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.6
-
EXTERNAL ADMINISTRATION AND DEREGISTRATION
History
Pt 8B.6 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 1
-
Preliminary
History
Div 1 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235
CONSTRUING TERMS AND EXPRESSIONS AFFECTED BY SUBSTITUTED REFERENCES
Terms or expressions that have a particular meaning in relation to a sub-fund
1235(1)
To avoid doubt, if:
(a)
a term or expression has a particular meaning in this Act in relation to a sub-fund of a CCIV; and
(b)
the term or expression occurs in a provision, in relation to a reference (including an implied reference) that is required by this Part to be substituted with a reference to a sub-fund;
then the meaning the term or expression has in relation to the sub-fund in the provision is the meaning referred to in paragraph
(a)
.
Note: Examples of terms or expressions that have a particular meaning in relation to a sub-fund of a CCIV include the following:
(a) contributory (see section
9
);
(b) creditor and secured creditor (see section
9
);
(c) deregister (see Division
9
of this Part);
(d) extraordinary resolution (see section
9
);
(e) member (see section
1222Q
);
(f) property (see subsection
51F(3)
);
(g) solvent and insolvent (see section
1231A
);
(h) special resolution (see section
9
).
Terms or expressions that do not have a particular meaning in relation to a sub-fund
1235(2)
If:
(a)
a term or expression has a particular meaning in this Act or in a provision of this Act in relation to a company, corporation or body corporate; and
(b)
because of a reference (including an implied reference) that is required by this Part to be substituted with a reference to a sub-fund, it is necessary to determine the meaning of the term or expression in relation to a sub-fund of a CCIV; and
(c)
the term or expression does not have a particular meaning in relation to a sub-fund of a CCIV;
then the meaning the term or expression has in relation to the sub-fund is the meaning the term or expression would have in relation to the CCIV if the CCIV had no other sub-funds.
Note: For example, the term
related entity
is defined in section
9
in relation to a body corporate, and is not defined in relation to a sub-fund of a CCIV. To determine whether a person is a related entity of a sub-fund:
(a) first, assume that the CCIV has no other sub-funds (this includes disregarding any shares held by the CCIV that are assets of other sub-funds of the CCIV); and
(b) then, apply the definition of
related entity
in section
9
to the CCIV based on that assumption.
As a result, a member of the CCIV (paragraph
(d)
of the definition of
related entity
) will only be a related entity of a sub-fund of the CCIV if the person is a member of the sub-fund.
History
S 1235 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 2
-
Arrangements and reconstructions of sub-funds
History
Div 2 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235A
1235A
OBJECT OF THIS DIVISION
The object of this Division is to provide for arrangements and reconstructions of sub-funds of CCIVs to occur in the same way that arrangements and reconstructions of Part
5.1
bodies occur.
History
S 1235A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235B
1235B
COMPROMISES ETC. NOT TO BE MADE BETWEEN 2 OR MORE SUB-FUNDS
The Court may not approve a compromise or arrangement between a CCIV and:
(a)
the creditors of 2 or more sub-funds of a CCIV; or
(b)
the members of 2 or more sub-funds of a CCIV.
Note: However, the Court may approve a further compromise or arrangement between the CCIV and another sub-fund. If this is done as part of a scheme for the amalgamation or reconstruction of a sub-fund or sub-funds, the Court may make appropriate orders: see section
1235E
.
History
S 1235B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235C
APPLYING ARRANGEMENTS AND RECONSTRUCTIONS PROVISIONS TO SUB-FUNDS
1235C(1)
If a compromise or arrangement is proposed between a CCIV and the creditors of a sub-fund or any class of them, or between a CCIV and the members of a sub-fund or any class of them, the arrangements and reconstructions provisions referred to in subsection
(2)
apply to the proposed compromise or arrangement subject to:
(a)
such modifications as are set out in this Division; and
(b)
such other modifications as are made necessary by the fact that the CCIV is proposing to enter into a compromise or arrangement relating to only one sub-fund of the CCIV.
Arrangements and reconstructions provisions
1235C(2)
The provisions (the
arrangements and reconstructions provisions
) are as follows:
(a)
Part
5.1
(other than a provision excluded by subsection
(3)
);
(b)
the other provisions of the Corporations legislation (other than a provision excluded by subsection
(3)
) to the extent to which they relate to the operation of the provisions referred to in paragraph
(a)
.
