Corporations Act 2001

CHAPTER 5C - MANAGED INVESTMENT SCHEMES  

PART 5C.9 - WINDING UP  

SECTION 601NA  

601NA   WINDING UP REQUIRED BY SCHEME ' S CONSTITUTION  


The constitution of a registered scheme may provide that the scheme is to be wound up:

(a)    at a specified time; or

(b)    in specified circumstances or on the happening of a specified event;

but a provision of the constitution that purports to provide that the scheme is to be wound up if a particular company ceases to be its responsible entity is of no effect (including for the purposes of paragraph 601NE(1)(a) ).

SECTION 601NB  

601NB   WINDING UP AT DIRECTION OF MEMBERS  


If members of a registered scheme want the scheme to be wound up, they may take action under Division 1 of Part 2G.4 for the calling of a members ' meeting to consider and vote on an extraordinary resolution directing the responsible entity to wind up the scheme.

SECTION 601NC   WINDING UP IF SCHEME ' S PURPOSE ACCOMPLISHED OR CANNOT BE ACCOMPLISHED  

601NC(1)    
If the responsible entity of a registered scheme considers that the purpose of the scheme:

(a)    has been accomplished; or

(b)    cannot be accomplished;

it may, in accordance with this section, take steps to wind up the scheme.


601NC(2)    
The responsible entity must give to the members of the scheme and to ASIC a notice in writing:

(a)    explaining the proposal to wind up the scheme, including explaining how the scheme ' s purpose has been accomplished or why that purpose cannot be accomplished; and

(b)    informing the members of their rights to take action under Division 1 of Part 2G.4 for the calling of a members ' meeting to consider the proposed winding up of the scheme and to vote on any extraordinary resolution members propose about the winding up of the scheme; and

(c)    informing the members that the responsible entity is permitted to wind up the scheme unless a meeting is called to consider the proposed winding up of the scheme within 28 days of the responsible entity giving the notice to the members.


601NC(3)    
If no meeting is called within that 28 days to consider the proposed winding up, the responsible entity may wind up the scheme.

SECTION 601ND   WINDING UP ORDERED BY COURT  

601ND(1)    
The Court may, by order, direct the responsible entity of a registered scheme to wind up the scheme if:

(a)    the Court thinks it is just and equitable to make the order; or

(b)    within 3 months before the application for the order was made, execution or other process was issued on a judgment, decree or order obtained in a court (whether an Australian court or not) in favour of a creditor of, and against, the responsible entity in its capacity as the scheme's responsible entity and the execution or process has been returned unsatisfied.

601ND(2)    
An order based on paragraph (1)(a) may be made on the application of:

(a)    the responsible entity; or

(b)    a director of the responsible entity; or

(c)    a member of the scheme; or

(d)    ASIC.

601ND(3)    
An order based on paragraph (1)(b) may be made on the application of a creditor.

SECTION 601NE   THE WINDING UP OF THE SCHEME  

601NE(1)    
The responsible entity of a registered scheme must ensure that the scheme is wound up in accordance with its constitution and any orders under subsection 601NF(2) if:

(a)    the scheme ' s constitution provides that the scheme is to be wound up at a specified time, in specified circumstances or on the happening of a specified event and that time is reached, those circumstances occur or that event occurs; or

(b)    the members pass an extraordinary resolution directing the responsible entity to wind up the scheme; or

(c)    the Court makes an order directing the responsible entity to wind up the scheme; or

(d)    the members pass a resolution removing the responsible entity but do not, at the same meeting, pass a resolution choosing a company to be the new responsible entity that consents to becoming the scheme ' s responsible entity.

Note: For the Court ' s power to order winding up, see subsection 601FQ(5) and section 601ND .


601NE(2)    
The responsible entity of a registered scheme may wind up the scheme in accordance with its constitution and any orders under subsection 601NF(2) if the responsible entity is permitted by subsection 601NC(3) to wind up the scheme.

601NE(3)    
Interests must not be issued in a registered scheme at a time after the responsible entity has become obliged to ensure the scheme is wound up, or after the scheme has started to be wound up.

SECTION 601NF   OTHER ORDERS ABOUT WINDING UP  

601NF(1)    
The Court may, by order, appoint a person to take responsibility for ensuring a registered scheme is wound up in accordance with its constitution and any orders under subsection (2) if the Court thinks it necessary to do so (including for the reason that the responsible entity has ceased to exist or is not properly discharging its obligations in relation to the winding up).

601NF(2)    
The Court may, by order, give directions about how a registered scheme is to be wound up if the Court thinks it necessary to do so (including for the reason that the provisions in the scheme ' s constitution are inadequate or impracticable).

601NF(3)    
An order under subsection (1) or (2) may be made on the application of:

(a)    the responsible entity; or

(b)    a director of the responsible entity; or

(c)    a member of the scheme; or

(d)    ASIC.

SECTION 601NG  

601NG   UNCLAIMED MONEY TO BE PAID TO ASIC  


If, on completion of the winding up of a registered scheme, the person who has been winding up the scheme has in their possession or under their control any unclaimed or undistributed money or other property that was part of the scheme property, the person must, as soon as practicable, pay the money or transfer the property to ASIC to be dealt with under Part 9.7 .