ASIC Corporations (Amendment) Instrument 2020/1065

I, Grant Moodie, delegate of the Australian Securities and Investments Commission, make the following legislative instrument.

Date 9 December 2020

Grant Moodie

Contents

Part 1—Preliminary

1 Name of legislative instrument

2 Commencement

3 Authority

4 Schedules

Schedule 1—Amendments

ASIC Class Order [CO 14/1252]

ASIC Corporations (Time-sharing Schemes) Instrument 2017/272

ASIC Corporations (Disclosure of Fees and Costs) Instrument 2019/1070

Part 1—Preliminary

1 Name of legislative instrument

This is the ASIC Corporations (Amendment) Instrument 2020/1065.

2 Commencement

This instrument commences on the later of the following:

(a) immediately after the commencement of ASIC Corporations (Amendment) Instrument 2020/1064;

(a) the day after it is registered on the Federal Register of Legislation.

Note: The register may be accessed at www.legislation.gov.au.

3 Authority

This instrument is made under subsection 1020F(1) of the Corporations Act 2001.

4 Schedules

Each instrument that is specified in a Schedule to this instrument is amended as set out in the applicable items in the Schedule.

Schedule 1—Amendments

ASIC Class Order [CO 14/1252]

1 After paragraph 12A

Insert:

12B. This instrument also does not apply to a Product Disclosure Statement covered by section 8C of ASIC Corporations (Time-sharing Schemes) Instrument 2017/272.

2 After paragraph 14

Insert:

14A. This instrument also does not apply to a periodic statement covered by section 8C of ASIC Corporations (Time-sharing Schemes) Instrument 2017/272.

ASIC Corporations (Time-sharing Schemes) Instrument 2017/272

3 Section 4

Insert the following definition in the appropriate alphabetical order:

Regulations means Corporations Regulations 2001.

4 Part 3

After section 8B, insert:

8C Disclosure of fees and costs

Part 7.9 of the Regulations applies in relation to interests in a registered time-sharing scheme as if the provisions of that Part were modified or varied as follows:

(1) omit subregulation 7.9.16N(2) of the Regulations, substitute:

“(2) Subject to subregulation (3), the fees section of a Product Disclosure Statement for an interest in a registered time-sharing scheme must include:

(a) the applicable Purchase Price and Upfront Fees and Costs Summary set out in Division 1 of Part 2 of Schedule 10;

(b) the Fees and Costs Summary set out in Division 3 of Part 2 of Schedule 10;

(c) the Example of Annual Fees and Costs set out in Division 5 of Part 2 of Schedule 10;

(d) the applicable Cost of Product Information set out in Division 6A of Part 2 of Schedule 10;

(e) the boxed Consumer Advisory Warning set out in Division 7A of Part 2 of Schedule 10; and

(f) the Additional Explanation of Fees and Costs set out in Division 8 of Part 2 of Schedule 10.

(3) The responsible entity for the scheme may replace any of the following defined words or expressions used in Part 2 of Schedule 10 with a corresponding word or expression used by the responsible entity in relation to the scheme:

(a) allocation points-based program;

(b) interval-based program;

(c) PAYG membership;

(d) PAYG points;

(e) PAYG points-based program;

(f) point;

(g) point-based program.”;

(2) omit Schedule 10 to the Regulations, substitute:

Schedule 10—Disclosure of Fees and Other Costs

(regulations 7.9.16K – 7.9.16O)

Part 1—Interpretation

101 Definitions

In this Schedule:

accommodation usage fee means a fee or cost that a member of a registered time-sharing scheme may incur to use scheme accommodation in:

(a) the way that is disclosed in the Product Disclosure Statement for the scheme; or

(b) a way that a reasonable person would expect scheme accommodation could be used based on advertisements or other promotional material for the interest in the scheme;

but does not include a cost:

(c) that is prominently disclosed as an optional additional cost in a Product Disclosure Statement for the scheme; or

(d) that is paid or payable out of the levies for the scheme;

Example 1: Fees or costs for housekeeping or cleaning services that are usually charged to the member for accommodation bookings is an accommodation usage fee.

Example 2: The cost of membership of an exchange company that may be acquired if the member elects to become a member is not an accommodation usage fee.

allocation points-based program, in relation to a registered time-sharing scheme, means a points-based program where a person:

(a) becomes a member of the scheme by purchasing a specified number of points in relation to the scheme; and

(b) as a member of the scheme is entitled to be issued with a recurrent right to use scheme property in the form of a periodic allotment of points for:

(i) the duration of the scheme; or

(ii) a specified term of not less than 3 years.

budget means the estimated and itemised material expected income and expenditure for a scheme for a financial year or calendar year.

establishment fee means an amount paid or payable for the establishment of a person’s membership of a registered time-sharing scheme that is in addition to the purchase price for the interest in the scheme.

finance application fee means an amount paid or payable by an applicant to enter into a financing arrangement for an interest in a registered time-sharing scheme.

financing arrangement means an arrangement under which:

(a) financial accommodation is provided by a person in connection with an applicant’s acquisition of an interest in a registered time-sharing scheme; and

(b) the person who provides the financial accommodation is introduced to the applicant by the issuer or seller of the interest in the scheme or their associate.

fixed period, in relation to an interval-based program, means a specified period of time in a calendar year that is fixed for the same period each year.

floating period, in relation to an interval-based program, means a period of time between a range of dates.