1235C(3)
For the purposes of subsection
(2)
, the provisions excluded from the arrangements and reconstructions provisions are as follows:
(a)
section
410
;
(b)
subsections
411(1A)
,
(1B)
and
(1C)
;
(c)
a provision prescribed by regulations made for the purposes of this paragraph.
Translation rules
1235C(4)
In the application of the arrangements and reconstructions provisions, those provisions apply as if the substitutions set out in the following table were made.
Substitutions to be made
|
Item
|
Column 1
If the provision
…
|
Column 2
substitute a reference to
…
|
1 |
refers to the Part
5.1
body (the
relevant body
) (whether the reference is express or implied, and (if the reference is express) whether the Part
5.1
body is referred to as a Part
5.1
body, a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table |
the sub-fund (but see subsections
(5)
and
(6)
) |
2 |
refers to the directors, or a director, of the relevant body |
each of the following: |
|
(a) |
the corporate director; |
|
(b) |
a director of the corporate director |
3 |
refers to an officer of the relevant body |
each of the following: |
|
(a) |
a director of the CCIV; |
|
(b) |
a person covered by paragraph
(b)
,
(c)
or
(d)
of the definition of
officer
of a CCIV in section
1224B
in relation to the sub-fund |
4 |
refers to shares in the relevant body |
shares referable to the sub-fund |
5 |
refers to debentures of the relevant body |
debentures referable to the sub-fund |
Note: For item 2
-
for example, the draft explanatory statement provided for in subsection
411(2)
must state any material interests of the corporate director and of the directors of the corporate director.
1235C(5)
Despite item 1 of the table in subsection
(4)
, a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).
Note 1: For example, references to the Part
5.1
body, in the context of the body as a party to a compromise or arrangement, are references to the CCIV, because the CCIV is the legal person that is a party to, and that is bound by, the compromise or arrangement.
Note 2: For example, references to the Part
5.1
body, in the context of identifying a liquidator, are references to the sub-fund, because winding up of a CCIV takes place at the sub-fund level.
1235C(6)
If a reference in a provision to the relevant body is, as a result of subsection
(5)
, taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.
History
S 1235C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235D
1235D
PERSONS NOT TO BE APPOINTED TO ADMINISTER COMPROMISE OR ARRANGEMENT
Subsection
411(7)
has effect in relation to a CCIV as if the persons referred to in that subsection included a person who holds money or property of the CCIV.
History
S 1235D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235E
PROVISIONS FOR FACILITATING RECONSTRUCTION AND AMALGAMATION OF SUB-FUNDS WITHIN A CCIV
1235E(1)
If:
(a)
a compromise or arrangement is proposed for the purposes of, or in connection with, a scheme for the reconstruction of a sub-fund or sub-funds or the amalgamation of 2 or more sub-funds; and
(b)
under the scheme, the whole or any part of the undertaking or of the property of a sub-fund concerned in the scheme (the
transferor sub-fund
) is to become a part of the undertaking or of the property of another sub-fund of the same CCIV;
the Court may by order provide for any of the matters referred to in subsection
413(1)
as if the other sub-fund were the transferee company referred to in that subsection.
1235E(2)
Nothing in this section limits the orders a Court may make under section
413
if it approves a compromise or arrangement relating to a sub-fund of a CCIV.
History
S 1235E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1235F
1235F
COURT MAY MAKE ORDER IN RELATION TO ASSETS AND LIABILITIES OF SUB-FUNDS
If a Court approves a compromise or arrangement between a CCIV and the creditors of a sub-fund or any class of them, or between a CCIV and the members of a sub-fund or any class of them, the Court may also make any order it considers appropriate in relation to the assets and liabilities of the sub-fund.
History
S 1235F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 3
-
Receivers, and other controllers, of property of sub funds
History
Div 3 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Preliminary
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236
1236
OBJECT OF THIS DIVISION
The object of this Division is to preserve the segregated application of assets of sub-funds by requiring appointments of controllers to be made separately in respect of the property of each sub-fund of the CCIV.
