CHAPTER 8B
-
CORPORATE COLLECTIVE INVESTMENT VEHICLES
History
Ch 8B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
PART 8B.3
-
CORPORATE GOVERNANCE OF CCIVs
History
Pt 8B.3 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 1
-
Governance rules
CCH Note:
Division 1 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 1 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
How a CCIV exercises company powers
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223
EXECUTION OF DOCUMENTS (INCLUDING DEEDS) BY THE CCIV ITSELF
CCH Note:
Section 1223 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1223(1)
A document is taken to have been signed in accordance with subsection
127(1)
if the document is signed by:
(a)
2 directors of the corporate director of the CCIV; or
(b)
a director and a company secretary of the corporate director of the CCIV.
Note: If a document is signed in this way, a person will be able to rely on the assumptions in subsection
129(5)
for dealings in relation to the CCIV.
1223(2)
A CCIV
'
s common seal (if any) is taken to have been fixed to a document in accordance with subsection
127(2)
if:
(a)
the CCIV
'
s common seal is fixed to the document; and
(b)
the fixing of the seal is witnessed by:
(i)
2 directors of the corporate director of the CCIV; or
(ii)
a director and a company secretary of the corporate director of the CCIV.
Note: If a CCIV executes a document in this way, a person will be able to rely on the assumptions in subsection
129(6)
for dealings in relation to the CCIV.
1223(3)
A CCIV may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection
127(1)
or
(2)
, as affected by this section.
1223(4)
This section does not limit the ways in which a CCIV may execute a document (including a deed).
1223(5)
This section does not limit Part
2B.1
, as it applies to a CCIV subject to the modifications set out in this Chapter.
Note 1: A CCIV may appoint an agent: see section
126
.
Note 2: Some provisions of this Chapter modify section
124
, for example sections
1230
and
1231N
.
History
S 1223 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Constitution
CCH Note:
Subdivision B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223A
REPLACEABLE RULES DO NOT APPLY TO A CCIV
CCH Note:
Section 1223A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1223A(1)
A section or subsection whose heading contains the words
replaceable rule
does not apply as a replaceable rule to a CCIV.
1223A(2)
Subsection
(1)
applies despite paragraph
135(1)(a)
.
History
S 1223A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223B
REQUIREMENT FOR A CCIV TO HAVE A CONSTITUTION
CCH Note:
Section 1223B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1223B(1)
A CCIV must have a constitution. A CCIV may not repeal its constitution unless it replaces the constitution with a new constitution.
Minimum content requirements for the constitution
1223B(2)
The constitution of a CCIV must comply with the requirements applicable to the CCIV under Subdivision
C
.
Strict liability offence
1223B(3)
A CCIV commits an offence of strict liability if it fails to ensure it has a constitution that complies with the requirements applicable to the CCIV under Subdivision
C
.
History
S 1223B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223C
RETAIL CCIV
-
ASIC MAY DIRECT CCIV TO MODIFY ITS CONSTITUTION
CCH Note:
Section 1223C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1223C(1)
ASIC may direct a retail CCIV to modify its constitution, as set out in the direction, to ensure that the CCIV
'
s constitution complies with the content requirements applicable to the CCIV under Subdivision
C
. The direction is to be given by notice in writing to the CCIV.
1223C(2)
ASIC may also direct a retail CCIV to modify its constitution, as set out in the direction, to ensure that the CCIV
'
s constitution deals in adequate detail with:
(a)
the matters required to be included in the constitution under Subdivision
C
; and
(b)
the specification (if any) of any rights of the corporate director to be paid fees out of assets of a sub-fund of the CCIV, as mentioned in section
1224N
.
1223C(3)
Despite section
1223D
, the corporate director may modify the constitution to comply with the direction.
1223C(4)
The CCIV must comply with the direction within 14 days after being given it.
1223C(5)
The CCIV must lodge with ASIC a copy of the modified constitution within 14 days after the modification.
1223C(6)
An offence based on subsection
(4)
or
(5)
is an offence of strict liability.
History
S 1223C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223D
ADOPTION, MODIFICATION AND REPEAL OF CONSTITUTION
CCH Note:
Section 1223D is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125 and the ASIC Corporations (Changing Scheme Constitutions) Instrument 2019/700.
1223D(1)
A CCIV adopts on registration the constitution lodged with the application to register the CCIV.
1223D(2)
The constitution of a CCIV may be modified, or repealed and replaced with a new constitution:
(a)
if the CCIV is a retail CCIV:
(i)
by special resolution of the members of the CCIV; or
(ii)
by the corporate director, if the corporate director reasonably considers the change will not adversely affect members
'
rights; or
(iii)
by special resolution of the members of a sub-fund of the CCIV, if the corporate director reasonably considers the change will not adversely affect the rights of any member of any other sub-fund of the CCIV; or
(b)
if the CCIV is a wholesale CCIV
-
by complying with the requirements set out in the constitution for the modification or repeal.
1223D(3)
If the constitution of a CCIV is modified, or repealed and replaced with a new constitution, the CCIV must lodge with ASIC:
(a)
a copy of the modification, or the new constitution; and
(b)
if the corporate director of the CCIV determines a later date mentioned in paragraph
(5)(b)
or
(c)
for the modification or replacementto take effect
-
notice of the later date;
within 14 days after the modification or replacement.
Note: The constitution may be modified or repealed by Court order: see section
233
.
1223D(4)
An offence based on subsection
(3)
is an offence of strict liability.
1223D(5)
If section
137
does not set the date on which the modification or repeal and replacement of a CCIV
'
s constitution takes effect, it takes effect on the latest of the following:
(a)
the date on which the modification or the new constitution is lodged with ASIC;
(b)
if the CCIV is a retail CCIV, and the corporate director determines a later date for the modification or replacement to take effect
-
that later date;
(c)
if the CCIV is a wholesale CCIV, and a later date is determined in accordance with any requirements in the constitution of the CCIV
-
that later date.
1223D(6)
Section
136
does not apply to a CCIV.
History
S 1223D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223E
1223E
EFFECT OF CONSTITUTION
CCH Note:
Section 1223E is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
In addition to the effect mentioned in subsection
140(1)
, a CCIV
'
s constitution also has effect as a contract between the corporate director and each member of the CCIV.
History
S 1223E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision C
-
Minimum content requirements for the constitution of a CCIV
CCH Note:
Subdivision C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223F
1223F
WHOLESALE CCIV
-
BASIC CONTENT REQUIREMENT
CCH Note:
Section 1223F is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
A wholesale CCIV
'
s constitution must specify the requirements that must be complied with for the CCIV to modify its constitution, or repeal its constitution and replace it with a new one.
History
S 1223F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223G
1223G
RETAIL CCIV
-
BASIC CONTENT REQUIREMENTS
CCH Note:
Section 1223G is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
A retail CCIV
'
s constitution must do the following:
(a)
make provision for the establishment of sub-funds, and classes of shares referable to sub-funds;
(b)
make provision for the method by which complaints made by members in relation to the CCIV are to be dealt with;
(c)
state that the CCIV has the power to borrow or raise money;
(d)
if there are to be any limits on the CCIV
'
s exercise of the power to borrow or raise money
-
sets out those limits;
(e)
if the CCIV is to acquire in respect of any of its sub-funds, one or more shares that are referable to another of its sub-funds
-
make provision for such acquisitions.
History
S 1223G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1223H
RETAIL CCIV
-
ADDITIONAL CONTENT REQUIREMENT FOR REDEMPTION OF SHARES
CCH Note:
Section 1223H is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1223H(1)
This section applies if all or some of the shares in a retail CCIV are redeemable shares or redeemable preference shares.
1223H(2)
The CCIV
'
s constitution must make provision for the shares to be redeemed. The provision must:
(a)
specify a period within which a redemption must ordinarily be satisfied while section
1230H
(about when a sub-fund is liquid) applies to the sub-fund to which the share is referable; and
(b)
be fair and reasonable to the members of the sub-fund to which the share is referable; and
(c)
set out a price, or a method for determining a price, at which shares in the CCIV are to be redeemed if, at the time of the redemption, section
1230H
(about when a sub-fund is liquid) applies to the sub-fund to which the shares are referable.
History
S 1223H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 2
-
Officers and employees of the CCIV
CCH Note:
Division 2 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 2 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Officers and employees generally
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224
A CCIV HAS A SINGLE CORPORATE DIRECTOR
CCH Note:
Section 1224 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
A CCIV may only have one director
1224(1)
A CCIV must not appoint more than one director.
Note: For who can be the director of a CCIV, see sections
1224F
and
1224G
.
Position of director is the position of corporate director
1224(2)
The position of director of a CCIV is the position of corporate director.
1224(3)
Corporate director
of a CCIV means the company named in ASIC
'
s record of the CCIV
'
s registration as the corporate director or temporary corporate director of the CCIV.
Note: The corporate director is first appointed through the registration process for the CCIV: see sections
1222A
and
1222D
.
No alternate directors
1224(4)
There is no position of alternate director of a CCIV.
1224(5)
The corporate director of a CCIV commits an offence if the corporate director appoints an alternate director.
Note: For the corporate director
'
s power to appoint an agent, see section
1224L
.
Definition of director not limited
1224(6)
This section does not limit the operation of paragraph
(b)
of the definition of
director
in section
9
in relation to a CCIV.
History
S 1224 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224A
A CCIV HAS NO SECRETARY AND NO EMPLOYEES
CCH Note:
Section 1224A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224A(1)
A CCIV must not appoint a secretary.
Note: The secretary of the corporate director is responsible for certain corporate contraventions by the CCIV: see Division
3
of this Part.
1224A(2)
A CCIV must not have any employees.
Note: However, a CCIV may appoint an agent: see section
126
.
History
S 1224A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224B
1224B
MEANING OF OFFICER OF A CCIV
CCH Note:
Section 1224B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
In this Act:
officer
of a corporation that is a CCIV means:
(a)
a director of the CCIV; or
(b)
a receiver, or receiver and manager, of the property of a sub-fund of the CCIV; or
(c)
a liquidator of a sub-fund of the CCIV; or
(d)
a trustee or other person administering a compromise or arrangement made between the CCIV and someone else.
Note: Part
8B.6
is about external administration of sub-funds.
History
S 1224B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224C
GENERAL DUTIES OWED BY OFFICERS
CCH Note:
Section 1224C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224C(1)
Division
1
of Part
2D.1
(about general duties) applies to a CCIV with the modifications set out in this section.