Example:  A floating period during a specified season could allow members to request a booking for a week that falls within weeks 1–13 inclusive and weeks 40–52 inclusive.

high season, in relation to a registered time-sharing scheme, means that part of a year in which the accommodation provided by the scheme is typically in highest demand.

incidental fees means costs or amounts, other than accommodation usage fees, establishment fees, finance application fees, levies, ongoing financing costs and ongoing membership fees, that:

(a) are paid or payable in relation to an interest in a registered time-sharing scheme; and

(b) a reasonable person would consider are not material to a person’s decision to acquire, hold or dispose of an interest in the scheme.

Example: Direct debit dishonour fees.

interval-based program, in relation to a registered time-sharing scheme, means a scheme where members have the right to use property of the scheme for either a fixed period each calendar year or a floating period each calendar year.

Example:  An interval may be a week per calendar year.

levy, in relation to a registered time-sharing scheme, means an amount paid or payable by a member for

(a) the maintenance of scheme property;

(b) operating the scheme; and

(c) other services relating to the scheme.

ongoing financing costs means an amount paid or payable in relation to a financing arrangement, but excludes:

(a) any amount paid or payable as a result of the provider of the financing arrangement exercising their rights following an event of default or breach by the borrower under the financing arrangement; and

(b) the finance application fee.

ongoing membership fees means an amount required to be paid or payable by a member of a registered time-sharing scheme to the responsible entity or a nominee of the responsible entity as a requirement of being a member of the scheme and are not otherwise charged as levies.

PAYG membership, in relation to a registered time-sharing scheme, means a membership in a PAYG points-based program.

PAYG points, in relation to a registered time-sharing scheme, means pay-as-you-go points that:

(a) may only be purchased by a member of a PAYG points-based program; and

(b) may be used by the member to obtain the right to use property to which the scheme relates at the time the points are purchased.

PAYG points-based program, in relation to a registered time-sharing scheme, means a points-based program where a person:

(a) becomes a member of the scheme by purchasing a PAYG membership for a specified term of not less than 3 years; and

(b) as a PAYG member of the scheme is entitled to purchase PAYG points for the duration of that term.

point, in relation to a registered time-sharing scheme, means a unit of measurement of the amount payable for the use of the property to which the scheme relates.

points-based program, in relation to a registered time-sharing scheme, means a program where members of the scheme can use points to obtain the right to use property to which the scheme relates.

purchase price means the price paid to acquire an interest in a registered time-sharing scheme.

registered time-sharing scheme means a time-sharing scheme:

(a) registered in accordance with section 601ED of the Act; and

(b) that has not at any time been promoted by its operator as a means of generating a financial return other than by way of a rental pool.

rental pool, in relation to a time-sharing scheme, means an arrangement conducted by the operator of the scheme where members of the scheme authorise the operator to manage and rent to third parties the rights to use property under the scheme and to pool the rental income received for pro-rata distribution to each holder.

Part 2—Product Disclosure Statements: Fees and Costs Summaries, Additional Explanation of Fees and Costs, and Consumer Advisory Warning

Division 1—The Purchase Price and Upfront Fees and Costs Summary

201 Allocation points-based programs

What do you have to pay upfront?

Membership in an allocation points-based program entitles you to an [insert timeframe] allocation of points to use to stay at scheme accommodation. You can find information about the key features of different membership options and expiry dates of points at [insert page number(s)].

The table below shows the purchase price and upfront fees and costs to become a member for each membership option.

[If relevant] The table also shows the upfront fees you will be charged if you choose to enter into a financing arrangement facilitated by the responsible entity. You may choose to obtain your own financing which is subject to fees and costs not disclosed in this table.

Purchase Price and Upfront Fees and Costs Summary

1 This includes an establishment fee of [insert amount]. The proceeds from the purchase price will be paid to [insert details of payee(s)]. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)]. For information on the current price of purchasing additional points once you are a member, see [insert page number(s)].

2  [Insert this paragraph if relevant] The Additional amounts under financing arrangement includes an establishment fee of [insert amount], [insert name of any other fee and amount] and finance application fee of [insert amount] if you choose to enter into a financing arrangement facilitated by the responsible entity. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].

