance with that agreement is discharged by that person, or another person, effecting the transfer; and

(f) whether or not the Chapter 8 obligation mentioned in paragraph (e) is discharged by the novation of a chose in action; and

(g) whether or not a person in the bought position under the agreement receives a proprietary interest in a particular bond.

Subdivision B Application of Chapters 6D and 7 of the Act to deliverable bond futures contracts

1.2.13 Prescribed Chapter 8 agreement

A deliverable bond futures contract is prescribed for paragraph 72A (1) (b) of the Act.

Chapter 1 Introductory

Part 1.2 Interpretation

Division 2 Deliverable bond futures contracts

Regulation 1.2.14

1.2.14 Application of Chapters 6D and 7 of the Act

Chapters 6D and 7 of the Act do not apply to a deliverable bond futures contract.

Subdivision C Application of Chapter 8 of the Act to deliverable bond futures contracts

1.2.15 Application of Chapter 8 of the Act

(1) Subject to subregulation (2), Chapter 8 of the Act applies in relation to a deliverable bond futures contract as if it were a futures contract.

(2) If a member of the Reserve Bank Information and Transfer System (known as RITS) transfers bonds which are the subject of a deliverable bond futures contract then, for the purposes of that transfer, Part 8.3 and sections 1206, 1207, 1209, 1210, 1234 and 1235 of the Act do not apply to that member.

Subdivision D Modifications of the Act applying in relation to deliverable bond futures contracts

1.2.16 Modification of section 9 of the Act

Section 9 of the Act is modified in relation to its application to deliverable bond futures contracts:

(a) by omitting the definition of bought position and substituting:

bought position, in relation to a deliverable bond futures contract, means the position where, under the contract, a person has a Chapter 8 obligation to accept a transfer of a particular quantity of 3 year, or 10 year, Treasury bonds, or a chose in action representing the bonds, in accordance with the contract; and

(b) by omitting the definition of sold position and substituting:

sold position, in relation to a deliverable bond futures contract, means the position where, under the contract, a

Introductory Chapter 1

Interpretation Part 1.2

Futures options over deliverable bond futures contracts Division 3

Regulation 1.2.19

person has a Chapter 8 obligation to transfer a particular quantity of 3 year, or 10 year, Treasury bonds, or a chose in action representing the bonds, in accordance with the contract.

Note For the definitions of other terms used in this Division, see section 9 of the Act.

Division 3 Futures options over deliverable bond futures contracts

Subdivision A Preliminary

1.2.17 What is a futures option over a deliverable bond futures contract?

For the purposes of this Division:

(a) a futures option over a deliverable bond futures contract is an option, or a Chapter 8 right, to assume a bought position, or a sold position, in relation to the contract:

(i) at a specified price or value; and

(ii) within a specified period; and

(b) deliverable bond futures contract has the same meaning as in Division 2 of this Part.

Subdivision B Application of Chapters 6D and 7 of the Act to futures options over deliverable bond futures contracts

1.2.18 Prescribed Chapter 8 agreement

A futures option over a deliverable bond futures contract is prescribed for paragraph 72A (1) (b) of the Act.

1.2.19 Application of Chapters 6D and 7 of the Act

Chapters 6D and 7 of the Act do not apply to a futures option over a deliverable bond futures contract.

Chapter 1 Introductory

Part 1.2 Interpretation

Division 4 Deliverable share futures contracts

Regulation 1.2.20

Subdivision C Application of Chapter 8 of the Act to futures options over deliverable bond futures contracts

1.2.20 Application of Chapter 8 of the Act

Chapter 8 of the Act applies in relation to a futures option over a deliverable bond futures contract as if it were a futures contract.

Note For the definitions of terms used in this Division, see section 9 of the Act.

Division 4 Deliverable share futures contracts

Subdivision A Preliminary

1.2.21 What is a deliverable share futures contract?

(1) For the purposes of this Division, a deliverable share futures contract is a standardised agreement under which a person has a Chapter 8 obligation to transfer, or to accept a transfer of, a particular quantity of shares of a listed corporation:

(a) at a particular future time; and

(b) for a particular price, or a price to be calculated in a particular manner.

