CHAPTER 2N
-
UPDATING ASIC INFORMATION ABOUT COMPANIES, REGISTERED SCHEMES AND NOTIFIED FOREIGN PASSPORT FUNDS
[
CCH Note:
Ch 2N heading will be amended by No 69 of 2020, s 3, Sch 1
[
633], by omitting
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
Ch 2N heading substituted by No 61 of 2018, s 3, Sch 2[120] (effective 18 September 2018).
PART 2N.3
-
SOLVENCY RESOLUTION
Note: This Part does not apply to CCIVs: see subsection
1232U(1)
.
History
Pt 2N.3 amended by No 8 of 2022, s 3, Sch 2[140] (effective 1 July 2022).
Pt 2N.3 inserted by No 24 of 2003, s 3, Sch 1
[
30].
SECTION 347A
DIRECTORS MUST PASS A SOLVENCY RESOLUTION AFTER EACH REVIEW DATE
347A(1)
The directors of a company must pass a solvency resolution within 2 months after each review date for the company.
347A(2)
Subsection
(1)
does not apply to the directors of a company that has lodged a financial report with ASIC under Chapter
2M
within the period of 12 months before the review date.
Note: The defendant bears an evidential burden in relation to the matter in subsection
(2)
. See subsection
13.3(3)
of the
Criminal Code
.
[
CCH Note:
S 347A(2) will be amended by No 69 of 2020, s 3, Sch 1[650], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
347A(3)
An offence based on subsection
(1)
is an offence of strict liability.
History
S 347A(3) substituted by No 17 of 2019, s 3, Sch 1
[
25] (effective 13 March 2019).
History
S 347A inserted by No 24 of 2003, s 3, Sch 1
[
30].
SECTION 347B
NOTICE TO ASIC
[
CCH Note:
S 347B heading will be amended by No 69 of 2020, s 3, Sch 1[651], by substituting
"
THE REGISTRAR
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
347B(1)
If the directors of a company pass a negative solvency resolution under section
347A
, the company must notify ASIC of that fact, in the prescribed form, within 7 days after the resolution is passed.
[
CCH Note:
S 347B(1) will be amended by No 69 of 2020, s 3, Sch 1[652] and
[
653], by substituting
"
the Registrar
"
for
"
ASIC of that fact, in the prescribed form,
"
and inserting
"
The notification must meet any requirements of the data standards.
"
at the end, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
347B(2)
If:
(a)
subsection
347A(1)
applies to the directors of a company; and
(b)
the directors have not passed a solvency resolution under section
347A
within 2 months after a review date;
the company must notify ASIC of that fact, in the prescribed form, within 7 days after the end of the 2 month period following the review date.
[
CCH Note 1:
S 347B(2) will be amended by No 69 of 2020, s 3, Sch 1[654], by substituting
"
the Registrar
"
for
"
ASIC of that fact, in the prescribed form,
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 347B(2A) will be inserted by No 69 of 2020, s 3, Sch 1[655] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 347B(2A) will read:
347B(2A)
A notification under subsection (1) or (2) must meet any requirements of the data standards.]
347B(3)
An offence based on subsection
(1)
or
(2)
is an offence of strict liability.
History
S 347B(3) substituted by No 17 of 2019, s 3, Sch 1
[
26] (effective 13 March 2019).
History
S 347B inserted by No 24 of 2003, s 3, Sch 1
[
30]
SECTION 347C
PAYMENT OF REVIEW FEE IS TAKEN TO BE A REPRESENTATION BY THE DIRECTORS THAT THE COMPANY IS SOLVENT
347C(1)
If:
(a)
a company has paid its review fee in respect of a review date; and
(b)
the company has not lodged a notice under section
347B
within 7 days after the end of the 2 month period following the review date; and
(c)
the company has not lodged a financial report with ASIC under Chapter
2M
within the period of 12 months before the review date;
the directors of the company are taken to have represented to ASIC, as at the end of the 2 month period following the company
'
s review date, that, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.
Note: Directors are not taken to have passed a solvency resolution for the purposes of section
347A
merely because they are taken, under this subsection, to have made a representation to ASIC.
[
CCH Note:
S 347C(1) will be amended by No 69 of 2020, s 3, Sch 1[656], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (c) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
347C(2)
Subsection
(1)
does not apply if the directors prove that they made a positive solvency resolution under section
347A
within 2 months after the end of the review date.
History
S 347C inserted by No 24 of 2003, s 3, Sch 1
[
30].