History
S 1236 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236A
1236A
MEANING OF PROPERTY AND RECEIVER
-
SUB-FUND OF A CCIV
In this Division:
property
, in relation to a sub-fund of a CCIV, means property in Australia or outside Australia.
receiver
, in relation to property of a sub-fund of a CCIV, includes a receiver and manager.
History
S 1236A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Appointment of controllers
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236B
APPOINTMENT OF A CONTROLLER OF PROPERTY OF A SUB-FUND OF A CCIV
1236B(1)
An appointment covered by subsection
(2)
:
(a)
may not be made in relation to all the property of a CCIV; and
(b)
may be made only in relation to property of a CCIV that is property of a particular sub-fund of the CCIV.
1236B(2)
The appointments covered by this subsection are appointments, whether made under a power contained in an instrument, or by a Court, of a person to act as a:
(a)
receiver; or
(b)
receiver and manager; or
(c)
controller;
of property of the CCIV.
Note: A Court may appoint a receiver under section
233
,
283HB
,
1101B
or
1323
.
History
S 1236B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236C
PERSONS NOT TO ACT AS RECEIVERS
1236C(1)
A person is not qualified to be appointed, and must not act, as receiver of property of a sub-fund of a CCIV if the person:
(a)
is a secured party in relation to any property (including PPSA retention of title property) of the sub-fund; or
(b)
is the corporate director of the CCIV; or
(c)
is a person who holds money or property of the CCIV; or
(d)
is an auditor of the CCIV or the sub-fund; or
(e)
is a director, secretary, senior manager or employee of a body corporate that is a secured party in relation to any property (including PPSA retention of title property) of the sub-fund; or
(f)
is not a registered liquidator; or
(g)
is a director, secretary, senior manager or employee of:
(i)
the corporate director; or
(ii)
a body corporate related to the corporate director; or
(iii)
a body corporate related to the CCIV; or
(h)
unless ASIC directs in writing that this paragraph does not apply in relation to the person in relation to the sub-fund of the CCIV
-
has at any time within the last 12 months been:
(i)
a corporate director or promoter of the CCIV; or
(ii)
a director, secretary, senior manager, employee or promoter of the corporate director or a related body corporate of the CCIV or the corporate director.
1236C(2)
Paragraph
(1)(f)
does not apply in relation to a body corporate authorised by or under a law of the Commonwealth, of a State or of a Territory to act as receiver of property of the sub-fund concerned.
1236C(3)
Section
418
does not apply to a CCIV.
1236C(4)
In this section:
senior manager
does not include a receiver and manager.
History
S 1236C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236D
1236D
NOTIFYING OF APPOINTMENT OR CESSATION OF CONTROLLER
If:
(a)
a person (the
controller
) is appointed as, or ceases to be, the controller of property of a sub-fund of a CCIV; and
(b)
one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;
the controller must, as soon as practicable, and in any event within 3 business days after the controller
'
s appointment or cessation, notify each such person in writing of the appointment or cessation.
History
S 1236D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision C
-
Application of Part 5.2 to control of property of sub-funds
History
Subdiv C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236E
APPLYING PART 5.2 ETC. TO SUB-FUNDS
1236E(1)
The controller provisions referred to in subsection
(2)
apply to a CCIV with:
(a)
the modifications set out in this Division; and
(b)
such other modifications as are made necessary by the fact that the provisions are applying to a sub-fund instead of to a corporation.
Controller provisions
1236E(2)
The provisions (the
controller provisions
) are as follows:
(a)
Part
5.2
and Division
2B
of Part
5.7B
(other than a provision excluded by subsection
(3)
);
(b)
the other provisions of the Corporations legislation (other than a provision excluded by subsection
(3)
) to the extent to which they relate to the operation of the provisions referred to in paragraph
(a)
.
1236E(3)
For the purposes of subsection
(2)
, the provisions excluded from the controller provisions are as follows:
(a)
section
416
;
(b)
section
418
;
(c)
a provision prescribed by regulations made for the purposes of this paragraph.
Note: Section
1236C
applies instead of section
418
.
Translation rules
1236E(4)
In the application of the controller provisions, those provisions apply as if the substitutions set out in the following table were made.