(2) An agreement is a deliverable share futures contract:

(a) whether or not the subject matter of the agreement is in existence; and

(b) whether or not the agreement has any other effect; and

(c) whether or not the agreement is capable of being varied or discharged before that future time; and

Introductory Chapter 1

Interpretation Part 1.2

Deliverable share futures contracts Division 4

Regulation 1.2.23

(d) if it appears likely at the time the agreement is entered into, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the agreement), that:

(i) the Chapter 8 obligation of the person in the sold position under the agreement to transfer shares in accordance with that agreement will be discharged otherwise than by the person effecting the transfer; or

(ii) the Chapter 8 obligation of the person in the bought position under the agreement to accept transfer of the shares in accordance with that agreement will be discharged otherwise than by the person accepting the transfer; or

(iii) the person in the sold position, or bought position, under the agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under another agreement of the same kind; and

(e) whether the Chapter 8 obligation of a person in the sold position under the agreement to transfer shares in accordance with that agreement is discharged by that person, or another person, effecting the transfer.

Subdivision B Application of Chapters 6D and 7 of the Act to deliverable share futures contracts

1.2.22 Prescribed Chapter 8 agreement

A deliverable share futures contract is prescribed for paragraph 72A (1) (b) of the Act.

1.2.23 Application of Chapters 6D and 7 of the Act

(1) Chapter 6D of the Act does not apply to a deliverable share natures contract.

Chapter 1 Introductory

Part 1.2 Interpretation

Division 4 Deliverable share futures contracts

Regulation 1.2.24

(2) Chapter 7 of the Act, except Part 7.2A, subsection 979 (1) (as modified by regulation 1.2.26), sections 995 and 998, Division 2A of Part 7.11, Part 7.13 and section 1114, does not apply to a deliverable share futures contract.

(3) However, Part 7.10 of the Act applies if a claim does not relate directly to a transfer of shares between the person in the bought position and the person in the sold position under a deliverable share futures contract.

Note For example, it is intended that if a dealer fraudulently or negligently uses shares held for a client to settle another client’s deliverable share futures contract, the first-mentioned client may make a claim under Part 7.10.

Subdivision C Application of Chapter 8 of the Act to deliverable share futures contracts

1.2.24 Application of Chapter 8 of the Act

(1) Subject to subregulation (2), Chapter 8 of the Act applies in relation to a deliverable share futures contract as if it were a futures contract.

(2) Where a SCH participant deals in shares which are the subject of a deliverable share futures contract then, for the purposes of that dealing, Part 8.3 and sections 1206, 1207, 1209, 1210, 1234 and 1235 of the Act do not apply to that participant.

Subdivision D Modifications of the Act applying in relation to deliverable share futures contracts

1.2.25 Modification of section 9 of the Act

Section 9 of the Act is modified in relation to its application to deliverable share futures contracts:

(a) by omitting the definition of bought position and substituting:

‘bought position, in relation to a deliverable share futures contract, means the position where, under the contract, a

Introductory Chapter 1

Interpretation Part 1.2

Futures options over deliverable share futures contracts Division 5

Regulation 1.2.28

person has a Chapter 8 obligation to accept a transfer of shares in accordance with the contract;’; and

(b) by omitting the definition of sold position and substituting:

‘sold position, in relation to a deliverable share futures contract, means the position where, under the contract, a person has a Chapter 8 obligation to transfer shares in accordance with the contract;’.

1.2.26 Modification of subsection 979 (1) of the Act

Subsection 979 (1) of the Act is modified, in its application to a deliverable share futures contract, by omitting all words after ‘The Board may’ and substituting ‘seek the assistance of the Sydney Futures Exchange to determine whether a claim against SEGC relates to a deliverable share futures contract.’.

1.2.27 Modification of Division 1 of Part 8.7 of the Act

In spite of section 1251 of the Act, for sections 1252 to 1257 (inclusive) of the Act, a deliverable share futures contract concerns a body corporate if the contract relates to shares of the body corporate.

Note For the definitions of other terms used in this Division, see section 9 of the Act.

Division 5 Futures options over deliverable share futures contracts

Subdivision A Preliminary

1.2.28 What is a futures option over a deliverable share futures contract?

For the purposes of this Division:

(a) a futures option over a deliverable share futures contract is an option, or a Chapter 8 right, to assume a bought position, or a sold position, in relation to the contract:

(i) at a specified price or value; and

Chapter 1 Introductory

Part 1.2 Interpretation

Division 5 Futures options over deliverable share futures contracts

Regulation 1.2.29

(ii) within a specified period; and

(b) deliverable share futures contract has the same meaning as in Division 4 of this Part.