Accommodation Example

The following Accommodation Example is provided to help you understand how many points are required to stay at our most popular accommodation choice for one week during high season for our most popular membership option.

Note: This example is for illustrative purposes only and there is no guarantee that specific accommodation will be available for the dates used in the example. The number of points you will need to stay at particular scheme accommodation will depend on many factors including the location, facilities, duration of stay, time of year and the days of the week of a stay. You can find a full list of the number and value of points needed for each accommodation choice at [insert cross-reference to location of this information].You can find information about the key features of different membership options and expiry dates of points at [insert page number(s)].

202 PAYG points-based programs

What do you have to pay upfront for PAYG membership and to buy PAYG points?

[Insert membership option name] membership is a PAYG membership. Under this membership option you will need to pay the upfront PAYG membership cost and then buy PAYG points each time you want to stay at scheme accommodation for a specified term.

The Purchase Price and Upfront Fees and Costs Summary table below shows how many PAYG points are currently required under each of the PAYG membership options and how much this will cost to secure the following Accommodation Example.

Note: The Accommodation Example is used in the Purchase Price and Upfront Fees and Costs Summary below to help you understand what it will cost you to stay at our most popular accommodation choice for one week during the high season using [insert membership option name].

[Insert this paragraph if relevant] The table also shows you the upfront fees if you choose to enter into a financing arrangement facilitated by the responsible entity. You may choose to obtain your own financing which is subject to fees and costs not disclosed in this table.

You can find information about the key features of different membership options at [insert page number].

Purchase Price and Upfront Fees and Costs Summary

1 This includes an establishment fee of [insert amount]. The proceeds from the purchase price will be paid to [insert details of payee]. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].

2 [Insert paragraph if relevant] The Additional amounts under financing arrangement includes an establishment fee of [insert amount], [insert name of any other fee and amount] and finance application fee of [insert amount] if you choose to enter into a financing arrangement facilitated by the responsible entity. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].

3 The Accommodation Example used in this table is set out above and is provided to help you understand what it will cost you to stay at our most popular accommodation choice for one week during the high season for each PAYG membership option. This example is for illustrative purposes only and there is no guarantee that specific accommodation will be available for the dates used in the example. The number of PAYG points you will need to buy to stay at particular scheme accommodation might depend on many factors including the location, facilities, duration of stay, time of year and the days of the week of a stay. You can find a full list of the number and value of PAYG points currently needed for each accommodation choice at [insert cross-reference to location of this information].

203 Interval-based programs

What do you have to pay upfront?

This table shows you the cost to purchase a membership in the scheme for a fixed period or a floating period.

[Insert paragraph if relevant] The table also shows the upfront fees you will be charged if you choose to enter into a financing arrangement facilitated by the responsible entity. You may choose to obtain your own financing which is subject to costs not disclosed in this table.

Purchase Price and Upfront Fees and Costs Summary

1 This includes an establishment fee of [insert amount]. The proceeds from the purchase price will be paid to [insert details of payee]. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].]

2  [Insert paragraph if relevant] The Additional amounts under financing arrangement includes an establishment fee of [insert amount], [insert name of any other fee and amount] and finance application fee of [insert amount] if you choose to enter into a financing arrangement facilitated by the responsible entity. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)]

Division 2—How to fill in the Purchase Price and Upfront Fees and Costs Summary

204 The preamble

The material in the preamble to the template should only include matters that are relevant to the interest or class of interest offered under the Product Disclosure Statement.

Example 1: If an interval-based program is for a fixed period, remove references to floating periods.

Example 2: If a points-based program does not offer different membership options, remove the reference to different membership options.

Example 3: If a financing arrangement is not offered, the preamble should be modified by removing references to financing.

205 Presentation of amounts

(1) This clause and clauses 206, 207, 208, 210, 212, 214, 216, 218, 221, 223, 224, 225, 226, 227, and 229 are subject to regulations 7.9.15A, 7.9.15B and 7.9.15C.

(2) If a particular fee or cost is not charged, “nil”, “zero”, “0” or “not applicable” (if it would not be misleading) must be written in the relevant column opposite the type of fee or cost.

(3) If it is not possible to determine a single amount or percentage of a fee or cost, it may be written as a range of fees or costs.

(4) If the exact amount of a fee or cost paid or payable is not known, an amount that is a reasonable estimate of the amount attributable to the retail client must be shown.

(5) Any estimate used must be clearly designated as an estimate.

(6) If an amount or cost has a number of components, the amount of each component must be listed separately, except the Cost of Product Information amount, which must be listed as a single amount.

Example: Levies: 1.8% of the value of members points + $70 per year.