Substitutions to be made
|
Item
|
Column 1
If the provision
…
|
Column 2
substitute a reference to
…
|
1 |
refers to the corporation (the
relevant corporation
) in relation to whose property a controller has been, or is to be appointed (whether the reference is express or implied, and (if the reference is express) whether the corporation is referred to as a corporation, a company, a body corporate, or in some other way), and the reference is not covered by another item of this table |
the sub-fund (but see subsections
(5)
and
(6)
) |
2 |
refers to the directors, or a director, or the board of the relevant corporation |
the corporate director of the CCIV |
3 |
refers to an officer of the relevant corporation |
each of the following: |
|
(a) |
a director of the CCIV; |
|
(b) |
a person covered by paragraph
(b)
,
(c)
or
(d)
of the definition of
officer
of a CCIV in section
1224B
in relation to the sub-fund |
4 |
refers to shares in the relevant corporation |
shares referable to the sub-fund |
5 |
refers to debentures of the relevant corporation |
debentures referable to the sub-fund |
1236E(5)
Despite item 1 of the table in subsection
(4)
, a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).
1236E(6)
If a reference in a provision to the relevant corporation is, as a result of subsection
(5)
, taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.
History
S 1236E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision D
-
Modified duties and powers of receivers etc.
History
Subdiv D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236F
LIABILITY OF CONTROLLER
1236F(1)
Section
1224M
(about extended liability for acts of agents) does not apply to a person who, as agent for the CCIV, enters into possession or assumes control of any property of a sub-fund of the CCIV for the purposes of enforcing any security interest.
1236F(2)
Subsection
(1)
does not affect the application of section
419
.
History
S 1236F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236G
1236G
POWERS OF RECEIVER
If:
(a)
a receiver is appointed in respect of property of a sub-fund of a CCIV; and
(b)
one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;
the powers conferred under section
420
on the receiver are taken to include the power to instruct each such person in relation to dealing with the assets of the sub-fund.
History
S 1236G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236H
1236H
CONTROLLER MAY REQUIRE REPORTS RELATING TO OTHER SUB-FUNDS IF NECESSARY
The affairs of a CCIV about which a controller of property of a sub-fund of the CCIV may require a report under section
430
include:
(a)
the affairs of the sub-fund; and
(b)
the affairs of any other sub-fund, to the extent the information about those affairs is required by the controller for the purpose of attaining the objectives for which the controller was appointed.
History
S 1236H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236J
1236J
CONTROLLER MAY INSPECT BOOKS OF CCIV
The books of a CCIV that a controller of property of a sub-fund of the CCIV is entitled under section
431
to inspect at any reasonable time include:
(a)
the allocation register kept by the corporate director under section
1233C
(about the allocation of assets and liabilities to sub-funds); and
(b)
any books of the CCIV, to the extent the inspection of those books is necessary for the purpose of attaining the objectives for which the controller was appointed.
Note: A person entitled to inspect a book may make copies or take extracts: see subsection
1300(3)
.
History
S 1236J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision E
-
Other modifications
History
Subdiv E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236K
1236K
APPLICATION OF SUB-FUND PROPERTY TO MEET CERTAIN PRIORITY PAYMENTS
If a receiver is appointed in respect of property of a sub-fund of a CCIV, the assets of the sub-fund may be applied for the purposes of paying debts or amounts that, under section
433
, must be paid in priority to any claim for principal or interest in respect of the debentures referred to in that section.
History
S 1236K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236L
TRANSFER OF BOOKS TO ASIC ETC.
1236L(1)
Before ASIC destroys, in accordance with subsection
422D(9)
, books relating to the control of property of a sub-fund of a CCIV, ASIC must notify the CCIV that it intends to do so.
1236L(2)
Despite subsection
422D(9)
, if:
(a)
ASIC retains books under subsection
422D(8)
in relation to the control of property of a sub-fund of a CCIV; and
(b)
the retention period mentioned in that subsection ends; and
(c)
the CCIV, by resolution of the corporate director, directs ASIC not to destroy the books;
ASIC must, as soon as practicable, transfer possession or control of those books to the CCIV.
History
S 1236L inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 4
-
Administration and restructuring
History
Div 4 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236M
1236M
PART 5.3A DOES NOT APPLY TO A CCIV
Part
5.3A
(about the administration of a company
'
s affairs with a view to executing a deed of company arrangement) does not apply to a CCIV or a sub-fund of a CCIV.