Subdivision B Application of Chapters 6D and 7 of the Act to futures options over deliverable share futures contracts

1.2.29 Prescribed Chapter 8 agreement

A futures option over a deliverable share futures contract is prescribed for paragraph 72 A (1) (b) of the Act.

1.2.30 Application of Chapters 6D and 7 of the Act

(1) Chapter 6D of the Act does not apply to a futures option over a deliverable share futures contract.

(2) Chapter 7, except Division 2 A of Part 7.11, of the Act does not apply to a futures option over a deliverable share futures contract.

Subdivision C Application of Chapter 8 of the Act to futures options over deliverable share futures contracts

1.2.31 Application of Chapter 8 of the Act

Chapter 8 of the Act applies in relation to a futures option over a deliverable share futures contract as if it were a futures contract.

Subdivision D Modifications of the Act applying in relation to futures options over deliverable share futures contracts

1.2.32 Modification of Division 1 of Part 8.7 of the Act

In spite of section 1251 of the Act, for sections 1252 to 1257 (inclusive) of the Act, a futures option over a deliverable share

Introductory Chapter 1

Interpretation Part 1.2

Futures options over deliverable share futures contracts Division 5

Regulation 1.2.32

futures contract concerns a body corporate if the contract relates to shares of the body corporate.

Note For the definitions of terms used in this Division, see section 9 of the Act.

Chapter 1 Introductory

Part 1.2A Disclosing entities

Regulation 1.2A.01

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

Introductory Chapter 1

Disclosing entities Part 1.2A

Regulation 1.2A.02

time, or as soon as practicable after, they are given to those other persons; and

(f) in relation to the issue — the company complies with all legislative and stock exchange requirements in the place in which is located;

(i) the approved foreign exchange; or

(ii) if more than one — the principal approved exchange;

on which the company’s securities are quoted.

(2) In this regulation:

approved foreign exchange includes:

(a) American Stock Exchange Inc.;

(b) New York Stock Exchange Inc.;

(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:

(a) all holders of a class of securities of a foreign company; or

Chapter 1 Introductory

Part 1.2A Disclosing entities

Regulation 1.2A.03

(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.

Registration of companies Chapter 2A

Disclosing entities Part 1.2A

Regulation 2A.2.01

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

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:

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.

Chapter 2A Registration of companies

Part 1.2A Disclosing entities

Regulation 2A.2.02

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(l), apply on their behalf to the Court under that subregulation.

(3) The Court may order the special resolution to be set aside if the Court is satisfied that it would unfairly prejudice the applicant or applicants if the State or Territory in which the company is taken to be registered were changed in accordance with the resolution.

(4) The company must give ASIC a copy of the Court order within 14 days after the day on which it is made.

2A.2.03 Application for change of place of registration

(1) A company may, in accordance with a special resolution of the company, apply to ASIC for a change in the State or Territory in this jurisdiction in which the company is taken to be registered,

(2) The application must be in accordance with the approved form.

2A.2.04 Change of place of registration

(1) On application under regulation 2A.2.03, ASIC must alter the details of the company’s registration to show the change in the State or Territory in this jurisdiction in which the company is taken to be registered if:

(a) the company has passed a special resolution approving the application for the change; and

(b) the Court has not made an order setting aside the special resolution; and

Registration of companies Chapter 2A

Disclosing entities Part 1.2A

Regulation 2A.2.04

(c) the relevant Minister of the State or Territory in which the company is taken to be registered has approved the change under subparagraph 119A (3) (a) (i) of the Act; and

(d) ASIC is not aware of any other reason why the change should not be made.

(2) ASIC must not alter details of the company’s registration until 28 days after the day on which the application was made.

(3) ASIC must give the company a new certificate of registration after it alters details of the company’s registration.

Chapter 2B Basic features of a company

Part 2B.6 Names

Regulation 2B.6.01

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.

Basic features of a company Chapter 2B

Names Part 2B.6

Regulation 2B.6.03

(2) In paragraph (1) (b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

(a) as part of another word or expression; or

(b) in combination with other words or letters, or other symbols.

(3) However, this regulation does not apply to use of the letters ADI as part of another word.

