Corporations Act 2001
[ CCH Note: S 53 heading will be substituted by No 8 of 2022, s 3, Sch 2[31] (effective 1 July 2022). The heading will read:
53 AFFAIRS OF A BODY CORPORATE (OTHER THAN A CCIV) ]
For the purposes of the definition of examinable affairs in section 9 , section 53AA , 232 , 233 or 234 , paragraph 461(1)(e) , section 487 , subsection 1307(1) or section 1309 , or of a prescribed provision of this Act, the affairs of a body corporate include: (a) the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and (b) in the case of a body corporate (not being a licensed trustee company or the Public Trustee of a State or Territory) that is a trustee (but without limiting the generality of paragraph (a)) - matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust; and (c) the internal management and proceedings of the body; and (d) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when:
(i) a receiver, or a receiver and manager, is in possession of, or has control over, property of the body; or
(ii) the body is under administration; or
(iia) a deed of company arrangement executed by the body has not yet terminated; or
(iib) the body is under restructuring; or
(iic) a restructuring plan made by the body has not yet terminated; or
(iii) a compromise or arrangement made between the body and any other person or persons is being administered; or
and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator of the body, of an administrator of such a deed of company arrangement, of a restructuring practitioner for the body, of a restructuring practitioner for such a restructuring plan, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body; and (e) the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body; and (f) the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the body or to dispose of, or to exercise control over the disposal of, such shares; and (g) matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body; and (h) the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests in a managed investment scheme made available by, the body; and
(iv) the body is being wound up;
[ CCH Note: there is no paragraph 53(i)]
[ CCH Note: S 53 will be amended by No 8 of 2022, s 3, Sch 2[32], by inserting " (other than a CCIV) " after " body corporate " (first occurring) (effective 1 July 2022).]
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CCH Note:
S 53AAA will be inserted by No 8 of 2022, s 3, Sch 2[33] (effective 1 July 2022). S 53AAA will read:
SECTION 53AAA AFFAIRS OF A CCIV
53AAA(1)
For the purposes of the provisions referred to in subsection
(3)
, the affairs of a body corporate that is a CCIV include anything that would be included in the affairs of a body corporate under section
53
.
53AAA(2)
In applying paragraph
53(d)
to the CCIV:
(a)
disregard subparagraphs
(ii)
and
(iia)
; and
(b)
treat the reference in subparagraph
(iv)
to the body as instead being a reference to a sub-fund of the CCIV; and
(c)
treat the reference to a liquidator or provisional liquidator of the body as instead being a reference to a liquidator or provisional liquidator of a sub-fund of the CCIV.
53AAA(3)
The provisions for subsection
(1)
are the following:
(a)
a provision referred to in section
53
;
(b)
a provision prescribed for the purposes of section
53
;
(c)
section
1222
(about requirements for registration as a CCIV);
(d)
section
1224F
(about who can be the director of a CCIV);
(e)
section
1224J
(about corporate director must operate the CCIV);
(f)
section
1237V
(about Court order imposing liability on unlicensed person operating CCIV);
(g)
section
1241C
(about extra kinds of financial services relating to CCIVs);
(h)
section
1241E
(about when conduct does not constitute providing a custodial or depository service in relation to a CCIV);
(i)
section
1241F
(about Australian financial services licences to conduct the affairs of a CCIV);
(j)
section
1241L
(about financial services disclosure does not apply to conducting the affairs of CCIVs);
(k)
a provision of this Act prescribed by the regulations for the purposes of this paragraph.]
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