History
S 1236M inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1236N
1236N
PART 5.3B DOES NOT APPLY TO A CCIV
Part
5.3B
(about restructuring a company) does not apply to a CCIV or a sub-fund of a CCIV.
History
S 1236N inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 5
-
Winding up of sub funds
History
Div 5 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Preliminary
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237
1237
OBJECT OF THIS DIVISION
The object of this Division is to preserve the segregated application of assets of sub-funds by requiring a separate winding up procedure for each sub-fund.
History
S 1237 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237A
1237A
NO WINDING UP OF A CCIV
A CCIV cannot be wound up, or placed in liquidation.
Note: If a CCIV has no sub-funds, ASIC must deregister the CCIV: see section
1239K
.
History
S 1237A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Application of winding up provisions to winding up of sub-funds
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237B
APPLYING WINDING UP PROVISIONS TO SUB-FUNDS
1237B(1)
An application to wind up a sub-fund of a CCIV, and the winding up of a sub-fund of a CCIV, are regulated:
(a)
by the provisions of this Division; and
(b)
by the winding up provisions referred to in subsection
(2)
, applying, so far as they are capable of so doing, subject to:
(i)
such modifications as are set out in this Division; and
(ii)
such other modifications as are made necessary by the fact that the provisions are applying to a sub-fund instead of to a company.
Winding up provisions
1237B(2)
The provisions (the
winding up provisions
) are as follows:
(a)
sections
53
and
91
, paragraph
233(1)(a)
, Parts
5.4
,
5.4A
,
5.4B
,
5.5
and
5.6
, Divisions
2
and
2A
of Part
5.7B
and Schedule
2
(other than a provision excluded by subsection
(3)
);
(b)
the other provisions of the Corporations legislation (other than a provision excluded by subsection
(3)
) to the extent to which they relate to the operation of the provisions referred to in paragraph
(a)
.
Note 1: Parts
5.8
and
5.9
also apply to CCIVs with modifications: see Divisions
8
and
9
of this Part.
Note 2: Part
5.4C
does not apply to CCIVs or sub-funds of CCIVs.
1237B(3)
For the purposes of subsection
(2)
, the provisions excluded from the winding up provisions are as follows:
(a)
section
459T
;
(b)
Subdivision
B
of Division
3
of Part
5.5
(about simplified liquidation process);
(c)
Division
8
of Part
5.6
(about pooling);
(d)
a provision prescribed by regulations made for the purposes of this paragraph.
Translation rules
1237B(4)
In the application of the winding up provisions, those provisions apply as if the substitutions set out in the following table were made.
Substitutions to be made
|
Item
|
Column 1
If the provision
…
|
Column 2
substitute a reference to
…
|
1 |
refers to the company (the
relevant company
) that is being, is to be, or has been wound up, or is the subject of an application for a winding up order (whether the reference is express or implied, and (if the reference is express) whether the company is referred to as a company, a bodycorporate, a corporation, or in some other way), and the reference is not covered by another item of this table |
the sub-fund (but see subsections
(5)
and
(6)
) |
2 |
refers to the directors, or a director, or the board of the relevant company |
the corporate director of the CCIV |
3 |
refers to an officer of the relevant company |
each of the following: |
|
(a) |
a director of the CCIV; |
|
(b) |
a person covered by paragraph
(b)
,
(c)
or
(d)
of the definition of
officer
of a CCIV in section
1224B
in relation to the sub-fund |
4 |
refers to shares in the relevant company |
shares referable to the sub-fund |
5 |
refers to debentures of the relevant company |
debentures referable to the sub-fund |
6 |
refers to a general meeting, in relation to the relevant company (other than a reference to the company in general meeting) |
a members
'
meeting of the sub-fund (see section
1228B
) |
7 |
refers to the relevant company in general meeting |
the members of the sub-fund at a members
'
meeting of the sub-fund |
8 |
refers to the incorporation of the relevant company |
the registration of the sub-fund |
Note 1: Item 1
-
for example, in paragraph
459P(1)(b)
there is an implied reference to
"
of the company
"
after
"
a creditor
"
, and in paragraph
459P(1)(c)
there is an implied reference to
"
of the company
"
after
"
a contributory
"
. For a CCIV, both these implied references would be substituted with implied references to
"
of the sub-fund
"
.