Example

The letters adi appear in the word traditional. This regulation does not apply to use of the word traditional.

(4) If an item in Part 4 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the Minister who is specified in the item.

(5) If an item in Part 5 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

2B.6.03 Exemptions from requirement to set out name and ACN on certain documents (Act s 155)

For section 155 of the Act, the exemptions provided for in Schedule 7 apply in relation to the requirements of subsection 153 (2) of the Act.

Chapter 2C Registers

Regulation 2C.1.01

Chapter 2C Registers

2C.1.01 Securities exchange (Act s 170 (3))

For subsection 170 (3) of the Act, securities exchange means one of the following:

(a) Australian Stock Exchange Limited;

(b) The Ballarat Stock Exchange;

(c) The Bendigo Stock Exchange;

(d) The Stock Exchange of Newcastle Limited.

2C.1.02 Form of notice (Act s 172 (2))

A notice to be lodged under subsection 172 (2) of the Act must be in the approved form.

Officers Chapter 2D

Regulation 2D.1.02

Chapter 2D Officers

2D.1.02 Securities exchange (Act s 205G)

For subsection 205G (1) of the Act, securities exchange means one of the following:

(a) Australian Stock Exchange Limited;

(b) The Bendigo Stock Exchange;

(c) The Stock Exchange of Newcastle Limited.

Chapter 2K Charges

Part 2K.2 Registration

Regulation 2K.2.01

Chapter 2K Charges

Part 2K.2 Registration

2K.2.01 Lien or charge on crop, wool or stock mortgage that is a registrable security: prescribed law

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

VICTORIA

Parts VII and VIII of the Instruments Act 1958

QUEENSLAND

Part II (being provisions that apply in relation to registration of instruments that are stock mortgages, liens upon crops and liens on wool) and Part IV (other than section 24) of the Bills of Sale and Other Instruments Act 1955

The Liens on Crops of Sugar Cane Act 1931

WESTERN AUSTRALIA

Sections 7 and 8 and Parts IX, X and XI of the Bills of Sale Act 1899

SOUTH AUSTRALIA

Liens on Fruit Act, 1923

Stock Mortgages and Wool Liens Act, 1924

TASMANIA

Sections 36 of the Bills of Sale Act 1900

Stock, Wool and Crop Mortgages Act 1930

Charge Chapter 2K

Registration Part 2K.2

Regulation 2K.2.02

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.

Chapter 2M Financial reports and audit

Chapter 2M Financial reports and audit

Financial reports and audit Chapter 2M

Auditor Part 2M.4

Regulation 2M.4.01

Part 2M.4 Auditor

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.

Chapter 2M Financial reports and audit

Part 2M.6 Modification of the operation of Chapter 2M of the Act

Regulation 2M.6.01

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.6.03 Financial reporting — Australian banks and life offices

The operation of Chapter 2M of the Act in relation to financial reporting in respect of Australian banks and life offices is modified in accordance with Schedule 5A.

External administration Chapter 5

Arrangements and reconstructions Part 5.1

Regulation 5.1.01

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

Chapter 5 External administration

Part 5.1 Arrangements and reconstructions

Regulation 5.1.02

a trustee to be held on behalf of a unit holder of the trust;

state the matters set out and have annexed to it the documents and, if the trustee of that business operates no other business in relation to that trust, the reports mentioned, in Part 4 of Schedule 8.

(2) For the purposes of Schedule 8, securities exchange means Australian Stock Exchange Limited.

5.1.02 Giving notice under subsection 414 (2) or (9) of the Act

A notice under subsection 414 (2) or (9) of the Act must be given to a person:

(a) by personal delivery; or

(b) by prepaid post to the person’s address shown in the books of the transferor company.

External administration Chapter 5

Receivers, and other controllers, of corporations Part 5.2

Regulation 5.2.01

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.

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

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 before the end of the next business day after the appointment.

External administration Chapter 5

       Administration of a company’s affairs with a view to executing a deed of Part 5.3A

           company arrangement

Regulation 5.3A.07

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 14 days after a change in the location of the administrator’s office, lodge notice of the change.

5.3A.05 Administrator’s notice to owner or lessor of property — how given

A notice under subsection 443B (3) of the Act must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner’s or lessor’s usual place of residence or business or the place of residence or business last known to the administrator.