1224C(2)
In applying Division
1
of Part
2D.1
(about general duties) in relation to an officer (other than a director) of a CCIV:
(a)
treat references to the best interests of the corporation as instead being references to the best interests of the sub-fund referred to in subsection
(3)
; and
(b)
treat references to causing detriment to the corporation as instead being references to causing detriment to the sub-fund referred to in subsection
(3)
; and
(c)
treat references to the business operations of the corporation as instead being references to the business operations of the sub-fund referred to in subsection
(3)
.
1224C(3)
The sub-fund is:
(a)
for a receiver, or receiver and manager, of the property of a sub-fund of the CCIV
-
the sub-fund; or
(b)
for a liquidator of a sub-fund of the CCIV
-
the sub-fund; or
(c)
for a trustee or other person administering a compromise or arrangement made between the CCIV and someone else
-
the sub-fund on whose members or creditors the compromise or arrangement is binding.
History
S 1224C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224D
DUTIES OWED BY DIRECTOR
CCH Note:
Section 1224D is modified by the ASIC Class Order CO 13/721 Relief to Facilitate Quotation of Exchange Traded Funds on the Aqua Market; the ASIC Corporations (Registered Schemes
-
Differential Fees) Instrument 2017/40; the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125; and the ASIC Corporations (Equality of Treatment Impacting on the Acquisition of Scheme Interests and CCIV Shares) Instrument 2023/697.
Duties owed by a director of any CCIV
1224D(1)
A director of a CCIV must, in exercising its powers and carrying out its duties:
(a)
act honestly; and
(b)
act in the best interests of the members of the CCIV and, if there is a conflict between the interests of those members and its own interests, give priority to the members
'
interests; and
(c)
act in the best interests of the members, as a whole, of each sub-fund of the CCIV and:
(i)
if there is a conflict between the interests of the members, as a whole, of a sub-fund and its own interests, give priority to the members
'
interests; and
(ii)
if there is a conflict between the interests of the members, as a whole, of a sub-fund and the best interests of the members of the CCIV, give priority to the interests of the members of the CCIV; and
(d)
have in place adequate arrangements for the management of conflicts of interest that may arise wholly, or partially, in relation to activities undertaken by the director in exercising those powers and carrying out those duties; and
(e)
not make use of information acquired through being a director of the CCIV in order to:
(i)
gain an improper advantage for the director or another person; or
(ii)
cause detriment to the members of the CCIV.
Note: This subsection is a civil penalty provision (see section
1317E
).
Additional duties owed by a director of a retail CCIV
1224D(2)
A director of a retail CCIV must, in exercising its powers and carrying out its duties:
(a)
exercise the degree of care and diligence that a reasonable person would exercise in the director
'
s position; and
(b)
treat members of the CCIV who hold shares of the same class equally; and
(c)
treat members of the CCIV who hold shares of different classes fairly; and
(d)
treat members of different sub-funds of the CCIV fairly; and
(e)
ensure that the CCIV
'
s constitution meets the requirements of this Act; and
(f)
ensure that the CCIV
'
s compliance plan meets the requirements of section
1226A
; and
(g)
comply with the CCIV
'
s compliance plan; and
(h)
ensure that:
(i)
assets and liabilities of the sub-funds of the CCIV are clearly identified; and
(ii)
any property of the CCIV to which section
1233K
(about property that has to be converted) applies is clearly identified; and
(iii)
any liabilities of the CCIV to which section
1233M
(about liabilities allocated to 2 or more sub-funds) applies is clearly identified; and
(i)
ensure that assets of a sub-fund of the CCIV are held in the manner required by section
1234J
; and
(j)
ensure that the assets of a sub-fund of the CCIV are valued at regular intervals appropriate to the nature of the assets; and
(k)
ensure that all payments out of the assets of the CCIV are made in accordance with the CCIV
'
s constitution and this Act; and
(l)
carry out or comply with any other duty, not inconsistent with this Act, that is conferred on the director by the CCIV
'
s constitution.
Note: This subsection is a civil penalty provision (see section
1317E
).
Additional duties owed by a director of a wholesale CCIV
1224D(3)
A director of a wholesale CCIV must, in exercising its powers and carrying out its duties:
(a)
exercise the degree of care and diligence that a reasonable person would exercise in the director
'
s position; and
(b)
treat members of the CCIV who hold shares of the same class equally; and
(c)
treat members of the CCIV who hold shares of different classes fairly; and
(d)
treat members of different sub-funds of the CCIV fairly.
1224D(4)
A director of a wholesale CCIV contravenes this subsection if:
(a)
the director contravenes paragraph
(3)(a)
,
(b)
,
(c)
or
(d)
; and
(b)
either:
(i)
the constitution of the CCIV does not exempt the director from liability for the contravention; or
(ii)
the contravention was dishonest or involved a lack of good faith.
Note: This subsection is a civil penalty provision (see section
1317E
).
Duties under this section prevail in case of conflict
1224D(5)
If there is a conflict between a duty owed by a director of a CCIV under this section and a duty owed by the director under Part
2D.1
, the duty owed under this section prevails.
Interaction with other laws etc.
1224D(6)
Subsection
(1)
or
(2)
:
(a)
has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b)
does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph
(a)
.
Interaction with section 199A
1224D(7)
Section
199A
does not prevent a wholesale CCIV from exempting or indemnifying a director of the CCIV from a liability incurred in relation to a contravention of subsection
(3)
if the contravention:
(a)
is not dishonest; and
(b)
does not involve a lack of good faith.
To avoid doubt, this subsection does not affect the operation of section
199A
in relation to a contravention of a duty owed under Part
2D.1
.
Interaction with section 199B
1224D(8)
Section
199B
applies to a CCIV as if paragraph
199B(1)(b)
included a reference to this section.
Note: There are additional modifications of section
199B
, relevant to officers and auditors of the corporate director, in section
1225E
.
History
S 1224D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224E
1224E
CERTAIN PROVISIONS IN CHAPTER 2D DO NOT APPLY TO CCIVs
CCH Note:
Section 1224E is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
The following do not apply to a CCIV:
(a)
Part
2D.3
(about appointment, remuneration and cessation of appointment of directors);
(b)
Part
2D.4
(about appointment of secretaries);
(c)
Part
2D.5
(about public information about directors and secretaries);
(d)
Part
2D.6
(about disqualification from managing corporations);
(e)
Part
2D.7
(about ban on hedging remuneration of key management personnel);
(f)
Part
2D.8
(about remuneration recommendations in relation to key management personnel for disclosing entities).
History
S 1224E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
The corporate director of a CCIV
CCH Note:
Subdivision B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224F
1224F
WHO CAN BE THE DIRECTOR OF A CCIV
CCH Note:
Section 1224F is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
The only kind of person who may be appointed as the director of a CCIV is a public company that:
(a)
holds an Australian financial services licence authorising it to operate the business and conduct the affairs of the CCIV; and
(b)
is not a Chapter
5
body corporate.
History
S 1224F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224G
RETAIL CCIV
-
ADDITIONAL RULES ABOUT WHO CAN BE THE DIRECTOR
CCH Note:
Section 1224G is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224G(1)
At least half of the directors of the corporate director of a retail CCIV must be external directors.
1224G(2)
A director of the corporate director is an external director if the director:
(a)
is not, and has not been in the previous 2 years, an employee of the corporate director or a related body corporate; and
(b)
is not, and has not been in the previous 2 years, a senior manager of the corporate director or a related body corporate; and
(c)
is not, and has not been in the previous 2 years, substantially involved in business dealings, or in a professional capacity, with the corporate director or a related body corporate; and
(d)
is not a member of a partnership that is, or has been in the previous 2 years, substantially involved in business dealings, or in a professional capacity, with the corporate director or a related body corporate; and
(e)
does not have a material interest in the corporate director or a related body corporate; and
(f)
is not a relative of a person who has a material interest in the corporate director or a related body corporate.
1224G(3)
The corporate director of a retail CCIV must not fail to comply with subsection
(1)
for a period exceeding 14 days (or a longer period allowed in writing by ASIC).
Fault-based offence
1224G(4)
A person commits an offence if the person intentionally or recklessly fails to comply with subsection
(3)
.
Strict liability offence
1224G(5)
A person commits anoffence of strict liability if the person fails to comply with subsection
(3)
.
1224G(6)
In agreeing to a longer period under subsection
(3)
, ASIC may impose conditions to be complied with and the corporate director must comply with them.
1224G(7)
An offence based on subsection
(6)
is an offence of strict liability.
History
S 1224G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224H
EFFECTIVENESS OF ACTS BY CORPORATE DIRECTOR
CCH Note:
Section 1224H is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224H(1)
An act done by the company named in ASIC
'
s record of a CCIV
'
s registration as the corporate director or temporary corporate director of the CCIV is effective even if:
(a)
the company
'
s appointment as corporate director or temporary corporate director did not comply with the CCIV
'
s constitution or any provision of this Act; or
(b)
the continuance of the company
'
s appointment as corporate director or temporary corporate director does not comply with the CCIV
'
s constitution or any provision of this Act.
1224H(2)
Subsection
(1)
does not deal with the question whether an effective act by a corporate director:
(a)
binds the CCIV in its dealings with other people; or
(b)
makes the CCIV liable to another person.
Note: The kinds of acts that this section validates are those that are only legally effective if the person doing them is a director (for example, calling a meeting of the company
'
s members). Sections
128
to
130
contain rules about the assumptions people are entitled to make when dealing with a company and its officers.
History
S 1224H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224J
CORPORATE DIRECTOR MUST OPERATE THE CCIV
CCH Note:
Section 1224J is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224J(1)
The corporate director of a CCIV is to:
(a)
operate the business and conduct the affairs of the CCIV; and
(b)
perform the functions conferred on the corporate director by the CCIV
'
s constitution and this Act.
Note 1: If a CCIV commits an offence or contravenes a civil penalty provision, the corporate director is generally responsible: see Division
7
of this Part.
Note 2: Section
1224Q
is about the exercise of powers by the corporate director while a sub-fund is in liquidation.
1224J(2)
The corporate director of a CCIV may exercise all the powers of the CCIV except any powers that this Act or the CCIV
'
s constitution requires:
(a)
the CCIV to exercise in general meeting; or
(b)
the members of a sub-fund of the CCIV to exercise in a meeting of members of the sub-fund.
History
S 1224J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224K
1224K
CORPORATE DIRECTOR NOT REQUIRED TO DISCLOSE MATERIAL PERSONAL INTEREST
CCH Note:
Section 1224K is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Subject to section
1225C
(about the directors of the corporate director), section
191
does not require a director of a CCIV to give notice of an interest.
Note: Section
1225C
is about the obligations of the directors of the corporate director to disclose material personal interests relating to the affairs of the CCIV.