(7) A cost or amount paid or payable must include (as applicable) gross of:

(a) income tax and GST, after being reduced by any reduced input tax credits;

(b) stamp duty; and

(c) without adjustment in relation to:

(i) any tax deduction available to the responsible entity; or

(ii)  the extent to which any tax deduction may be passed on to members.

206 Allocation points-based programs

(1) Column 1 of the template must set out each membership option offered under the Product Disclosure Statement in a separate row.

(2) Opposite each membership option described in column 1, column 2 must set out:

(a) in column 2 subcolumn 1—the points or range of points required;

(b) in column 2 subcolumn 2—the price of each point; and

(c) in column 2 subcolumn 3—the total cost of the points inclusive of the establishment fee and any other fees payable in relation to the purchase of points.

(3) If there is no financing arrangement offered, column 3 and footnote 2 should be removed.

(4) If a financing arrangement is offered, column 3 must set out opposite each membership option described in column 1:

(a) in column 3 subcolumn 1—the total amount of any upfront finance costs related to obtaining finance facilitated by the responsible entity including any establishment fee, finance application fee and other fees payable in relation to the financing arrangement; and

(b) in column 3 sub column 2—the sum of the amounts in column 2 sub column 3, and column 3 sub column 1.

207 PAYG points-based programs

(1) Column 1 of the template must set out each membership option offered under the Product Disclosure Statement in a separate row.

(2) Column 2 must set out opposite each membership option described in column 1, the total purchase price of that membership option inclusive of any establishment fee and other fees payable in relation to the purchase of points.

(3) If there is no financing arrangement offered, column 3 and footnote 2 should be removed.

(4) If a financing arrangement is offered, column 3 must set out opposite each membership option described in column 1:

(a) in column 3 subcolumn 1—any upfront finance costs related to obtaining finance including any establishment fee, finance application fee and other fees payable in relation to the financing arrangement; and

(b) in column 3 subcolumn 2—the sum of the amounts in column 2, and column 3 subcolumn 1.

(5) Column 4 must set out the following information for the Accommodation Example opposite each membership option described in column 1:

(a) in column 4 subcolumn 1—the number of PAYG points needed;

(b) in column 4 subcolumn 2—the price of each PAYG point; and

(c) in column 4 subcolumn 3—the total cost of the PAYG points.

208 Interval-based programs

(1) Column 1 of the template must set out the week number(s) of the calendar year offered under the Product Disclosure Statement in a separate row.

(2) Column 2 of the template must set out the range of dates during the calendar year corresponding to the week number(s) in column 1.

(3) Column 3 must set out opposite the week number(s) described in column 1, the total purchase price inclusive of the establishment fee or other fees payable in relation to the purchase.

(4) If there is no financing arrangement offered, column 4 and footnote 2 should be removed.

(5) If a financing arrangement is offered, column 4 must set out opposite the week(s) described in column 1:

(a) in column 4 subcolumn 1—any upfront finance costs related to obtaining finance including any establishment fee, finance application fee and other fees payable in relation to the financing arrangement; and

(b) in column 4 subcolumn 2—the sum of the amounts in column 3 and column 4, subcolumn 1.

209 Accommodation example—points-based programs

(1) An accommodation example must be included for points-based programs.

(2) For an allocation points-based program, the accommodation example used must be the accommodation choice and week during the high season that was in the highest demand for members of the most common membership option in the 12-month period before the date of the Product Disclosure Statement.

(3) For a PAYG points-based program, the accommodation example used must be the accommodation choice and week during the high season that was in the highest demand for members of the PAYG points-program in the 12-month period before the date of the Product Disclosure Statement.

(4) If, at the date of the Product Disclosure Statement, no interests have been issued or sold to persons that are not associated with the responsible entity, the membership option must represent the membership option which the responsible entity reasonably believes will be the most common, and use an accommodation choice the responsible entity reasonably believes that members would typically choose.

Division 3—The Fees and Costs Summary

210 Fees and Costs Summary

Fees and other costs

As well as the cost of buying a membership in a registered time-sharing scheme, all members must pay levies and other ongoing fees and costs. You have to pay fees and costs even if you do not use your membership.

The table shows fees and costs that you may be charged for [insert membership option] which is the membership option held by the greatest number of members. Taxes are set out in another part of this document.

[Insert if relevant] Note: The cost of buying PAYG points needed to secure accommodation under the scheme is a separate cost and is not included in this table. The cost of PAYG points is shown at [insert cross-reference to Purchase Price and Upfront Fees and Costs Summary].

Some fees and costs such as transfer fees and forfeiture fees may be charged if these circumstances arise.

[Insert if relevant] The table includes the financing costs if you choose to enter into a financing arrangement facilitated by the responsible entity. The exact amount of financing costs will depend on your particular circumstances and will be disclosed separately by the person providing the financial accommodation. You may choose to obtain your own financing which is subject to fees and costs not disclosed in this table.