5.3A.06 Provisions included in deed of company arrangement

For subsection 444A (5) of the Act, the prescribed provisions are those set out in Schedule 8A.

5.3A.07 Administrator becomes liquidator — additional cases

(1) For subsection 446B (1) of the Act, a company that has executed a deed of company arrangement is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:

(a) if the Court at a particular time makes an order under section 445D of the Act terminating the deed of company arrangement; or

(b) if the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up — if those circumstances exist at a particular time.

(2) The company is taken to have passed the special resolution:

(a) at the time mentioned in paragraph (1) (a) or (b), as the case may be; and

(b) without a declaration having been made and lodged under section 494 of the Act.

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

(3) Section 497 of the Act is taken to have been complied with in relation to the winding up.

(4) For subsection 499 (1) of the Act:

(a) the company is taken to have nominated the administrator of the deed of company arrangement to be liquidator for the purposes of the winding up; and

(b) the creditors are taken not to have nominated anyone.

(5) The liquidator must:

(a) within 7 days after the day on which the company is taken to have passed the resolution, lodge a written notice stating that the company is taken because of this regulation to have passed such a resolution and specifying that day; and

(b) cause a notice of that kind to be published, within 21 days after that day:

(i) in a national newspaper; or

(ii) in each State or Territory in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

(6) Section 482 of the Act applies in relation to the winding up as if it were a winding up in insolvency or by the Court.

Note Section 482 of the Act empowers the Court to stay or terminate a winding up and to give consequential directions.

(7) An application under section 482 of the Act as applying because of subregulation (6) may be made:

(a) despite subsection 499 (4) of the Act, by the company pursuant to a resolution of the board; or

(b) by the liquidator; or

(c) by a creditor; or

(d) by a contributory.

External administration Chapter 5

       Administration of a company’s affairs with a view to executing a deed of Part 5.3A

           company arrangement

Regulation 5.3A.09

5.3A.08 Publication of notice of failure to execute instrument of terms of deed

For paragraph 450C (b) of the Act, a notice under paragraph 450C (a) of the Act must be published:

(a) in a national newspaper; or

(b) in each State or Territory in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

5.3A.09 Publication of notice of termination of deed by creditors

For paragraph 450D (c) of the Act, a notice under paragraph 450D (a) of the Act must be published:

(a) in a national newspaper; or

(b) in each State or Territory in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

Chapter 5 External administration

Part 5.4 Winding up in insolvency

Regulation 5.4.01

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.

           External administration Chapter 5

            Winding up generally Part 5.6

Regulation 5.6.07

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

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.

5.6.07 Deposit of securities

A liquidator must deposit in the bank with which the liquidator’s general account was opened:

(a) the bills; and

(b) the notes; and

(c) any other securities;

payable to the company or the liquidator as soon as possible after they are received by the liquidator.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.08

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) All payments out of the liquidator’s general account must be made by cheque.

(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.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.12

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), 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; and

(b) a meeting of creditors of a company held under a deed of company arrangement.

(3) Regulations 5.6.12 to 5.6.36A do not apply to:

(a) a meeting of the directors of a company; or

(b) a meeting of the members of a company, other than a meeting mentioned in paragraph (2) (a); or

(c) if those regulations are inconsistent with a particular requirement of the Act, these Regulations or the rules — a meeting mentioned in paragraph (2) (a) or (b).

5.6.12 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

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.12

(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.

(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 14 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 14 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 by giving less than 14 days’ notice of the meeting in accordance with subregulations (1) and (2).

(6) The notice mentioned in subregulation (1) must be:

(a) if convening a meeting of creditors under subsection 496 (1) of the Act — in accordance with Form 521; or

(b) if convening a meeting of creditors under section 436E of the Act — in accordance with Form 529A; or

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.13

(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.

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

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.13B

(b) indicate that a person, or the proxy or attorney of a person, who wishes to participate in the meeting by telephone must give to the convenor, not later than the second-last working day before the day on which the meeting is to be held, a written statement setting out:

(i) the name of the person and of the proxy or attorney (if any); and

(ii) an address to which notices to the person, proxy or attorney may be sent; and

(iii) a telephone number at which the person, proxy or attorney may be contacted; and

(iv) any facsimile transmission number to which notices to the person, proxy or attorney may be sent; and

(c) indicate that a person, or the proxy or attorney of a person, who participates in the meeting by telephone must pay any costs incurred by the person, proxy or attorney in participating and is not entitled to be reimbursed for those costs from the assets of the company.

