Corporations Amendment Regulation 2012 (No. 6) (172 of 2012)

Schedule 1   Amendments

[1]   Regulation 5C.11.01

substitute

5C.11.01 Certain schemes not managed investment schemes

(1)For paragraph (n) of the definition of managed investment scheme in section 9 of the Act, each of the following schemes is declared not to be a managed investment scheme:

(a)an approved benefit fund within the meaning given by subsection 16B (1) of theLife Insurance Act 1995;

(b)a scheme that has all of the following features:

(i)the dominant purpose of the scheme is for each of its members to seek remedies to which they may be legally entitled;

(ii)the possible entitlement of each of the members of the scheme to remedies arises out of:

(A)the same, similar or related transactions or circumstances that give rise to a common issue of law or fact; or

(B)different transactions or circumstances but the claims of the members can be appropriately dealt with together;

(iii)the possible entitlement of each of the members of the scheme to remedies relates to transactions or circumstances that occurred before or after the first funding agreement (dealing with any issue of interests in the scheme) is finalised;

(iv)the steps taken to seek remedies for each of the members of the scheme include a lawyer providing services in relation to:

(A)making a demand for payment in relation to a claim; or

(B)lodging a proof of debt; or

(C)commencing or undertaking legal proceedings; or

(D)investigating a potential or actual claim; or

(E)negotiating a settlement of a claim; or

(F)administering a deed of settlement or scheme of settlement relating to a claim;

(v)a person (the funder ) may provide funds or indemnities under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the scheme is not successful in seeking remedies) to enable the members of the scheme to seek remedies;

(vi)the lawyer mentioned in subparagraph (iv) and the funder mentioned in subparagraph (v) are not members of the scheme;

(c)a scheme that has all of the following features:

(i)the scheme relates to an externally-administered body corporate;

(ii)the creditors or members of the body corporate provide funds (including through a trust) or indemnities to the body corporate or external administrator;

(iii)the funds or indemnities enable the external administrator or the body corporate to:

(A)conduct investigations; or

(B)to seek or enforce a remedy against a third party; or

(C)to defend proceedings brought against the body corporate in relation to the external administration of the body corporate (other than in relation to allegations, made by creditors or members of the body corporate, of negligence or non-performance of duties by the external administrator);

(iv)if a remedy is sought or enforced against a third party, the remedy will benefit the external administration of the body corporate but will not directly benefit the creditors or members.

(2)In paragraph (1) (c):

external administrator includes an administrator, a liquidator (including a provisional liquidator) and a controller.