History
S 1224K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224L
CORPORATE DIRECTOR MAY APPOINT AN AGENT OR ENGAGE A PERSON
CCH Note:
Section 1224L is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Agents appointed by corporate director
1224L(1)
The corporate director has power to appoint an agent, or otherwise engage a person, to do anything that the corporate director is authorised to do in connection with the CCIV.
Note: A CCIV may also have an agent: see section
126
.
Agents appointed by CCIV and sub-agents
1224L(2)
An agent appointed, or a person otherwise engaged, by:
(a)
an agent or person referred to in subsection
(1)
; or
(b)
the CCIV; or
(c)
a person who is taken under this subsection to be an agent of the corporate director;
to do anything that the corporate director is authorised to do in connection with the CCIV is taken to be an agent appointed by the corporate director to do that thing for the purposes of this section.
Delegation
1224L(3)
Section
198D
does not apply to a CCIV.
History
S 1224L inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224M
RETAIL CCIV
-
RESPONSIBILITY OF CORPORATE DIRECTOR FOR CERTAIN ACTS OF AGENTS
CCH Note:
Section 1224M is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224M(1)
Subsection
(2)
applies in relation to a retail CCIV for the purpose of determining whether:
(a)
there is a liability to the CCIV or the CCIV
'
s members; or
(b)
the corporate director has properly performed its duties for the purposes of section
1224N
.
Note: A CCIV
'
s constitution may provide for the corporate director to be indemnified for liabilities
-
see section
1224N
.
Extended liability for acts of agents
1224M(2)
If:
(a)
the corporate director appoints an agent, or otherwise engages a person, under section
1224L
; or
(b)
an agent or person is taken under subsection
1224L(2)
(about sub-agents) to be an agent of the corporate director;
the corporate director is taken to have done (or failed to do) anything that the agent or person has done (or failed to do) because of the appointment or engagement, even if the person or agent was acting fraudulently or outside the scope of the authority or engagement.
Note: This subsection does not apply to receivers: see section
1236F
.
History
S 1224M inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224N
1224N
RETAIL CCIV
-
LIMITATION ON RIGHT OF CORPORATE DIRECTOR TO FEES AND INDEMNITIES
CCH Note:
Section 1224N is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
If the corporate director of a retail CCIV is to have any rights to be paid fees out of assets of a sub-fund of the CCIV, or to be indemnified out of assets of a sub-fund of the CCIV for liabilities or expenses incurred in relation to the performance of its duties, those rights:
(a)
must be specified in the CCIV
'
s constitution; and
(b)
must be available only in relation to the proper performance of those duties;
and any other agreement or arrangement has no effect to the extent that it purports to confer such a right.
Note 1: ASIC may direct the CCIV to modify its constitution to ensure such rights are dealt with in adequate detail: see subsection
1223C(2)
.
Note 2: Sections
199A
to
199C
may prohibit giving an indemnity for the corporate director of a CCIV. Those sections have extended operation in relation to a CCIV: see section
1225E
.
History
S 1224N inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224P
RETAIL CCIV
-
LIMITATION ON RIGHT OF CORPORATE DIRECTOR TO ACQUIRE SHARES IN CCIV
CCH Note:
Section 1224P is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224P(1)
The corporate director of a retail CCIV may acquire and hold a share in the CCIV, but the corporate director must only do so:
(a)
for not less than the consideration that would be payable if the share were acquired by another person; and
(b)
subject to terms and conditions that would not disadvantage other members.
Note: If the corporate director holds a share in the CCIV, the corporate director does so subject to section
253E
, as affected by section
1228G
(certain members cannot vote or be counted).
1224P(2)
A corporate director who contravenes subsection
(1)
, and any person who is involved in a corporate director
'
s contravention of that subsection, contravenes this subsection.
Note 1: Section
79
defines involved.
Note 2: This subsection is a civil penalty provision (see section
1317E
).
1224P(3)
A person must not intentionally be involved in a corporate director
'
s contravention of subsection
(1)
.
History
S 1224P inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224Q
EXERCISE OF POWERS WHILE SUB-FUND IS IN LIQUIDATION
CCH Note:
Section 1224Q is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Powers of corporate director while sub-fund in liquidation
1224Q(1)
The corporate director of a CCIV contravenes this subsection if:
(a)
a sub-fund of the CCIV is being wound up, or a provisional liquidator of a sub-fund of the CCIV is acting; and
(b)
the corporate director purports to do any of the following:
(i)
carry on the business of the sub-fund;
(ii)
enter into a transaction or dealing on behalf of the CCIV affecting the property of the sub-fund.
1224Q(2)
However, subsection
(1)
does not apply to the extent that the corporate director is acting:
(a)
with the written approval of the liquidator of the sub-fund or the Court; or
(b)
in circumstances in which, despite the fact that the sub-fund is being wound up, the corporate director is permitted by this Act to act.
1224Q(3)
Despite subsection
13.3(3)
of the
Criminal Code
, in a prosecution for an offence based on subsection
(1)
of this section, a defendant does not bear an evidential burden in relation to the matter in paragraph
(2)(b)
.
Fault-based offence
1224Q(4)
A person commits an offence if the person contravenes subsection
(1)
.
Strict liability offence
1224Q(5)
A person commits an offence of strict liability if the person contravenes subsection
(1)
.
Functions and powers of liquidator prevail in case of conflict
1224Q(6)
If subsection
(2)
applies and there is a conflict between a function or power of the liquidator of the sub-fund and a function or power of the corporate director in relation to the CCIV, the liquidator
'
s function or power prevails.
Effect of section
1224Q(7)
This section does not remove the corporate director of a CCIV from office.
1224Q(8)
Nothing in this section affects a secured creditor
'
s right to realise or otherwise deal with the security interest.
1224Q(9)
Section
198G
does not apply to a CCIV.
1224Q(10)
A provision of this Act that applies despite section
198G
also applies despite this section.
Definitions
1224Q(11)
In this section:
liquidator
includes a provisional liquidator.
History
S 1224Q inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision C
-
Replacing the corporate director
CCH Note:
Subdivision C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224R
1224R
CHANGES ONLY TAKE EFFECT WHEN ASIC ALTERS RECORD OF REGISTRATION
CCH Note:
Section 1224R is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Despite anything in this Subdivision, the company named in ASIC
'
s record of registration as the corporate director or temporary corporate director of a CCIV remains the CCIV
'
s corporate director until the record is altered to name another company as the CCIV
'
s corporate director or temporary corporate director.
History
S 1224R inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224S
1224S
CCIV DOES NOT HAVE AN ELIGIBLE CORPORATE DIRECTOR
CCH Note:
Section 1224S is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
If a CCIV does not have a corporate director that meets the requirements of section
1224F
, an application to the Court for the appointment of a temporary corporate director of the CCIV under section
1224V
may be made by any of the following:
(a)
ASIC;
(b)
a member, or group of members, of the CCIV.
History
S 1224S inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224T
RETIREMENT OF CORPORATE DIRECTOR
CCH Note:
Section 1224T is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224T(1)
If the corporate director of a CCIV wants to retire as corporate director, it must call a members
'
meeting to explain its reason for wanting to retire and to enable the members to vote on a resolution to choose a company to be the new corporate director. The resolution must be a special resolution.
1224T(2)
The notice of meeting of the CCIV
'
s members must:
(a)
set out the corporate director
'
s reason for wanting to retire; and
(b)
nominate as the new corporate director a company (the
nominated company
) that:
(i)
meets the requirements of section
1224F
; and
(ii)
has consented in writing to being chosen as the new corporate director of the CCIV.
1224T(3)
If the members choose the nominated company to be the new corporate director, as soon as practicable and in any event within 2 business days after the day of the meeting, the current corporate director must lodge a notice with ASIC asking it to alter the record of the CCIV
'
s registration to name the nominated company as the corporate director of the CCIV.
1224T(4)
If:
(a)
the members choose the nominated company to be the new corporate director; and
(b)
the current corporate director does not lodge the notice required by subsection
(3)
;
the nominated company may lodge that notice.
1224T(5)
An offence based on subsection
(3)
is an offence of strict liability.
1224T(6)
If the members do not choose the nominated company to be the new corporate director, an application to the Court for appointment of a temporary corporate director under section
1224V
may be made by the current corporate director of the CCIV.
History
S 1224T inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224U
REPLACEMENT OF CORPORATE DIRECTOR BY MEMBERS
CCH Note:
Section 1224U is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224U(1)
If members of a CCIV want to replace the corporate director, the members may take action under Part
2G.4
(as that Part applies to the CCIV under section
1228A
) for the calling of a meeting of the CCIV
'
s members to consider and vote on:
(a)
a special resolution that the current corporate director should be removed; and
(b)
a special resolution choosing a company to be the new corporate director.
1224U(2)
The notice of meeting of the CCIV
'
s members must:
(a)
set out the intention to remove the current corporate director; and
(b)
nominate, as the new corporate director of the CCIV, a company that:
(i)
meets the requirements of section
1224F
; and
(ii)
has consented in writing to being appointed as the new corporate director of the CCIV.
1224U(3)
If both resolutions are passed, the CCIV is taken, on the day of the meeting, to have appointed the company nominated in the notice as the new corporate director of the CCIV.
Note: See also section
1224R
(when changes take effect).
1224U(4)
The current corporate director must, as soon as practicable and in any event within 2 business days after the appointment, lodge a notice with ASIC asking it to alter the record of the CCIV
'
s registration to name the company as the corporate director of the CCIV.
1224U(5)
If the current corporate director does not lodge the notice required by subsection
(4)
, the company chosen by the members to be the new corporate director may lodge that notice.
1224U(6)
An offence based on subsection
(4)
is an offence of strict liability.
History
S 1224U inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224V
APPOINTMENT OF TEMPORARY CORPORATE DIRECTOR BY COURT
CCH Note:
Section 1224V is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224V(1)
On application under section
1224S
or subsection
1224T(6)
or
1224X(2)
, the Court may:
(a)
if the CCIV has a current corporate director
-
order the removal of the current corporate director; and
(b)
order the appointment of a company as the temporary corporate director of the CCIV; and
(c)
make any further orders that the Court considers appropriate.
Note: See also section
1224R
(when changes take effect).
1224V(2)
The Court must not make an order under paragraph
(1)(a)
or
(b)
unless:
(a)
the Court is satisfied that:
(i)
the appointment is in the interests of the members of the CCIV; and
(ii)
the company meets the requirements of section
1224F
; and
(b)
the company consents in writing to becoming the CCIV
'
s temporary corporate director.
1224V(3)
The person who made the application for the order must, as soon as practicable and in any event within 2 days after the Court
'
s order appointing the temporary corporate director, lodge a notice with ASIC informing ASIC of the appointment made by the Court.