5.6.13B Persons, or their proxies or attorneys, participating by telephone

(1) If a person, or a person’s proxy or attorney, who wishes to participate in a meeting by means of telephone conference facilities, has given the convenor of the meeting a statement in accordance with regulation 5.6.13A, the convenor must take all reasonable steps to ensure that the person, or the person’s proxy or attorney, is contacted before the start of the meeting on the telephone number provided by that person.

(2) If the person, proxy or attorney is contacted, the convenor must take all reasonable steps to ensure that the person, proxy or attorney can hear the proceedings, and can be heard, by means of those facilities, so that the person, proxy or attorney can participate in the meeting.

(3) A person who, or whose proxy or attorney, participates in the meeting by telephone in accordance with this regulation is taken to be present in person at the meeting.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.15

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 7 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.

5.6.14A Advertisement of a meeting

The convenor of a meeting must advertise the meeting in each State, Territory and excluded Territory in which the company carries on business, or has carried on business at any time during the 2 years immediately before the day of the meeting, in a daily newspaper circulating generally in that State, Territory or excluded Territory.

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.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.16

(2) The costs of convening a meeting of a committee of inspection or a committee of creditors must be repaid out of the assets of the company to the person causing it to be convened if:

(a) the Court so orders; or

(b) the committee by resolution so directs.

5.6.16 Quorum

(1) Subject to subregulation (3), a meeting must not act for any purpose except:

(a) the election of a chairperson; and

(b) the proving of debts; and

(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.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.18

(5) A meeting convened under section 439A of the Act must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.

(6) The convenor of the meeting, or a person nominated by the convenor, must immediately give notice of the adjournment to the persons to whom notice of the meeting must be given under regulation 5.6.12.

(7) A meeting on the date and at the place to which the meeting is adjourned is not to be taken to be incompetent to act only because of a failure to comply with subregulation (6) unless the Court, on the application of the convenor of the meeting, or of a creditor or contributory, otherwise declares.

(8) If within 30 minutes after the time appointed for the adjourned meeting:

(a) a quorum is not present; or

(b) the meeting is not otherwise sufficiently constituted;

the adjourned meeting lapses.

5.6.17 Chairperson

(1) If a meeting is convened by:

(a) a liquidator; or

(b) a provisional liquidator; or

(c) an administrator of the company under administration or of a deed of company arrangement;

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

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.19

(b) with the consent of the meeting — may;

adjourn the meeting from time to time and from place to place.

(2) A meeting convened under section 439A of the Act must not be adjourned to a day that is more than 60 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

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.21

(d) lost;

on the voices.

(3) A declaration is conclusive evidence of the result to which it refers, without proof of the number or proportion of the votes recorded in favour of or against the resolution, unless a poll is demanded.

(4) A demand for a poll may be withdrawn.

(5) A vote taken at a joint meeting of creditors and members of a company must be decided on the voices.

(6) If a creditor of a company, by contract, surrenders or limits all or some of his or her rights to vote at a meeting of creditors, then the creditor must not vote except in accordance with the contract and any vote which is not in accordance with the contract will not be counted.

5.6.20 Taking a poll

(1) Subject to subregulation (2), if a poll is demanded:

(a) the manner in which it is to be taken; and

(b) the time at which it is to be taken; must be determined by the chairperson.

(2) A poll demanded on the election of a chairperson or on a question of adjournment must be taken at once.

5.6.21 Carrying of resolutions after a poll has been demanded at a meeting of creditors

(1) This regulation applies to a poll taken at a meeting of creditors.

(2) A resolution is carried if:

(a) a majority of the creditors voting (whether in person, by attorney or by proxy) vote in favour of the resolution; and

(b) the value of the debts owed by the corporation to those voting in favour of the resolution is more than half the total debts owed to all the creditors voting (whether in person, by proxy or by attorney).

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.22

(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) 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.

(5) In this regulation

creditor includes a debenture holder.

5.6.22 Carrying of resolution after a poll has been demanded at a meeting of contributories or members

(1) This regulation applies to a poll taken at a meeting of contributories or members.