You should read all the information about fees and costs because it is important to understand the costs of your membership.

Fees and Costs Summary – [insert membership option]

1 It is important to understand that a failure to pay an amount owing (such as levies or financing costs) may result in you losing your membership, by forfeiting your interest in the scheme. You may not receive anything for the forfeited interest if this happens.

2 Special levies may also be payable in certain circumstances. For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].

3 One-off fees and costs may also be payable in certain circumstances—for example, if your timeshare is forfeited or transferred. [If there are other fees and costs, such as direct debit dishonour fees, include these.] For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].

4 [Insert a description of the accommodation usage fees] For further information, refer to the Additional Explanation of Fees and Costs at [insert page(s)].

5 Refer to section [insert section reference] of the Product Disclosure Statement for details of the circumstances where the responsible entity can forfeit a membership.

[Insert if relevant] How annual levies are calculated

[Insert if relevant] Annual levies
 

Division 4—How to fill in the Fees and Costs Summary

211 If there are no levies payable

If there are no levies payable, remove:

(a) in the preamble, all references to levies;

(b) in the Fees and Costs Summary table, the words “See description below “How annual levies are calculated” for the specific amount payable”;

(c) the heading “How annual levies are calculated” and the accompanying Annual levies table.

212 If there are levies payable

(1) Levies include amounts payable on a periodic and one-off basis (excluding special levies).

(2) If there are levies payable:

(a) in the Fees and Costs Summary table:

(i) the “Amount” and “How and when paid” columns must be based on the membership option held by the greatest number of members;

(ii) column 2 must set out the amount of the annual levy for the membership option;

(iii) if it is not possible to determine a single amount for the levies or a single number of points, column 2 must set out a range of amounts.

(b) in the Annual levies table:

(i) column 1 must set out the membership options available;

(ii) if the same levies are charged for all membership options, column 1 must state “All membership options”;

(iii) column 2 must set out the levy or range of levies payable opposite the membership option(s) described in column 1;

(iv) column 3 must set out opposite the membership option(s) described in column 1, the levies payable and how they are calculated.

Example 1:  The levy is your share of the total amount of levies budgeted to be raised based on the number of points and type of membership you have. For the first year of membership, the pro-rata proportion of the levy which relates to the remaining period of that calendar year will be due on 1 January of the following year.

Example 2:  A budget is calculated for the upcoming calendar year and divided into the number of weeks in the year. Members pay in proportion to the number of weeks their membership entitles them to use.

213 If there is no financing arrangement

If there is no financing arrangement offered, remove:

(a) in the preamble, references to financing; and

(b) in the Fees and Costs Summary table, the heading “Financing related fees and costs” and the information under that heading.

214 If there is a financing arrangement

If there is a financing arrangement offered, the amounts shown in the “Amounts” column in relation to financing fees and costs must be calculated on the basis of:

(a) borrowing the maximum portion of the total purchase price available;

(b) the maximum interest rate (where there is a range);

(c) the maximum loan term in relation to the interest rate specified in paragraph (b).

215 Accommodation Usage Fee

The accommodation usage fee is the amount the responsible entity knows or ought reasonably to know will be incurred:

(a) for points-based programs—based on the assumption that the member is a member of the most popular membership option and fully utilises all their points or purchases PAYG points to book at the most popular accommodation option in high season making bookings for at least one period during high season; and

(b) for an interval program—based on the most expensive interval.

216 Column 3 – How and when fees and costs are paid

Column 3 of the Fees and Costs Summary table must set out:

(a) how the amount is or will be incurred by a member; and

(b) when and how regularly the amounts will be incurred by a member.

217 Other material to be included in the summary—fees that are negotiable

(1)          The Fees and Costs Summary table must clearly indicate which fees are negotiable (for example, by stating in column 3 “The amount of this fee can be negotiated.”).

(2)          An indication that a fee or cost is negotiable must be cross-referenced to an explanation in the “Additional Explanation of Fees and Costs” part of the fees section of the Product Disclosure Statement.

Division 5 – Example of Annual Fees and Costs

218 Example of Annual Fees and Costs

Example of annual fees and costs

[Insert for an allocation and PAYG points-based programs] This table gives an example of the annual fees and costs if you hold and use a [insert membership option] over a 1-year period. You should use this table to compare this product with other time-sharing schemes.

[Insert for an interval-based scheme] This table shows how much you could be paying if you use a membership to provide a week of accommodation—with and without the option of finance. You should use this table to compare this product with other time-sharing schemes.

The table below is only an example and does not reflect the actual costs you will have to pay each year. The example does not take into account any increase in levies or increases in other ongoing costs that may occur. The responsible entity can increase the cost of levies by [insert percentage amount and timeframe]. You will have to pay these levies and ongoing costs every year of your membership, even if you do not use your membership.