1224V(4)
If the person referred to in subsection
(3)
does not lodge the notice required by that subsection, the company appointed by the Court as the temporary corporate director may lodge that notice.
1224V(5)
An offence based on subsection
(3)
is an offence of strict liability.
History
S 1224V inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224W
TEMPORARY CORPORATE DIRECTOR TO INITIATE APPOINTMENT OF PERMANENT CORPORATE DIRECTOR
CCH Note:
Section 1224W is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224W(1)
This section applies if the Court appoints a temporary corporate director of a CCIV under section
1224V
.
1224W(2)
The temporary corporate director must, within the period applicable under subsection
(3)
, call a members
'
meeting for the purpose of the members, by special resolution, choosing a company to be the new permanent corporate director.
1224W(3)
The temporary corporate director must call the meeting within:
(a)
unless paragraph
(b)
applies
-
3 months of the appointment; or
(b)
if the Court has extended the period under subsection
(4)
-
the extended period.
1224W(4)
The Court may, on application by the temporary corporate director, grant an extension of the period referred to in paragraph
(3)(a)
.
1224W(5)
The temporary corporate director may, within the period applicable under subsection
(3)
, call further meetings of the CCIV
'
s members to consider and vote on a special resolution choosing a company to be the permanent corporate director.
1224W(6)
For the purposes of subsections
(2)
and
(5)
, the written notice of the meeting must nominate as the permanent corporate director a company (which may be the temporary corporate director) that:
(a)
meets the requirements of section
1224F
; and
(b)
has consented in writing to being appointed as the permanent corporate director of the CCIV.
1224W(7)
If the resolution is passed, the CCIV is taken, on the day of the meeting, to have appointed the company nominated in the notice as the permanent corporate director of the CCIV.
Note: See also section
1224R
(when changes take effect).
1224W(8)
The current corporate director must, as soon as practicable and in any event within 2 business days after the appointment, lodge a notice with ASIC asking it to alter the record of the CCIV
'
s registration to name the company as the corporate director of the CCIV.
1224W(9)
If the current corporate director does not lodge the notice required by subsection
(8)
, the company chosen by the members to be the new corporate director may lodge that notice.
1224W(10)
An offence based on subsection
(2)
or
(8)
is an offence of strict liability.
History
S 1224W inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224X
TEMPORARY CORPORATE DIRECTOR FAILS TO INITIATE APPOINTMENT OF PERMANENT CORPORATE DIRECTOR
CCH Note:
Section 1224X is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224X(1)
This section applies if:
(a)
a temporary corporate director is appointed by the Court under section
1224V
; and
(b)
the temporary corporate director fails to call a members
'
meeting to consider and vote on a special resolution choosing a company to be the permanent corporate director within the period applicable under subsection
1224W(3)
.
1224X(2)
An application to the Court for the appointment of a temporary corporate director of the CCIV under section
1224V
may be made by any of the following:
(a)
ASIC;
(b)
a member, or group of members, of the CCIV.
History
S 1224X inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224Y
MEMBERS FAIL TO APPOINT PERMANENT CORPORATE DIRECTOR
CCH Note:
Section 1224Y is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224Y(1)
This section applies if:
(a)
a temporary corporate director is appointed by the Court under section
1224V
; and
(b)
within the period applicable under subsection
1224W(3)
, the temporary corporate director calls one or more members
'
meetings to consider and vote on a special resolution choosing a company to be the permanent corporate director; and
(c)
the CCIV
'
s members do not pass a special resolution choosing a permanent corporate director.
1224Y(2)
An application to the Court for a winding up of all the sub-funds of the CCIV must be made by the corporate director of the CCIV.
Note: For provisions about winding up a sub-fund of a CCIV, see Division
5
of Part
8B.6
.
1224Y(3)
An application to the Court for a winding up of all the sub-funds of the CCIV may be made by any of the following, if the corporate director does not do so:
(a)
ASIC;
(b)
a member, or group of members, of the CCIV.
1224Y(4)
On an application under this section, the Court may:
(a)
order the winding up of all the sub-funds of the CCIV; and
(b)
make any further orders that the Court considers appropriate.
History
S 1224Y inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224Z
FORMER CORPORATE DIRECTOR TO HAND OVER BOOKS AND PROVIDE REASONABLE ASSISTANCE
CCH Note:
Section 1224Z is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224Z(1)
If the corporate director of a CCIV changes, the former corporate director must:
(a)
as soon as practicable give the new corporate director any books in the former corporate director
'
s possession or control that this Act requires to be kept in relation to the CCIV; and
(b)
give other reasonable assistance to the new corporate director to facilitate the change of corporate director.
1224Z(2)
An offence based on subsection
(1)
is an offence of strict liability.
History
S 1224Z inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224ZA
RIGHTS, OBLIGATIONS AND LIABILITIES OF FORMER CORPORATE DIRECTOR
CCH Note:
Section 1224ZA is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224ZA(1)
If the corporate director of a CCIV changes, the rights, obligations and liabilities of the former corporate director in relation to the CCIV become rights, obligations and liabilities of the new corporate director.
1224ZA(2)
Despite subsection
(1)
, the following rights and liabilities remain rights and liabilities of the former corporate director:
(a)
any right of the former corporate director to be paid fees for the performance of its functions before it ceased to be the corporate director;
(b)
any right of the former corporate director to be indemnified for expenses it incurred before it ceased to be the corporate director;
(c)
any right, obligation or liability that the former corporate director had as a member of the CCIV;
(d)
any liability for which the former corporate director could not have been indemnified out of the assets of the CCIV if it had remained the CCIV
'
s corporate director;
(e)
any liability arising out of a contravention by the former corporate director of a provision of this Act.
History
S 1224ZA inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224ZB
EFFECT OF CHANGE OF CORPORATE DIRECTOR ON DOCUMENTS ETC. TO WHICH FORMER CORPORATE DIRECTOR IS PARTY
CCH Note:
Section 1224ZB is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224ZB(1)
If the corporate director of a CCIV changes, a document relating to the CCIV:
(a)
to which the former corporate director is a party, in which a reference is made to the former corporate director, or under which the former corporate director has acquired or incurred a right, obligation or liability, or might have acquired or incurred a right, obligation or liability if it had remained the corporate director; and
(b)
that is capable of having effect after the change;
has effect as if the new corporate director (and not the former corporate director) were a party to it, were referred to in it or had or might have acquired or incurred the right, obligation or liability under it.
1224ZB(2)
Subsection
(1)
does not apply to a right, obligation or liability that remains a right, obligation or liability of the former corporate director because of subsection
1224ZA(2)
.
History
S 1224ZB inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision D
-
Termination payments
CCH Note:
Subdivision D is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224ZC
1224ZC
MEMBER APPROVAL NOT NEEDED FOR BENEFIT SPECIFIED IN CONSTITUTION
CCH Note:
Section 1224ZC is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Despite subsection
200AB(1)
, for the purposes of Division
2
of Part
2D.2
, a
benefit
does not include a payment made by the CCIV to its corporate director if:
(a)
the corporate director is entitled to the payment under provisions of the constitution; and
(b)
for a retail CCIV
-
the provisions comply with section
1224N
.
History
S 1224ZC inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224ZD
MODIFIED MEMBER APPROVAL FOR CCIVs
CCH Note:
Section 1224ZD is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1224ZD(1)
Sections
200B
and
200C
apply in relation to a benefit given by a CCIV as if:
(a)
the members whose approval is required under those provisions were the members of the sub-fund of the CCIV that would be affected by the giving of the benefit; and
(b)
the member approval mentioned in paragraph
(a)
were required to be given under section
200E
as modified by subsection
(3)
of this section.
Note: If the CCIV is a retail CCIV, there are additional restrictions on giving benefits: see section
1224N
.
1224ZD(2)
If the giving of the benefit would affect 2 or more sub-funds of the CCIV, then the approval of each affected sub-fund must be obtained in the way mentioned in subsection
(1)
.
Member approval
1224ZD(3)
Section
200E
applies in relation to a CCIV as if a reference to a general meeting were instead a reference to a meeting of the members of the affected sub-fund.
History
S 1224ZD inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1224ZE
1224ZE
BENEFITS PAID TO CORPORATE DIRECTOR NOT COVERED BY EXEMPTIONS
CCH Note:
Section 1224ZE is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
To avoid doubt, a benefit that is a payment to the corporate director of a CCIV is not a benefit to which paragraph
200F(1)(a)
, subsection
200F(2)
, or section
200G
applies.
History
S 1224ZE inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 3
-
Officers, employees and auditors of the corporate director
CCH Note:
Division 3 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 3 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Officers and auditors of the corporate director
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225
RETAIL CCIV
-
DUTIES OWED BY OFFICERS OF CORPORATE DIRECTOR
CCH Note:
Section 1225 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1225(1)
An officer of the corporate director of a retail CCIV must, in performing functions and exercising powers relating to the CCIV:
(a)
act honestly; and
(b)
exercise the degree of care and diligence that a reasonable person would exercise in the officer
'
s position; and
(c)
act in the best interests of the members of the CCIV and, if there is a conflict between the interests of those members and the interests of the corporate director, give priority to the members
'
interests; and
(d)
act in the best interests of the members, as a whole, of each sub-fund of the CCIV and:
(i)
if there is a conflict between the interests of the members, as a whole, of a sub-fund and the interests of the corporate director, give priority to the members
'
interests; and
(ii)
if there is a conflict between the interests of the members, as a whole, of a sub-fund and the best interests of the members of the CCIV, give priority to the interests of the members of the CCIV; and
(e)
not make use of information acquired through being an officer of the corporate director in order to:
(i)
gain an improper advantage for the officer or another person; or
(ii)
cause detriment to the members of the CCIV; and
(f)
not make improper use of their position as an officer to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the CCIV; and
(g)
take all steps that a reasonable person would take, in the officer
'
s position, to ensure that the corporate director complies with:
(i)
this Act; and
(ii)
any conditions imposed on the corporate director
'
s Australian financial services licence; and
(iii)
the CCIV
'
s constitution; and
(iv)
the CCIV
'
s compliance plan.
Note: This subsection is a civil penalty provision(see section
1317E
).
1225(2)
A person must not intentionally or recklessly contravene, or be involved in a contravention of, subsection
(1)
.
Duties under this section prevail in case of conflict
1225(3)
If there is a conflict between a duty owed by an officer of the corporate director of a retail CCIV under this section and a duty owed by the officer under Part
2D.1
, the duty owed under this section prevails.
Interaction with other laws etc.
1225(4)
Subsection
(1)
:
(a)
has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b)
does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph
(a)
.