(2) In counting the majority on a poll demanded on the question that a resolution be carried, regard must be made to:

(a) the number of votes cast for or against the resolution; and

(b) the number of votes to which each member is entitled by the Act or the articles of the company.

(3) The chairperson of the meeting has a casting vote in addition to his or her deliberative vote.

5.6.23 Creditors who may vote

(1) A person is not entitled to vote as a creditor at a meeting of creditors unless:

(a) his or her debt or claim has been admitted wholly or in part by the liquidator or administrator of a company under administration or of a deed of company arrangement; or

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.23

(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:

(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.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.24

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 meeting of creditors convened under Part 5.3A of the Act.

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 14 days after the decision.

5.6.27 Minutes of meeting

(1) The chairperson must, within the period specified in subregulation (6):

(a) cause minutes of the proceedings to be drawn up and entered in a record kept for the purpose; and

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.27

(b) sign the minutes after they have been entered in the record.

(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 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 (6).

(4) If the chairperson:

(a) dies without having signed the minutes as required by subregulation (1), or without having lodged a certified copy of the minutes as required by subregulation (3); or

(b) becomes incapable, whether through illness or other cause, of signing the minutes as required by subregulation (1), or of lodging a certified copy of the minutes as required by subregulation (3);

the convenor of the meeting, if he or she attended the meeting, or a creditor, member or contributory who attended the meeting, may sign the minutes as required by subregulation (1) and may certify and lodge a copy of the minutes as required by subregulation (3).

(5) The administrator of a company under administration or of a deed of company arrangement, after a meeting of creditors, must cause:

(a) the minutes; and

(b) the record of persons present at the meeting;

prepared in accordance with this regulation to be made available for inspection by creditors or members at the registered office or principal place of business of the company in this jurisdiction.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.28

(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 — 14 days after the end of the meeting.

5.6.28 Appointment of proxies

(1) A. person entitled to attend and vote at a meeting may appoint a natural person over the age of 18 years as his or her proxy to attend and vote at the meeting.

(2) Subject to subregulation (3) and to regulation 5.6.30, a proxy appointed under this regulation has the same right to speak and vote at the meeting as the person who appointed the proxy.

(3) A person claiming to be the proxy of a person entitled to attend and vote at a meeting is not entitled to speak or vote as proxy at the meeting (except in relation to the election of a chairperson) unless the instrument of appointment of the proxy, as required by regulation 5.6.29, or a facsimile copy of the instrument, 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.

5.6.29 Form of proxies

(1) The appointment of a person as a proxy must be by an instrument in accordance with Form 532.

(2) The person appointing the proxy must sign the instrument of proxy, or, if incapable of writing, attach his or her mark to it.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.31A

(3) The proxy of a person who is blind or incapable of writing must not be accepted unless:

(a) the person attaches his or her signature or mark to the instrument appointing the proxy after it has been completed; and

(b) 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.

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

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.

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.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.32

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

(1) Subject to subregulations (2) and (3), a person acting under:

(a) a general proxy; or

(b) a special proxy;

must not vote in favour of any resolution which would directly or indirectly place:

(c) the person; or

(d) the person’s partner; or

(e) 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.

(2) If a person holds a special proxy to vote for an application to the Court in favour of his or her appointment as liquidator, he or she may use the proxy and vote accordingly.

(3) If a person holds a special proxy to vote:

(a) in favour of his or her appointment as the administrator of a company under administration or of a deed of company arrangement; or

(b) against the termination of his or her appointment as the administrator of a company under administration or of a deed of company arrangement;

he or she may use the proxy and vote accordingly.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.36A

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

(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.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.37

(2) A failure by a person to comply with subregulation (1) will not invalidate the meeting or anything done at the meeting unless the Court, on the application of the convenor of the meeting or of a creditor, member or contributory, otherwise declares.

5.6.37 Establishing title to priority

Regulations 5.6.39 to 5.6.57 (inclusive) apply to the establishment of a title to priority as if it were a debt or claim.

5.6.39 Notice to submit particulars of debt or claim

(1) A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which a creditor may submit particulars of his or her debt or claim.

(2) A liquidator must, at least once, give notice in writing of the day fixed under subregulation (1) by advertising the date in a daily newspaper circulating generally in each State or Territory in which the company has its registered office or carries on business.

(3) An advertisement mentioned in subregulation (2) must be in accordance with Form 533.