Note 2: Item 4
-
for example, if the winding up of a sub-fund of a CCIV commences, section
468A
will operate to void a transfer of shares in the CCIV only if the shares are referable to the sub-fund.
Note 3: Item 7
-
for example, subsection
495(1)
requires the members of the sub-fund to appoint a liquidator or liquidators.
1237B(5)
Despite item 1 of the table in subsection
(4)
, a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).
Note 1: For example, the references in paragraphs
459P(1)(a)
and
462(2)(a)
to
"
the company
"
are taken to be references to
"
the CCIV
"
because an application to the Court would be made by the legal person that is the CCIV.
Note 2: For example, the reference in subsection
461(2)
to
"
A company must lodge
"
is taken to be a reference to
"
The CCIV must lodge
"
because the lodging of documents with ASIC would be done by the legal person that is the CCIV.
Note 3: For example, the reference in section
493
to the
"
corporate state and corporate powers of the company
"
is a reference to the
"
corporate state and corporate powers of the CCIV
"
.
1237B(6)
If a reference in a provision to the relevant company is, as a result of subsection
(5)
, taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.
Note: For example, the first reference in paragraph
471B(a)
to
"
the company
"
is a reference to the CCIV, because only a legal person can be a party to a proceeding in a court. However, the operation of section
471B
to prevent proceedings against the CCIV is confined to proceedings that relate to the sub-fund.
History
S 1237B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237C
1237C
REFERENCES TO DEBTS ETC. OF A SUB-FUND
For the purposes of the application of the winding up provisions, as those provisions apply subject to item 1 of the table in subsection
1237B(4)
:
(a)
a debt of the CCIV is taken to be a debt of a sub-fund to the extent (if any) that the debt is a liability of the sub-fund; and
(b)
a claim against the CCIV is taken to be a claim against a sub-fund of the CCIV to the extent (if any) that the claim is a liability of the sub-fund.
Note: A reference to a liability of a sub-fund of a CCIV includes debts and claims: see section
1233A
.
History
S 1237C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision C
-
Winding up of a sub-fund in insolvency
History
Subdiv C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237D
1237D
WHEN A SUB-FUND IS PRESUMED TO BE INSOLVENT
Paragraph
459C(2)(a)
is taken to be satisfied in relation to a sub-fund of a CCIV if:
(a)
the CCIV failed (as defined by section
459F
) to comply with a statutory demand; and
(b)
the failure affects the sub-fund (see subsection
1237E(3)
).
History
S 1237D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237E
STATUTORY DEMAND
-
CREDITOR MAY SERVE DEMAND ON CCIV
1237E(1)
A person may serve a statutory demand on a CCIV under section
459E
.
1237E(2)
However, subsection
459E(2)
applies to a statutory demand served on a CCIV as if it also required the demand to specify, in relation to each debt to which the demand relates:
(a)
the sub-fund or sub-funds of the CCIV of which the debt is a liability; and
(b)
if the debt is a liability of 2 or more sub-funds of the CCIV
-
the proportion of the debt allocated to each sub-fund at the time the demand is served.
1237E(3)
Whether a CCIV has failed to comply with a statutory demand is determined under section
459F
. If the CCIV has failed to comply with a statutory demand, the failure affects each sub-fund specified in the demand.
Note: The sub-funds specified may be affected by a variation made by the Court under subsection
1237H(3)
.
History
S 1237E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237F
STATUTORY DEMAND
-
CCIV MAY APPLY TO SET ASIDE DEMAND
1237F(1)
A CCIV may apply to the Court under section
459G
for an order setting aside a statutory demand served on the CCIV.
1237F(2)
Division
3
of Part
5.4
applies in relation to the application subject to the modifications set out in sections
1237G
to
1237J
.
History
S 1237F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237G
STATUTORY DEMAND
-
DETERMINING APPLICATION TO SET ASIDE WHERE THERE IS A DISPUTE OR OFFSETTING CLAIM
1237G(1)
Paragraph
459H(1)(b)
applies in relation to a debt to which a demand relates only if the CCIV has an offsetting claim that is an asset of the sub-fund of which the debt or a proportion of the debt (as the case requires) is a liability.