History
S 1225 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225A
1225A
RESPONSIBILITY OF SECRETARY OF CORPORATE DIRECTOR FOR CERTAIN CONTRAVENTIONS BY CCIV
CCH Note:
Section 1225A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
A secretary of the corporate director of a CCIV contravenes subsection
188(1)
if the CCIV contravenes a corporate responsibility provision.
Note: Subsection
188(1)
is a civil penalty provision (see section
1317E
).
History
S 1225A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225B
1225B
RESPONSIBILITY OF SECRETARY OF CORPORATE DIRECTOR FOR CERTAIN CONTRAVENTIONS BY CORPORATE DIRECTOR
CCH Note:
Section 1225B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
For the purposes of subsection
188(1)
as it applies to the secretary of the corporate director, the provisions identified in column 1 of the following table, in addition to the provisions mentioned in subsection
188(1)
, are taken to be
corporate responsibility provisions
:
Provisions that are taken to be
corporate responsibility provisions
|
Item
|
Column 1
Provision(s)
|
Column 2
Topic
|
1 |
(a) |
subsection
1222L(3)
; |
notifying ASIC of status as a retail CCIV or wholesale CCIV |
|
(b) |
subsection
1222L(7) |
2 |
(a) |
subsection
1223C(5)
; |
lodgement of modified or replaced constitution and notifying ASIC when changes takes effect |
|
(b) |
subsection
1223D(3) |
3 |
(a) |
subsection
1224T(3)
; |
lodgement of notices about the corporate director of a CCIV |
|
(b) |
subsection
1224U(4)
; |
|
(c) |
subsection
1224W(8) |
4 |
(a) |
subsection
1226(3)
; |
lodgement of compliance plans etc. (retail CCIV only) |
|
(b) |
subsection
1226D(4)
; |
|
(c) |
subsection
1226E(3) |
5 |
subsection
1226G(4) |
lodgement of report of auditor of compliance plan (retail CCIV only) |
6 |
subsection
1226K(1) |
notifying ASIC when auditor of compliance plan changes (retail CCIV only) |
7 |
subsection
1230J(5) |
lodgement of a redemption offer |
8 |
subsection
1230J(8) |
notifying ASIC of the cancellation of a redemption offer |
History
S 1225B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225C
EXTENDED OBLIGATION OF DIRECTORS OF CORPORATE DIRECTOR
CCH Note:
Section 1225C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1225C(1)
For the purposes of Division
2
of Part
2D.1
, a material personal interest in a matter that relates to the affairs of a CCIV is treated as being a material personal interest in a matter that relates to the affairs of the corporate director of the CCIV.
Note: The effect of this subsection is that Division
2
of Part
2D.1
applies to directors of the corporate director of a CCIV in relation to material personal interests those directors have in matters relating to the affairs of the CCIV.
1225C(2)
Subsection
(1)
does not affect the operation of Division
2
of Part
2D.1
in relation to an interest that, apart from that subsection, is a material personal interest in a matter that relates to the affairs of the corporate director.
1225C(3)
For an offence based on subsection
191(1)
, as it applies to the director of a corporate director as a result of subsection
(1)
of this section, strict liability applies to the circumstance, that the director of the corporate director has a material personal interest in a matter that relates to the affairs of the CCIV.
1225C(4)
For the purposes of determining under subsection
191(2)
whether the director does not need to give notice of the interest, references in that subsection to the company are taken to be references to the CCIV, unless the reference is to the director
'
s position as director, or officer, of the company.
1225C(5)
Nothing in this section limits:
(a)
the effect sections
191
and
192
have in relation to the director of the corporate director apart from this Subdivision; or
(b)
the effect section
193
has in relation to sections
191
and
192
as those sections apply as a result of this section.
Note: Section
193
is about the interaction of sections
191
and
192
with other laws etc.
History
S 1225C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225D
RIGHT OF ACCESS TO CCIV BOOKS
CCH Note:
Section 1225D is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1225D(1)
Section
198F
applies in relation to a director of a corporate director of a CCIV as if the person were a director of the CCIV.
1225D(2)
For the purposes of subsection
(1)
, a person is taken to cease being a director of the CCIV if either of the following occurs:
(a)
the person ceases to be a director of the corporate director;
(b)
the company of which the person is a director ceases to be the corporate director of the CCIV.
History
S 1225D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225E
EXTENDED OPERATION OF SECTIONS 199A AND 199B (ABOUT INDEMNITIES AND INSURANCE)
CCH Note:
Section 1225E is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1225E(1)
The operation of sections
199A
and
199B
in relation to a CCIV and a related body corporate of a CCIV is extended by:
(a)
treating an officer of the corporate director of the CCIV as an officer of the CCIV; and
(b)
treating an auditor of the corporate director of the CCIV as an auditor of the CCIV.
Note: If the CCIV is a retail CCIV, there are additional restrictions: see section
1224N
.
1225E(2)
For the purposes of subsection
(1)
, section
199B
applies to a CCIV as if paragraph
199B(1)(b)
included a reference to section
1225
.
Note: For the duties relevant to the actual director of the CCIV, see subsection
1224D(8)
.
History
S 1225E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Employees of the corporate director
CCH Note:
Subdivision B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1225F
RETAIL CCIV
-
DUTIES OWED BY EMPLOYEES OF CORPORATE DIRECTOR
CCH Note:
Section 1225F is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1225F(1)
An employee of the corporate director of a retail CCIV must not, in performing functions and exercising powers relating to the CCIV:
(a)
make use of information acquired through being an employee of the corporate director in order to:
(i)
gain an improper advantage for the employee or another person; or
(ii)
cause detriment to members of the CCIV; or
(b)
make improper use of their position as an employee to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the CCIV.
Note: This subsection is a civil penalty provision (see section
1317E
).
1225F(2)
A person must not intentionally or recklessly contravene, or be involved in a contravention of, subsection
(1)
.
Duties under this section prevail in case of conflict
1225F(3)
If there is a conflict between a duty owed by an employee of the corporate director of a retail CCIV under this section and a duty owed by the employee under Part
2D.1
, the duty owed under this section prevails.
Interaction with other laws etc.
1225F(4)
Subsection
(1)
:
(a)
has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b)
does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph
(a)
.
History
S 1225F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 4
-
Compliance plan for retail CCIVs
CCH Note:
Division 4 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 4 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Documenting the compliance plan
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226
REQUIREMENT FOR COMPLIANCE PLAN
CCH Note:
Section 1226 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226(1)
A retail CCIV must have a compliance plan.
Note: A copy of the compliance plan must be lodged with ASIC with the application to register a CCIV that is to be a retail CCIV: see subsection
1222A(6)
.
1226(2)
A wholesale CCIV is not required to have a compliance plan.
1226(3)
A CCIV must lodge a copy of its compliance plan with ASIC within 14 days of becoming a retail CCIV. The copy must be signed by all the directors of the corporate director.
Note: Section
1222J
defines
retail CCIV
.
1226(4)
An offence based on subsection
(3)
is an offence of strict liability.
History
S 1226 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226A
1226A
CONTENTS OF THE COMPLIANCE PLAN
CCH Note:
Section 1226A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
The compliance plan of a retail CCIV must set out adequate measures that the corporate director is to apply in fulfilling its responsibilities in relation to the CCIV to ensure compliance with this Act and the CCIV
'
s constitution.
History
S 1226A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226B
COMPLIANCE PLAN MAY INCORPORATE PROVISIONS FROM ANOTHER CCIV
'
s PLAN
CCH Note:
Section 1226B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226B(1)
The compliance plan of a retail CCIV may be expressed to incorporate specified provisions of a compliance plan of another CCIV, provided both CCIVs have the same corporate director. The provisions may be incorporated as in force at a specified time, or as in force from time to time.
1226B(2)
The specified provisions, as in force at the specified time, or as in force from time to time (as the case requires) are taken to be included in the plan.
History
S 1226B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226C
ASIC MAY REQUIRE FURTHER INFORMATION ABOUT COMPLIANCE PLAN
CCH Note:
Section 1226C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226C(1)
ASIC may give the corporate director of a retail CCIV a direction, in writing, to give ASIC information about the arrangements contained in the compliance plan. The direction must specify the period (which must be at least 14 days after the direction is given) within which the corporate director must give the information.
1226C(2)
The corporate director must comply with the direction within the period specified.
1226C(3)
An offence based on subsection
(2)
is an offence of strict liability.
History
S 1226C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226D
CHANGING THE COMPLIANCE PLAN
CCH Note:
Section 1226D is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Corporate director
'
s powers
1226D(1)
The corporate director of a CCIV may modify the CCIV
'
s compliance plan or repeal it and replace it with a new compliance plan.
ASIC may require modifications
1226D(2)
ASIC may give the corporate director of a retail CCIV a direction, in writing, to modify the CCIV
'
s compliance plan, as set out in the direction, to ensure that the plan is consistent with section
1226A
. The direction must specify the period (which must be at least 14 days after the direction is given) within which the corporate director must make the modification.
1226D(3)
The corporate director must comply with the direction within the period specified.
Lodgement of modification or new plan
1226D(4)
The corporate director must lodge with ASIC acopy of a modification of the CCIV
'
s compliance plan or of a new compliance plan within 14 days after the modification is made or the old plan is repealed. The copy must be signed by all the directors of the corporate director.
1226D(5)
An offence based on subsection
(3)
or
(4)
is an offence of strict liability.
History
S 1226D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226E
ASIC MAY REQUIRE CONSOLIDATION OF COMPLIANCE PLAN TO BE LODGED
CCH Note:
Section 1226E is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226E(1)
ASIC may give the corporate director of a retail CCIV a direction, in writing, to lodge a consolidated copy of the CCIV
'
s compliance plan with ASIC. The direction must specify the period (which must be at least 14 days after the direction is given) within which the corporate director must lodge the consolidation.
1226E(2)
The consolidation must set out:
(a)
the plan as modified to the time of lodgement; and
(b)
if required by ASIC
'
s direction
-
the full text of provisions taken to be included in the plan by subsection
1226B(2)
.
1226E(3)
The corporate director must comply with the direction within the period specified in the notice.
1226E(4)
An offence based on subsection
(3)
is an offence of strict liability.
History
S 1226E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Auditing the compliance plan
CCH Note:
Subdivision B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226F
ENGAGING AUDITOR
CCH Note:
Section 1226F is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226F(1)
The corporate director of a retail CCIV must ensure that at all times a registered company auditor, an audit firm or an authorised audit company is engaged to audit compliance with the CCIV
'
s compliance plan in accordance with this section. This auditor, firm or company is referred to as the
auditor of the compliance plan
.
1226F(2)
An offence based on subsection
(1)
is an offence of strict liability.