[Insert if relevant] If financing is facilitated, the estimate assumes you borrowed the maximum portion of the total purchase price available at the maximum interest rate for the maximum loan term for that interest rate. Financing is at the discretion of the person providing the financial accommodation and may not be available.

If you do not pay the costs associated with holding your membership your interests may be forfeited and you may also be charged forfeiture fees of between $0 and $[insert amount].

1 Additional fees may apply

2 [If relevant] You need to buy PAYG points each time you want to stay at scheme accommodation. This example assumes that you purchase the number of PAYG points required under the membership option to stay at the most popular scheme accommodation for one week during high season.

3 The interest rate in the example is based on borrowing the maximum portion of the total purchase price available at the maximum interest rate available under a financing arrangement and the maximum loan term in relation to that interest rate. It assumes the amount borrowed is the maximum portion of the purchase price able to be financed. The interest rate is [insert percentage] p.a., loan term is [insert timeframe] years and amount borrowed is [insert amount]. The annual repayments during the loan include interest and the amount contributed towards the purchase price.

Division 6—How to fill in the Example of Annual Fees and Costs

219 Example of Annual Fees and Costs

The Example of Annual Fees and Costs must:

(a) contain fees and costs in accordance with the table in clause 218;

(b) be set out using the headings and the form in clause 218; and

(c) be included in the fees section of a Product Disclosure Statement, following the Fees and Costs Summary.

220 If there is no financing arrangement

If there is no financing arrangement offered, remove:

(a) in the preamble, references to financing;

(b) in the table:

(i) the subheading “Finance costs” and the information under this subheading; and

(ii) any other references to financing; and 

(c) footnote 3 to the table.

221 If there is a financing arrangement

If there is a financing arrangement offered:

(a) the interest rate in the example must be based on the maximum portion of the total purchase price available at the maximum interest rate available under a financing arrangement and the maximum loan term in relation to that interest rate offered, at the date of the Product Disclosure Statement; and

(b) the loan amount, interest rate and loan term must be set out in footnote 3 to the table.

222 Membership option

(1) For allocation points-based and PAYG points-based programs:

(a) the membership option must be the most common membership option purchased at the date of the Product Disclosure Statement; and

(b) if, at the date of the Product Disclosure Statement, no interests have been purchased by persons that are not associated with the responsible entity—the membership option must represent the membership option which the responsible entity reasonably believes will be the most common.

(2) For interval-based programs:

(a) the example of the week must be based on the interval purchased by the greatest number of persons not associated with the responsible entity during the 12-month period before the date of the Product Disclosure Statement;

(b) if no such purchases occurred during the 11-month period before the date of the Product Disclosure Statement—the example must be based on the interval owned by the greatest number of members who are not associated with the responsible entity; and

(c) if the responsible entity or its associates are the only members of the scheme—the example must be based on the interval the responsible entity reasonably expects will be purchased by the greatest number of persons not associated with the responsible entity.

223 Column 2 – Amounts

(1) If a range of annual fees and costs may be charged, the example must use the highest amount in that range.

(2) In relation to levies, the example must be based on the levies for the year in which the Product Disclosure Statement is dated.

Division 6A – Cost of Product Information

224 Allocation points-based programs

Cost of product for 1 year

The cost of product information gives a summary calculation of the cost of each membership option over a 1-year period. It is calculated using the same method as the Example of Annual Fees and Costs.

The cost of product information assumes you hold the number of points most commonly held in the membership option for the 1-year period.

You should use this figure to help compare this product and membership options with other time-sharing schemes and membership options.

225 PAYG points-based programs

Cost of product for 1 year

The cost of product information gives a summary calculation of the cost of each membership option over a 1-year period. It is calculated using the same method as the Example of Annual Fees and Costs.

The cost of product information assumes you hold the number of points most commonly held in the membership option for the 1-year period and that you purchase the maximum number of points required under the membership option to stay at the most popular scheme accommodation for one week during high season.

You should use this figure to help compare this product and membership options with other time-sharing schemes and membership options.

226 Interval-based programs

Cost of product for 1 year

The cost of product information gives a summary calculation of the cost of each fixed or floating period membership option over a 1-year period. It is calculated using the same method as the Example of Annual Fees and Costs.

The cost of product information assumes you have a membership entitling you to a week of accommodation during a 1-year period.

You should use this figure to help compare this product and membership options with other time-sharing schemes and membership options.