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.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.43A

5.6.42 Discounts

In preparing a proof of debt or claim, a creditor must allow for all discounts for which an allowance would have been made if the company were not being wound up.

5.6.43 Periodical payments

(1) If rent or any other payment:

(a) falls due at stated times; and

(b) the relevant date is a time other than one of those times;

the person entitled to the rent or other payment may submit a proof of debt or claim for a proportionate part of the rent or other payment, up to the date of the winding up order or resolution, as if the rent or payment accrued from day to day.

(2) If the liquidator remains in control of premises rented to a company that is being wound up, subregulation (1) does not affect the right of the landlord of the premises to claim payment of rent by the company or the liquidator during the period of the company’s occupation or the liquidator’s control.

5.6.43A Debt or claim of uncertain value — appeal to Court

(1) An appeal to the Court under subsection 554A (3) of the Act must be made:

(a) within 21 days after the person aggrieved becomes aware of the liquidator’s estimate or, if the period is extended under subregulation (2), within the extended period; and

(b) in accordance with the rules.

(2) On application by the person aggrieved before or after the end of the period of 21 days mentioned in subregulation (1), the Court may extend the period within which an appeal must be made.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.44

5.6.44 Debt discount rate (Act s 554B)

The discount by which the amount payable on the future date is to be reduced under section 554B of the Act is 8% a year calculated from the declaration of the dividend to the time when the debt would have become payable according to the terms on which it was contracted.

5.6.45 Employees’ wages

(1) If the employees of a company make demands:

(a) for wages or salaries (whether or not earned wholly or in part by way of commission), whether or not payable to the employees for annual leave or long service leave; or

(b) for retrenchment payments;

one proof of debt or claim may be prepared and submitted on behalf of those employees.

(2) A proof of debt or claim prepared and submitted under subregulation(l):

(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.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.48

5.6.47 Admission of debt or claim without formal proof

(2) If a liquidator admits a debt or claim without formal proof, it is not necessary for the liquidator formally to admit the debt or claim in writing.

(3) If a creditor’s debt or claim has been admitted without formal proof, a notice of dividend is sufficient notice of the admission.

(4) A liquidator must not reject a debt or claim without:

(a) notifying the creditor of the grounds of the liquidator’s rejection; and

(b) requiring that a formal proof of debt or claim be submitted for that debt or claim.

5.6.48 Notice to creditors to submit formal proof

(1) A liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which creditors of the company whose debts or claims have not been admitted are formally to prove their debts or claims.

(2) A liquidator must give notice in writing of the day fixed under subregulation (1):

(a) by advertising the day, in each State, Territory and excluded Territory in which the company carried on business at any time during the 2 years immediately preceding the relevant date, in a daily newspaper circulating generally in the State, Territory or excluded Territory; and

(b) to every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and whose debt or claim has not been admitted.

(3) An advertisement mentioned in subregulation (2) must be in accordance with Form 534.

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.49

(4) A creditor of the company who fails to comply with a requirement of a liquidator under subregulation (1) is excluded:

(a) from the benefit of a distribution made before his or her debt or claim is admitted; and

(b) from objecting to that distribution.

5.6.49 Formal proof of debt or claim

(1) A debt or claim may be formally proved by delivering or sending by post a formal proof of debt or claim to the liquidator.

(2) A formal proof of debt or claim:

(a) that is prepared and submitted in accordance with regulation 5.6.45 — must be in accordance with Form 536; and

(b) in any other case — must be in accordance with Form 535.

5.6.50 Contents of formal proof of debt or claim

(1) A formal proof of debt or claim must:

(a) contain detailed particulars of the debt or claim sought to be proved; and

(b) in the case of a debt, include a statement of account; and

(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.

External administration Chapter 5

Winding up generally Part 5.6

Regulation 5.6.54

5.6.52 Liquidator to notify receipt of proof of debt or claim

If a liquidator is requested to do so by the person submitting a proof of debt or claim, the liquidator must notify that person of the receipt of the proof and whether or not it has been admitted under regulation 5.6.47.

5.6.53 Time for liquidator to deal with proofs

(1) A liquidator must, within:

(a) 28 days after receiving a request in writing from a creditor to do so; or

(b) if ASIC allows — any further period;

in writing:

(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.

(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

Chapter 5 External administration

Part 5.6 Winding up generally

Regulation 5.6.55

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.