1237G(2)
Subsection
459H(2)
has effect as if it required the Court to calculate a separate substantiatedamount in relation to each sub-fund specified in the statutory demand.
1237G(3)
For the purposes of the calculation:
(a)
the amount of the debt is to be determined having regard only to a debt or a proportion of a debt (as the case requires) that is a liability of the sub-fund; and
(b)
the amount of an offsetting claim is to be determined having regard only to so much of an offsetting claim as is an asset of the sub-fund.
History
S 1237G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237H
STATUTORY DEMAND
-
DETERMINING APPLICATION TO SET ASIDE WHERE THERE IS A DISPUTE ABOUT THE SUB-FUND
1237H(1)
This section applies if:
(a)
a CCIV applies under section
459G
for an order setting aside a statutory demand served on the CCIV; and
(b)
within the statutory period referred to in subsection
459G(3)
:
(i)
a notice complying with subsection
(6)
is filed with the Court; and
(ii)
a copy of the notice is served on the person who served the demand on the CCIV; and
(c)
the information specified in the notice about a debt is not the same as the information specified in the demand about the debt; and
(d)
section
459H
does not apply.
1237H(2)
The Court must determine the following information for the debt:
(a)
the sub-fund or sub-funds of the CCIV of which the debt is a liability;
(b)
if the debt is a liability of 2 or more sub-funds of the CCIV
-
the proportion of the debt allocated to each sub-fund.
1237H(3)
If the information determined by the Court under subsection
(2)
is different from the information specified in the demand, the Court may make an order:
(a)
varying the demand as specified in the order; and
(b)
declaring the demand to have had effect, as so varied, as from when the demand was served on the CCIV.
The order may be made subject to conditions.
1237H(4)
This section has effect subject to section
459J
.
1237H(5)
Section
459L
has effect as if the orders referred to in that section included an order under this section.
1237H(6)
A notice complies with this subsection in relation to a statutory demand if the notice specifies the following information for each debt to which the demand relates:
(a)
the sub-fund or sub-funds of the CCIV of which the debt is a liability;
(b)
if the debt is a liability of 2 or more sub-funds of the CCIV
-
the amount of the debt allocated to each sub-fund.
History
S 1237H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237J
SUBSTITUTION OF SUB-FUND WHERE STATUTORY DEMAND NOT RELIED ON
1237J(1)
This section applies if:
(a)
a creditor applies under section
459P
for a sub-fund of the CCIV to be wound up in insolvency; and
(b)
the application does not rely on a failure by the CCIV to comply with a statutory demand.
1237J(2)
The Court may by order substitute, in an application under section
459P
, the sub-fund or sub-funds of the CCIV in respect of which the application is made.
1237J(3)
The Court may only make an order if:
(a)
a notice complying with subsection
(5)
is filed with the Court; and
(b)
the Court thinks it is appropriate to do so.
1237J(4)
After the order is made, the application has effect, and may be proceeded with, as if the substituted sub-fund or sub-funds had been the original sub-fund or sub-funds.
1237J(5)
A notice complies with this subsection in relation to a creditor if the notice specifies the following information for each of the creditor
'
s debts:
(a)
the sub-fund or sub-funds of the CCIV of which the debt is a liability;
(b)
if the debt is a liability of 2 or more sub-funds of the CCIV
-
the amount of the debt allocated to each sub-fund.
History
S 1237J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237K
1237K
DECLARATION OF SOLVENCY
A written declaration under section
494
about the affairs of a sub-fund may be made by the corporate director of the CCIV.
History
S 1237K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision D
-
Modified duties and powers of liquidator of a sub-fund
History
Subdiv D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237L
1237L
DISQUALIFICATION OF LIQUIDATOR
Paragraph
532(2)(c)
has effect in relation to a sub-fund of a CCIV as if the persons referred to in that paragraph included the following:
(a)
a director of the corporate director of the CCIV;
(b)
a person (if any), other than the CCIV, who holds assets of the sub-fund.