Division 6B – How to fill in the Cost of Product Information

227 Cost of Product Information

(1) The Cost of Product Information must:

(a) be included in the fees section of the Product Disclosure Statement, following the Example of Annual Fees and Costs;

(b) be set out using the headings and the form and contain fees and costs in accordance with the table in:

(i) clause 224 for allocation points-based programs;

(ii) clause 225 for PAYG points-based programs;

(iii) clause 226 for interval-based programs;

(c) set out each membership option offered under the Product Disclosure Statement in a separate row in the table;

(d) be calculated in accordance with the methods set out in the Example of Annual Fees and Costs.

(2) If interests in more than one program are offered under the Product Disclosure Statement (for example an allocation points-based program and a PAYG points-based program), the Product Disclosure Statement must contain a Cost of Product Information for each program.

(3) The Cost of Product Information is not required to be included in a Product Disclosure Statement if only one membership option is available under the Product Disclosure Statement and that membership option is included in the Product Disclosure Statement in the Example of Annual Fees and Costs in accordance with Division 5.

Division 7A – Consumer Advisory Warning

228 Consumer Advisory Warning

229 Where to place the Consumer Advisory Warning

The Consumer Advisory Warning must be located at the beginning of the fees section of the Product Disclosure Statement.

Division 8 — Additional Explanation of Fees and Costs

230 Matters to be included

The following information must be included under the heading “Additional Explanation of Fees and Costs” if it is relevant to the interests in the scheme offered under the Product Disclosure Statement:

Levies

(a) information about annual, special and any other kind of levies, including:

(i) the types of costs and expenses covered by each type of levy;

(ii) any interest or fees charged for late payment of levies;

(iii) what happens when a member does not pay levies by the due date;

(iv) when annual levies will be invoiced;

(v) if a special or other levy is proposed or reasonably anticipated to be charged in the future—an explanation of the purpose of the levy and the key assumptions underlying the purpose, and the anticipated or proposed date of invoicing;

(vi) a description of the circumstances in which any special and other levies can be charged, and how they would be calculated;

(vii) the total amount of all levies other than annual levies, invoiced for each year of the 3-year period before the date of the Product Disclosure Statement, with an explanation of their purpose;

(viii) if applicable, a statement about the responsible entity’s power to vary levies; and

(ix) how to obtain a copy of the scheme’s annual budget;

Suspension and forfeiture for non-payment

(b) information about suspension and forfeiture of a membership interest due to failure to pay levies or failure to pay other fees or costs, including any fees or costs that may be incurred in selling a forfeited membership that will be payable from the proceeds received from the sale of the forfeited membership;

Management fees

(c) information about the amount payable to the responsible entity or any delegate or associate of the responsible entity for managing the scheme, including:

(i) for allocation points-based and interval-based programs—the amount stated as a percentage of the annual operating budget of the scheme, with a worked example showing the amount in dollars per year for the membership option used in the Example of Annual Fees and Costs;

(ii) for a PAYG points-based program—details of how the amount is determined;

Application of purchase price monies

(d) information about how the purchase price is applied including any arrangements with and payments to an associate of the responsible entity;

Changes to fees and costs

(e) the following information about changes to the fees and costs, if applicable:

(i) information about the responsible entity’s right to vary the amount of the fees without the member’s consent;

(ii) any indexation arrangements that apply to fees and costs;

(iii) the period of advance notice to members required for variations to fees and costs; and

(iv) any limits on changes to fees and costs contained in the scheme’s constitution, and when those limits apply;

Other kinds of fees

(f) information about accommodation usage fees;

(g) information about fees for any additional services;

(h) information about any incidental fees;

(i) information about where to find details of the fees and costs of any optional programs offered to members;

(j) information about fees to transfer a membership;

Fees mentioned in the Summary tables

(k) the explanation of the fees mentioned in:

(i) footnotes 1 and 2 to the Purchase Price and Upfront Fees and Costs Summary table; and

(ii) footnotes 2, 3 and 4 to the Fees and Costs Summary table;

Tax

(l) a cross reference to the tax section of the Product Disclosure Statement;

(m) if the interest in the scheme is subject to tax—whether the benefit of any tax deduction is passed onto the member in the form of a reduced fee or cost;

Adviser remuneration

(n) an explanation of any adviser remuneration (including commissions) that forms part of any fee or cost in the Fees and Costs Summary table, including (if known to the responsible entity):

(i) the method of calculation of the remuneration;

(ii) the amounts or range of amounts;

(iii) whether the amounts are negotiable or rebatable; and

(iv) the way in which amounts may be negotiated or rebated;

Negotiable fees and flexible charging structures

(o) for fee or cost that is negotiable—contact details of the person or body with whom the fee or cost can be negotiated and the manner of negotiation;

(p) if the issuer has instituted a flexible charging structure—for each applicable fee, if known:

(i) any maximum, and when it would apply; and

(ii) any waiver, and when it would not apply;

Worked examples

(q) worked examples (if appropriate).