1226F(3)
A person is not eligible to act as the individual auditor, lead auditor or review auditor of a CCIV
'
s compliance plan if the person is:
(a)
the corporate director; or
(b)
an associate of the corporate director; or
(c)
a person who holds money or property of the CCIV; or
(d)
an associate of a person covered by paragraph
(c)
; or
(e)
the auditor of the corporate director
'
s financial statements.
1226F(4)
However:
(a)
the auditor of the compliance plan and the auditor of the corporate director
'
s financial statements may work for the same firm of auditors or audit company; and
(b)
the lead auditor or review auditor of the compliance plan (on the one hand) and the lead auditor or review auditor of the corporate director
'
s financial statements (on the other hand) may work for the same firm of auditors or audit company.
1226F(5)
This Subdivision does not prevent the corporate director from arranging for the auditor of the compliance plan to carry out audits in addition to those required by this Subdivision.
History
S 1226F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226G
AUDIT AND AUDIT REPORT
CCH Note:
Section 1226G is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226G(1)
Within 3 months after the end of a financial year of the retail CCIV, the auditor of the compliance plan must:
(a)
examine the CCIV
'
s compliance plan; and
(b)
carry out:
(i)
if the CCIV has only had one corporate director during the financial year
-
an audit of the corporate director
'
s compliance with the compliance plan during the financial year; or
(ii)
if the CCIV has had more than one corporate director during the financial year
-
an audit of each corporate director
'
s compliance with the compliance plan during that part of the financial year when it was the CCIV
'
s corporate director; and
(c)
give to the CCIV
'
s current corporate director a report that states whether, in the auditor
'
s opinion:
(i)
the corporate director, or each corporate director, complied with the CCIV
'
s compliance plan during the financial year or that part of the financial year when it was the CCIV
'
s corporate director; and
(ii)
the plan continues to meet the requirements of this Division.
1226G(2)
The auditor of the compliance plan:
(a)
has a right of access at all reasonable times to the books of the CCIV; and
(b)
may require an officer of the corporate director to give the auditor information and explanations for the purposes of the audit.
1226G(3)
An officer of the corporate director must:
(a)
allow the auditor of the compliance plan to have access to the books of the CCIV; and
(b)
give the auditor information or an explanation required under subsection
(2)
; and
(c)
otherwise assist the conduct of the audit.
1226G(4)
The corporate director must lodge the auditor
'
s report under subsection
(1)
with ASIC at the same time as the financial statements and reports in respect of the CCIV are to be lodged with ASIC (see sections
292
,
319
and
1232C
).
1226G(5)
The auditor of the compliance plan has qualified privilege in respect of:
(a)
a statement made in a report under subsection
(1)
; or
(b)
a notification to ASIC under any of the following:
(i)
paragraph
1226H(1)(c)
;
(ii)
paragraph
1226H(2)(c)
;
(iii)
paragraph
1226H(3)(d)
.
1226G(6)
An offence based on subsection
(1)
,
(3)
or
(4)
is an offence of strict liability.
History
S 1226G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226H
CONTRAVENTIONS BY AUDITOR
CCH Note:
Section 1226H is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Contravention by individual auditor
1226H(1)
An individual auditor conducting an audit of a compliance plan contravenes this subsection if:
(a)
the auditor is aware of circumstances that:
(i)
the auditor has reasonable grounds to suspect amount to a contravention of this Act; or
(ii)
amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection
(7)
); or
(iii)
amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and
(b)
if subparagraph
(a)(i)
applies:
(i)
the contravention is a significant one; or
(ii)
the contravention is not a significant one and the auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor
'
s report or bringing it to the attention of the directors; and
(c)
the auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.
Contravention by audit company
1226H(2)
An audit company conducting an audit of a compliance plan contravenes this subsection if:
(a)
the lead auditor for the audit is aware of circumstances that:
(i)
the lead auditor has reasonable grounds to suspect amount to a contravention of this Act; or
(ii)
amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection
(7)
); or
(iii)
amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and
(b)
if subparagraph
(a)(i)
applies:
(i)
the contravention is a significant one; or
(ii)
the contravention is not a significant one and the lead auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor
'
s report or bringing it to the attention of the directors; and
(c)
the lead auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.
Contravention by lead auditor
1226H(3)
A person contravenes this subsection if:
(a)
the person is the lead auditor for an audit of a compliance plan; and
(b)
the person is aware of circumstances that:
(i)
the person has reasonable grounds to suspect amount to a contravention of this Act; or
(ii)
amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection
(7)
); or
(iii)
amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and
(c)
if subparagraph
(b)(i)
applies:
(i)
the contravention is a significant one; or
(ii)
the contravention is not a significant one and the person believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor
'
s report or bringing it to the attention of the directors; and
(d)
the person does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.
Significant contraventions
1226H(4)
In determining for the purposes of this section whether a contravention of this Act is a significant one, have regard to:
(a)
the level of penalty provided for in relation to the contravention; and
(b)
the effect that the contravention has, or may have, on:
(i)
the overall financial position of a sub-fund of the CCIV; or
(ii)
the adequacy of the information available about the overall financial position of a sub-fund of the CCIV; and
(c)
any other relevant matter.
1226H(5)
Without limiting paragraph
(4)(a)
, a penalty provided for in relation to a contravention of a provision of Part
2M.2
or
2M.3
includes a penalty for failing to take reasonable steps to comply with, or to secure compliance with, that provision imposed on each of the following:
(a)
the corporate director, because of the operation of sections
344
and
1232T
;
(b)
a director of the corporate director, because of the operation of sections
344
and
1232T
.
Fault-based offence
1226H(6)
A person commits an offence if the person contravenes subsection
(1)
,
(2)
or
(3)
.
Person involved in audit
1226H(7)
In this section:
person involved in the conduct of an audit
means:
(a)
the auditor; or
(b)
the lead auditor for the audit; or
(c)
the review auditor for the audit; or
(d)
a professional member of the audit team for the audit; or
(e)
any other person involved in the conduct of the audit.
History
S 1226H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226J
REMOVAL AND RESIGNATION OF AUDITORS
CCH Note:
Section 1226J is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Removal of auditor by corporate director
1226J(1)
The corporate director of a retail CCIV:
(a)
must remove the auditor of the compliance plan if the auditor becomes ineligible under subsection
1226F(3)
to act as auditor of the compliance plan; and
(b)
may, with ASIC
'
s written consent, remove the auditor of the compliance plan.
1226J(2)
An offence based on paragraph
(1)(a)
is an offence of strict liability.
Resignation of auditor
1226J(3)
The auditor of the compliance plan may resign by written notice to the corporate director if:
(a)
the auditor:
(i)
applies to ASIC in writing for its consent to the resignation; and
(ii)
gives the corporate director written notice of the application at or about the same time as applying to ASIC; and
(b)
ASIC consents to the resignation.
1226J(4)
As soon as practicable after receiving the application, ASIC must notify the auditor and the corporate director whether it consents to the resignation.
1226J(5)
A statement by the auditor in the application or in answer to an inquiry by ASIC relating to the reasons for the application:
(a)
is not admissible in evidence in any civil or criminal proceedings against the auditor (other than proceedings for a contravention of section
1308
); and
(b)
may not be made the ground of a prosecution (other than a prosecution for a contravention of section
1308
), action or suit against the auditor.
A certificate by ASIC that the statement was made in the application, or in answer to an inquiry by ASIC, is conclusive evidence that the statement was so made.
1226J(6)
The auditor
'
s resignation takes effect on the later of:
(a)
the day (if any) specified in the notice of resignation; or
(b)
the day ASIC consents to the resignation; or
(c)
the day (if any) fixed by ASIC for the purpose.
History
S 1226J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1226K
ACTION ON CHANGE OF AUDITOR OF COMPLIANCE PLAN
CCH Note:
Section 1226K is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1226K(1)
If the auditor of the compliance plan of a retail CCIV changes, the corporate director must, within 7 days and in the prescribed form, ask ASIC to alter the record of the CCIV
'
s registration to show the name of the new auditor as the auditor of the CCIV
'
s compliance plan. ASIC must comply with the request if the change complies with this Act.
1226K(2)
An offence based on subsection
(1)
is an offence of strict liability.
History
S 1226K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 5
-
Member protection
CCH Note:
Division 5 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 5 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Related party transactions by retail CCIVs to be approved at sub-fund level
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227
APPLICATION OF CHAPTER 2E TO RETAIL CCIVs
CCH Note:
Section 1227 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227(1)
Subject to this Part, Chapter
2E
applies:
(a)
to a retail CCIV in the same way as it applies to a public company; and
(b)
to an entity a retail CCIV controls in the same way as it applies to an entity a public company controls.
1227(2)
In its application in relation to a retail CCIV, the members whose interests the rules in Chapter
2E
are designed to protect are:
(a)
if one sub-fund would be affected by the giving of the relevant financial benefit to the related party
-
the members, as a whole, of that sub-fund; or
(b)
if 2 or more sub-funds would be affected by the giving of the relevant financial benefit to the related party
-
the members, as a whole, of each such sub-fund.
1227(3)
Chapter
2E
does not apply to a wholesale CCIV.
History
S 1227 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227A
NEED FOR MEMBER APPROVAL FOR FINANCIAL BENEFIT
CCH Note:
Section 1227A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227A(1)
Section
208
applies in relation to a retail CCIV as if:
(a)
the members whose approval is required to be obtained under subparagraph
208(1)(a)(i)
were the members of the sub-fund of the CCIV that would be affected by the giving of the financial benefit; and
(b)
the member approval mentioned in paragraph
(a)
were required to be given in the way set out in sections
217
to
227
(as modified by this Part).
Note 1: For the civil and criminal liability of a person involved in a contravention of section
208
as it applies to a retail CCIV under this section, see section
209
.
Note 2: For provisions about meetings of members of sub-funds, see section
1228A
.
Note 3: Some kinds of financial benefits are prohibited by sections
199A
to
199C
. For CCIVs, those sections have an extended application: see section
1225E
.
1227A(2)
If the giving of a financial benefit would affect 2 or more sub-funds of the CCIV, paragraph
208(1)(a)
applies as if it required the CCIV or entity to:
(a)
obtain the approval of each affected sub-fund in the way mentioned in subsection
(1)
of this section; and
(b)
give the benefit within 15 months after the first such approval is given.
Exception for certain fees and indemnities payable to corporate director
1227A(3)
Subsection
208(1)
does not apply in relation to a financial benefit if:
(a)
the financial benefit is fees, or an indemnity, to be given to the corporate director by the CCIV; and
(b)
the corporate director is entitled to the fees, or the indemnity, under provisions of the constitution; and
(c)
the provisions comply with section
1224N
(about fees and indemnities must be available only in relation to the proper performance of duties).