Part 3—Fees and costs in periodic statements

Division 1—Fees and costs

301 Total Fees and Costs

(1) The following text and the appropriate amounts, in dollars, must be displayed in a summary part of the periodic statement.

Total fees and costs you paid

$[insert relevant amount for member]

This amount includes all fees and costs of your membership during the period, excluding any fees and costs related to any financing arrangement.

(2) The “total fees and costs you paid” is the total of all the fees and costs disclosed in the periodic statement.

(3) The amount must be shown as a single total amount in dollars.

(4) For an interest in the scheme that is subject to tax—if a reduced fee or cost is disclosed in the periodic statement because of the benefit of any tax deduction, the fees and costs charged must include the part of the cost that reduced the disclosed fee or cost.

(5) Fees and costs associated with a financing arrangement obtained by the member to acquire their membership or PAYG points are not required to be disclosed in the periodic statement.

Division 2—Additional Explanations of Fees and Costs

302 Matters to be included

The following information must be included in the periodic statement under the heading “Additional explanation of fees and costs”, if it has not been included in another part of the periodic statement:

(a) details of incidental fees, such as cheque dishonour fees, that were incurred by the member during the period;

(b) details of any service fees that may have been incurred by the member during the period;

(c) where the member’s interest is sold as a result of forfeiture or hardship withdrawal—details of any amounts deducted from the proceeds of the sale; and

(c) for an interest in the scheme that is subject to tax—whether the benefit of any tax deduction has been passed onto the member in the form of a reduced fee or cost.

5 Part 4

At the end of the Part, insert:

11 Disclosure of fees and costs—application to Product Disclosure Statements

(1) The declaration in section 8C of this instrument applies to Product Disclosure Statements given on or after 30 September 2022.

Election by the responsible entity

(2) The responsible entity of a registered time-sharing scheme may, in accordance with subsection (3), elect to apply the declaration in section 8C of this instrument to a Product Disclosure Statement dated on or after 14 December 2020.

(3) The responsible entity elects to apply the declaration in section 8C of this instrument to a Product Disclosure Statement if the responsible entity makes a written record:

(a) that identifies the Product Disclosure Statements to which the election relates; and

(b) of the date or dates the election is made.

(4) If the responsible entity elects to apply the declaration in section 8C of this instrument to a Product Disclosure Statement for a financial product:

(a) the election is taken to also cover any subsequent Product Disclosure Statements for the financial product; and

(b) the declaration in section 8C of this instrument applies to the Product Disclosure Statement and any subsequent Product Disclosure Statements for the financial product.

(5) An election made under this section cannot be withdrawn.

12 Disclosure of fees and costs—application to periodic statements

(1) The declaration in section 8C of this instrument applies to periodic statements for reporting periods commencing on or after 30 September 2021.

Election by the responsible entity

(2) The responsible entity of a registered time-sharing scheme may, in accordance with subsection (3), elect to apply the declaration in section 8C of this instrument to a periodic statement for a reporting period (an earlier reporting period) that:

(a) commences on or after 14 December 2020; or

(b) ends on a day (the exit date) that is on or after 14 December 2020 if the reporting period ends on the exit date because the holder of the product ceased to hold the product on the exit date. 

(3) The responsible entity elects to apply the declaration in section 8C of this instrument to a periodic statement for an earlier reporting period if the responsible entity makes a written record of:

(a) the financial products to which the election relates;

(b) the reporting periods to which the election relates; and

(c) the date or dates the election is made.

(4) If the responsible entity elects to apply the declaration in section 8C of this instrument to a periodic statement for an earlier reporting period:

(a) the election is taken to also cover any periodic statements for any subsequent reporting periods; and

(b) the declaration in section 8C of this instrument applies to the periodic statement and any periodic statements for any subsequent reporting periods.

(5) An election made under this section cannot be withdrawn.

13 Disclosure of fees and costs—transitional exemption from ongoing disclosure of material changes and significant events

(1) A responsible entity of a registered time-sharing scheme does not have to comply with subsection 1017B(1) of the Act to the extent section 8C of this instrument directly results in a change or event that, but for this section, would be required to be notified under that subsection of the Act.

(2) The exemption in this section only applies in relation to the first time the responsible entity makes changes to a Product Disclosure Statement as a direct result of section 8C of this instrument.

ASIC Corporations (Disclosure of Fees and Costs) Instrument 2019/1070

6 Section 7

After subsection (1), insert:

(1A) The declarations in this instrument do not apply to a Product Disclosure Statement covered by section 8C of ASIC Corporations (Time-sharing Schemes) Instrument 2017/272.

7 Section 8

After subsection (1), insert:

(1A) The declarations in this instrument do not apply to a periodic statement covered by section 8C of ASIC Corporations (Time-sharing Schemes) Instrument 2017/272.