History
S 1227A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227B
EXCEPTIONS NOT AVAILABLE FOR A RETAIL CCIV
CCH Note:
Section 1227B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227B(1)
The following provisions of Division
2
of Part
2E.1
do not apply where the financial benefit is, or is to be, given by a retail CCIV:
(a)
section
211
(which deals with remuneration and reimbursement for an officer or employee);
(b)
section
213
(which deals with small amounts given to a related party);
(c)
section
214
(which deals with financial benefits given to a closely held subsidiary).
1227B(2)
Subsection
(1)
does not affect the application of those provisions where the financial benefit is, or is to be, given by an entity the retail CCIV controls.
History
S 1227B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227C
REQUIREMENTS FOR EXPLANATORY STATEMENT TO MEMBERS
CCH Note:
Section 1227C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227C(1)
Section
219
applies to a retail CCIV as if:
(a)
the requirements in paragraphs
219(1)(c)
and
(d)
applied in relation to:
(i)
the corporate director of the CCIV; and
(ii)
each director of the corporate director of the CCIV; and
(b)
the requirement in paragraph
219(1)(e)
were a requirement to set out all other information that:
(i)
is reasonably required by members in order to decide whether or not it is in the sub-fund
'
s interests to pass the proposed resolution; and
(ii)
is known to the corporate director of the CCIV or to any of the directors of the corporate director of the CCIV.
1227C(2)
An example of the kind of information referred to in paragraph
(1)(b)
is the kind of information mentioned in subsection
219(2)
.
History
S 1227C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227D
1227D
MODIFIED REFERENCES
CCH Note:
Section 1227D is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Division
3
of Part
2E.1
of Chapter
2E
applies in relation to a retail CCIV as if:
(a)
a reference to a general meeting were instead a reference to a meeting of the members of the affected sub-fund; and
(b)
a reference to section
250D
were instead a reference to section
253B
.
History
S 1227D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227E
RELATED PARTIES OF A CCIV
CCH Note:
Section 1227E is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227E(1)
Section
228
does not apply in relation to a CCIV.
Corporate director etc
1227E(2)
The following are related parties of a CCIV:
(a)
the corporate director of the CCIV;
(b)
an entity that controls the corporate director of the CCIV.
Directors and their spouses
1227E(3)
The following persons are related parties of a CCIV:
(a)
directors of the corporate director of the CCIV;
(b)
directors (if any) of an entity that controls the corporate director of the CCIV;
(c)
if the corporate director of the CCIV is controlled by an entity that is not a body corporate
-
each of the persons making up the controlling entity;
(d)
spouses of the persons referred to in paragraphs
(a)
,
(b)
and
(c)
.
Relatives of directors and spouses
1227E(4)
The following relatives of persons referred to in subsection
(3)
are related parties of the CCIV:
(a)
parents;
(b)
children.
Entities controlled by other related parties
1227E(5)
An entity controlled by a related party referred to in subsection
(2)
,
(3)
or
(4)
is a related party of the CCIV unless the entity is also controlled by the CCIV.
Related party in previous 6 months
1227E(6)
An entity is a related party of a CCIV at a particular time if the entity was a related party of the CCIV of a kind referred to in subsection
(2)
,
(3)
,
(4)
or
(5)
at any time within the previous 6 months.
Entity has reasonable grounds to believe it will become related party in future
1227E(7)
An entity is a related party of a CCIV at a particular time if the entity believes or has reasonable grounds to believe that it is likely to become a related party of the CCIV of a kind referred to in subsection
(2)
,
(3)
,
(4)
or
(5)
at any time in the future.
Acting in concert with related party
1227E(8)
An entity is a related party of a CCIV if the entity acts in concert with a related party of the CCIV on the understanding that the related party will receive a financial benefit if the CCIV gives the entity a financial benefit.
History
S 1227E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Rights and remedies of members of a CCIV
CCH Note:
Subdivision B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227F
1227F
GROUNDS FOR COURT ORDER
CCH Note:
Section 1227F is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
In addition to the grounds in section
232
, the Court may also make an order under section
233
, in respect of a CCIV, if a matter listed in paragraph
232(a)
,
(b)
or
(c)
is contrary to the interests of the members as a whole of one or more sub-funds of the CCIV.
History
S 1227F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227G
ORDERS THE COURT CAN MAKE
CCH Note:
Section 1227G is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Court may appoint receiver etc. of any or all of a sub-fund
'
s property
1227G(1)
Paragraph
233(1)(h)
has effect in relation to a CCIV as if the reference in that paragraph to the company
'
s property were instead a reference to the property of a sub-fund of the CCIV.
Note: A receiver may only be appointed in relation to property of a particular sub-fund of a CCIV: see section
1236B
.
Order altering constitution
1227G(2)
Subsection
233(3)
applies to a CCIV as if the reference to section
136
were instead a reference to:
(a)
if the CCIV is a retail CCIV
-
section
1223D
; or
(b)
if the CCIV is a wholesale CCIV
-
the CCIV
'
s constitution.
History
S 1227G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227H
APPLYING FOR AND GRANTING LEAVE
CCH Note:
Section 1227H is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227H(1)
For the purposes of subsection
237(3)
, a person is a third party if the company is a CCIV and the person is not a related party of the CCIV.
1227H(2)
Paragraph
237(4)(a)
does not apply to a CCIV.
Note:
Related party
, in relation to a CCIV, is defined in section
1227E
.
History
S 1227H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227J
1227J
VARYING AND CANCELLING CLASS RIGHTS
CCH Note:
Section 1227J is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
In its application to a CCIV whose constitution does not set out the procedure for varying or cancelling rights attached to shares in a class of shares, subsection
246B(2)
is taken to require a special resolution of the members of the sub-fund of the CCIV to which the shares are referable, instead of a special resolution of the CCIV.
Note: Paragraphs
246B(2)(c)
and
(d)
will also require either a special resolution of members of the affected class or the written consent of members with at least 75% of the votes in the class.
History
S 1227J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227K
1227K
CERTAIN ACTIONS TAKEN TO VARY RIGHTS ETC.
CCH Note:
Section 1227K is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
If:
(a)
a CCIV has a sub-fund to which only one class of shares is referable (the
existing shares
); and
(b)
the CCIV issues new shares that are also referable to that sub-fund; and
(c)
the rights attaching to the new shares are not the same as the rights attached to the existing shares; and
(d)
the rights attaching to the new shares are not provided for in:
(i)
the CCIV
'
s constitution; or
(ii)
a notice, document or resolution that is lodged with ASIC;
the issue is taken to vary the rights attached to the existing shares.
History
S 1227K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227L
1227L
COMPANY MUST LODGE DOCUMENTS AND RESOLUTIONS WITH ASIC
CCH Note:
Section 1227L is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
Subsection
246F(3)
applies to a CCIV in the same way as it applies to a public company.
Note: Failure to comply with subsection
246F(3)
is an offence: see subsection
1311(1)
and Schedule
3
.
History
S 1227L inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision C
-
Civil liability of corporate director to members
CCH Note:
Subdivision C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1227M
CIVIL LIABILITY OF CORPORATE DIRECTOR TO MEMBERS
CCH Note:
Section 1227M is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1227M(1)
A member of a CCIV who suffers loss or damage because of conduct of the CCIV
'
s corporate director that contravenes a provision of this Chapter may recover the amount of the loss or damage by action against the corporate director whether or not the corporate director has been convicted of an offence, or has had a civil penalty order made against it, in respect of the contravention.
1227M(2)
An action under subsection
(1)
must be begun within 6 years after the cause of action arises.
1227M(3)
This section does not affect any liability that a person has under other provisions of this Act or under other laws.
History
S 1227M inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 6
-
Meetings
CCH Note:
Division 6 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 6 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Directors
'
meetings
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228
RESOLUTIONS OF CCIVs
CCH Note:
Section 1228 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228(1)
The corporate director of a CCIV may pass a resolution by the directors of the corporate director passing a resolution that:
(a)
expressly states that the resolution is passed on behalf of the corporate director in its capacity as corporate director; and
(b)
if the corporate director is the corporate director of more than one CCIV
-
expressly states the CCIV on behalf of which the resolution is passed.
1228(2)
Part
2G.1
(about directors
'
meetings) does not apply to a CCIV.
1228(3)
To avoid doubt, subsection
(2)
does not affect:
(a)
the application of Part
2G.1
to a resolution of, or a meeting of, the directors of the corporate director of a CCIV; or
(b)
the application of Part
2G.3
(about minutes and members
'
access to minutes) to a resolution passed under subsection
(1)
.
History
S 1228 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Meetings of members of CCIVs or sub-funds
CCH Note:
Subdivision B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228A
MEETINGS OF MEMBERS OF CCIVs
CCH Note:
Section 1228A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228A(1)
Parts
2G.2
(about meetings of members of companies) and
2G.3
(about minutes and members
'
access to minutes) do not apply to a CCIV or its members.
1228A(2)
Subject to the modifications set out in this Subdivision, Part
2G.4
(about meetings of members of registered managed investment schemes) applies in relation to a CCIV and its members as if:
(a)
the CCIV were a registered scheme; and
(b)
the members of the CCIV were the members of that scheme; and
(c)
the corporate director of the CCIV were the responsible entity of that scheme; and
(d)
the CCIV
'
s constitution were the scheme
'
s constitution; and
(e)
the CCIV
'
s compliance plan were the compliance plan of that scheme.
1228A(3)
Any power to prescribe, for the purposes of a provision of Part
2G.4
, a number of members of a particular registered scheme or class of scheme includes a power to prescribe, for the purposes of that provision as it applies under this section, a number of members of:
(a)
a particular CCIV; or
(b)
a particular class of CCIV.
Note: Subsections
252B(1A)
,
252L(1A)
and
252N(2A)
provide for the prescribing of numbers of members.
History
S 1228A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228B
MEETINGS OF MEMBERS OF SUB-FUNDS
CCH Note:
Section 1228B is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228B(1)
Subject to the modifications set out in this Subdivision, Part
2G.4
(about meetings of members of registered managed investment schemes) applies in relation to a sub-fund of a CCIV and the members of the sub-fund as if:
(a)
the sub-fund were a registered scheme; and
(b)
the members of the sub-fund were the members of that scheme; and
(c)
the corporate director of the CCIV were the responsible entity of that scheme; and
(d)
the CCIV
'
s constitution were the scheme
'
s constitution; and
(e)
the CCIV
'
s compliance plan were the compliance plan of that scheme.
1228B(2)
Any power to prescribe, for the purposes of a provision of Part
2G.4
, a number of members of a particular registered scheme or class of scheme includes a power to prescribe, for the purposes of that provision as it applies under this section, a number of members of:
(a)
a particular sub-fund of a CCIV; or
(b)
a particular class of sub-funds of one or more CCIVs.
Note: Subsections
252B(1A)
,
252L(1A)
and
252N(2A)
provide for the prescribing of numbers of members.
History
S 1228B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228C
1228C
AUDITORS OF SCHEME COMPLIANCE PLANS
CCH Note:
Section 1228C is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
In applying a provision of Part
2G.4
in relation to a wholesale CCIV, or a sub-fund of a wholesale CCIV, disregard any application of the provision in relation to the auditor of the scheme compliance plan.
Note: Provisions that apply in relation to the auditor of the scheme compliance plan are subsections
252G(1)
,
252H(1)
and
252T(1)
.
History
S 1228C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228D
COPY OF THE REGISTER OF MEMBERS
-
SUB-FUNDS
CCH Note:
Section 1228D is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228D(1)
Subsection
252C(3)
does not apply in relation to a CCIV or a sub-fund of a CCIV.
1228D(2)
To call a meeting of the members of a CCIV, the members requesting the meeting may ask the CCIV under section
173
for a copy of the register of members.
1228D(3)
To call a meeting of the members of a sub-fund of a CCIV, the members requesting the meeting may ask the CCIV under section
173
for a copy of so much of the register of members as relates to membership of the sub-fund.
1228D(4)
Despite paragraph
173(3)(b)
, the CCIV must, without charge, give the members requesting the meeting:
(a)
if subsection
(2)
of this section applies
-
the copy of the register; or
(b)
if subsection
(3)
of this section applies
-
so much of the register of members as relates to membership of the sub-fund.
1228D(5)
An offence based on subsection
(4)
is an offence of strict liability.
History
S 1228D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228E
MEMBERS
'
RESOLUTIONS
CCH Note:
Section 1228E is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228E(1)
Subsection
252L(1B)
applies in relation to a CCIV as if:
(a)
the requirement in paragraph
252L(1B)(c)
that the registered scheme be listed did not apply; and
(b)
the resolution is subject to a further requirement that it must not treat members of any sub-fund of the CCIV differently from members of any other sub-fund of the CCIV.
Note: The effect of paragraph
(1)(a)
is that subsection
252L(1B)
will apply to all CCIVs, including a CCIV that is a listed company.
1228E(2)
Subsection
252L(1B)
applies in relation to one or more sub-funds of a CCIV as if:
(a)
paragraph
252L(1B)(c)
did not apply; and
(b)
the resolution is subject to a further requirement that it must not affect the interests of any member of any other sub-fund of the CCIV.
Note: A CCIV that is a listed company has only one sub-fund, see section
1222N
.
History
S 1228E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228F
VOTING AT MEETINGS OF MEMBERS
CCH Note:
Section 1228F is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228F(1)
Sections
253C
and
253D
do not apply in relation to a CCIV or a sub-fund of a CCIV.
1228F(2)
At a meeting of members of a CCIV:
(a)
on a show of hands, each member has 1 vote; and
(b)
on a poll, each member has 1 vote for each dollar of the value of the total shares in the CCIV that the member holds; and
(c)
the chair has a casting vote, and also, if the chair is a member, any vote the chair has in the chair
'
s capacity as a member; and
(d)
if a share is held jointly and more than one member votes in respect of that share
-
only the vote of the member whose name appears first in the register of members counts.
1228F(3)
At a meeting of members of a sub-fund of a CCIV:
(a)
on a show of hands, each member has 1 vote; and
(b)
on a poll, each member has 1 vote for each dollar of the value of the total shares in the CCIV that:
(i)
are held by the member; and
(ii)
are referable to the sub-fund; and
(c)
the chair has a casting vote, and also, if the chair is a member, any vote the chair has in the chair
'
s capacity as a member; and
(d)
if a share that is referable to the sub-fund is held jointly and more than one member votes in respect of that share
-
only the vote of the member whose name appears first in the register of members counts.
History
S 1228F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228G
CORPORATE DIRECTOR AND ASSOCIATES CANNOT VOTE IF INTERESTED IN RESOLUTION
CCH Note:
Section 1228G is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228G(1)
Section
253E
applies in relation to a CCIV as if the associates of the corporate director of the CCIV were also the CCIV
'
s associates.
1228G(2)
Section
253E
applies in relation to a sub-fund of a CCIV as if the associates of the corporate director of the CCIV, and the CCIV
'
s associates, were also the sub-fund
'
s associates.
History
S 1228G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1228H
HOW TO WORK OUT THE VALUE OF A SHARE
CCH Note:
Section 1228H is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
1228H(1)
For the purposes of section
1228F
, the value of a share in a CCIV is the amount worked out under this section.
1228H(2)
The value of a share in a CCIV (other than a share to which subsection
(3)
,
(4)
or
(5)
applies) is the amount that the corporate director of the CCIV determines in writing to be the price that a willing but not anxious buyer would pay for the share if it was sold on the business day immediately before the day on which the poll is taken.
1228H(3)
The value of a share in a listed CCIV is the last sale price on the relevant prescribed financial market on the trading day immediately before the day on which the poll is taken.
1228H(4)
The value of a share in a retail CCIV where:
(a)
the CCIV is not listed; and
(b)
the share is redeemable; and
(c)
the share is referable to a sub-fund to which section
1230H
applies (about when a sub-fund is liquid);
is the amount that, under the constitution of the CCIV, would be paid to redeem the share on the business day immediately before the day on which the poll is taken.
1228H(5)
The value of a share in a wholesale CCIV where:
(a)
the share is redeemable; and
(b)
the share is referable to a sub-fund to which section
1230H
applies (about when a sub-fund is liquid); and
(c)
the CCIV has a provision in its constitution as to the amount to be paid for redeeming the share;
is the amount that, under the provision, would be paid to redeem the share on the business day immediately before the day on which the poll is taken.
1228H(6)
Section
253F
does not apply in relation to a CCIV or a sub-fund of a CCIV.
History
S 1228H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 7
-
Corporate contraventions
CCH Note:
Division 7 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Div 7 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
General provisions relating to establishing civil and criminal liability under Commonwealth laws
CCH Note:
Subdivision A is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1229
1229
APPLICATION OF THIS SUBDIVISION
CCH Note:
Section 1229 is modified by the ASIC Corporations (Chapter 5C
-
Miscellaneous Provisions) Instrument 2017/125.
This Subdivision applies to a CCIV in relation to all laws of the Commonwealth.
View history note
does not apply in determining whether a body corporate that is a CCIV has committed an offence.
A provision of a law of the Commonwealth (other than this Subdivision) does not apply in relation to a CCIV to the extent the provision would, apart from this subsection:
treat conduct (however described) engaged in by a person other than a CCIV as having been engaged in by the CCIV; or
treat conduct (however described) engaged in by a person in relation to another person other than a CCIV as having been engaged in by the person in relation to the CCIV; or
treat a state of mind (however described) held by a person other than a CCIV as being sufficient to show that the CCIV had the state of mind; or
done by a person other than a CCIV to be attributed to the CCIV.
Conduct engaged in by a person (other than a CCIV) is taken to have been engaged in also by a CCIV if:
in engaging in the conduct, the person met any conditions specified in column 2 of that item of the table.
Conduct engaged in by a person in relation to another person (other than a CCIV) (the
the counterparty is specified in column 1 of an item of the table in subsection
in acting on behalf of the CCIV, the counterparty met any conditions specified in column 2 of that item of the table.
Note: For example, money given to a person specified in column 1 of an item of the table in relation to a CCIV is taken to have been given to the CCIV, if the person was acting on behalf of the CCIV when they received the money.
If, for the purposes of a provision of a law of the Commonwealth, it is necessary to establish a CCIV
'
s state of mind in relation to particular conduct, it is sufficient to show that:
in relation to the CCIV engaged in the conduct on behalf of the CCIV; and
in engaging in the conduct, the person met any conditions specified in column 2 of that item of the table; and
an agent who is, or is appointed by, a receiver, or receiver and manager, of property of a sub-fund of the CCIV;
an agent who is, or is appointed by, a liquidator or provisional liquidator of a sub-fund of the CCIV;
an agent who is, or is appointed by, a trustee or other person administering a compromise or arrangement made between the CCIV and someone else.
For the purposes of this section, treat a person as acting on behalf of a CCIV if the person acted on behalf of the corporate director of the CCIV in its capacity as director of the CCIV.
a CCIV commits an offence against a law of the Commonwealth; and
the conduct constituting the offence was not engaged in by the CCIV solely as a result of an exercise of powers by:
The person who was the corporate director of the CCIV at the time of the commission of the offence is taken to also commit the offence.
The CCIV is not liable for any penalty in respect of the offence.
, an infringement notice (however described) may be given under a law of the Commonwealth to a person who was the corporate director of a CCIV for an alleged commission of an offence by the person:
the CCIV may not be given an infringement notice for the alleged commission of the offence.
the conduct constituting the contravention was not engaged in by the CCIV solely as a result of an exercise of powers by:
a civil penalty provision (within the meaning of this Act); or
a provision of a law of the Commonwealth (other than this Act), if a civil penalty may be imposed in relation to a contravention of the provision.
The person who was the corporate director of the CCIV at the time of the contravention is taken to also contravene the provision.
Note: This subsection applies whether or not a declaration of contravention by the CCIV has been made by a Court.
The CCIV is not liable for any penalty in respect of the contravention.
, an infringement notice (however described) may be given under a law of the Commonwealth to a person who was the corporate director of a CCIV for an alleged contravention by the person of a Commonwealth civil penalty provision:
the CCIV may not be given an infringement notice for the alleged contravention.
order a person to compensate a CCIV for loss or damage suffered by the CCIV if:
the CCIV contravened, or allegedly contravened, a provision covered by subsection
the person was the corporate director of the CCIV at the time of the contravention or alleged contravention; and
The order must specify the amount of the compensation.
A provision of a law of a State or Territory is covered by this subsection if a contravention of the provision is an offence, or subject to a civil penalty.
does not apply if the conduct constituting the contravention or alleged contravention was engaged in solely as a result of an exercise of powers by:
a liquidator or provisional liquidator of a sub-fund of the CCIV; or
a receiver, or receiver and manager, of the property of a sub-fund of the CCIV; or
a trustee or other person administering a compromise or arrangement made between the CCIV and someone else.
A compensation order may be enforced as if it were a judgment of the Court.
An application for a compensation order under this section may be made by any of the following:
This section does not affect any liability that a person has under any other law.
for a proven contravention
-
6 years after the contravention was proved; or
for an unproven contravention
-
6 years after the contravention or alleged contravention.
The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a compensation order.