History
S 1237L inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237M
NOTIFYING OF APPOINTMENT, RESIGNATION OR REMOVAL OF LIQUIDATOR
1237M(1)
If:
(a)
a liquidator of a sub-fund of a CCIV is appointed, resigns or is removed from office; and
(b)
one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;
the liquidator must, as soon as practicable, and in any event within 3 business days after the liquidator
'
s appointment, resignation or removal, notify each such person in writing of the appointment, resignation or removal.
1237M(2)
In this section:
liquidator
includes a provisional liquidator.
History
S 1237M inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237N
DUTIES AND POWERS OF LIQUIDATOR
Liquidator
'
s powers relate only to the sub-fund
1237N(1)
The functions and powers of a liquidator of a sub-fund of a CCIV:
(a)
include functions and powers conferred on the liquidator of a sub-fund of a CCIV by a provision of this Chapter; and
(b)
to the extent those functions and powers are conferred on the liquidator by the winding up provisions referred to in subsection
1237B(2)
, as those provisions apply under this Division, extend only to matters that relate solely to the carrying on of the business of the sub-fund.
1237N(2)
However, the books of a CCIV that a liquidator of a sub-fund is entitled under subsection
477(3)
to inspect at any reasonable time include:
(a)
the allocation register kept by the corporate director under section
1233C
(about the allocation of assets and liabilities to sub-funds); and
(b)
any other books of the CCIV, to the extent the inspection of those books is necessary for the liquidator to perform or exercise the functions or powers of that office.
Note 1: A person entitled to inspect a book may make copies or take extracts: see subsection
1300(3)
.
Note 2: A provisional liquidator also has the power under subsection
477(3)
: see paragraph
472(4)(b)
.
Liquidator may instruct person who holds assets of a sub-fund
1237N(3)
If:
(a)
a liquidator of a sub-fund of a CCIV is appointed; and
(b)
one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;
the powers conferred on the liquidator are taken to include the power to instruct each such person in relation to dealing with the assets of the sub-fund.
Liquidator may inspect certain books
1237N(4)
If:
(a)
a liquidator of a sub-fund of a CCIV is appointed; and
(b)
one or more persons, other than the CCIV, holds assets of the sub-fund of the CCIV;
the liquidator is entitled to inspect at any reasonable time books of each such person, to the extent the inspection of those books is necessary for the liquidator to perform or exercise the functions or powers of that office.
Note: A person entitled to inspect a book may make copies or take extracts: see subsection
1300(3)
.
Definitions
1237N(5)
In this section:
liquidator
includes a provisional liquidator.
History
S 1237N inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237P
RETENTION AND DESTRUCTION OF BOOKS
1237P(1)
The following provisions do not apply in relation to a winding up of a sub-fund:
(a)
subsection
70-35(3)
of Schedule
2
(about when an external administrator is not required to retain books);
(b)
subsection
70-35(4)
of Schedule
2
(about when an external administrator may destroy books).
Liquidator must transfer books to CCIV
1237P(2)
If:
(a)
books are retained under section
70-35
of Schedule
2
by a liquidator of a sub-fund in relation to a winding up of the sub-fund; and
(b)
the retention period mentioned in subsection
70-35(1)
of that Schedule ends; and
(c)
before the end of the retention period, the CCIV requests the liquidator by notice in writing to transfer possession or control of the books to the CCIV;
the liquidator must, as soon as practicable after the end of the retention period, transfer possession or control of those books to the CCIV.
1237P(3)
Otherwise, the books may be destroyed at the end of the retention period.
Offence
1237P(4)
A person commits an offence if:
(a)
the person is subject to a requirement under subsection
(2)
; and
(b)
the person intentionally or recklessly fails to comply with the requirement.
History
S 1237P inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision E
-
Modified duties and powers of officers of corporate director and CCIV
History
Subdiv E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237Q
OFFICERS OF CORPORATE DIRECTOR TO HELP LIQUIDATOR
1237Q(1)
Section
530A
applies as if each of the following were an officer of a CCIV:
(a)
an officer of the CCIV;
(b)
an officer of the corporate director of the CCIV;
(c)
an officer of a former corporate director of the CCIV.
1237Q(2)
Paragraph
(1)(a)
is included for the avoidance of doubt.
1237Q(3)
In this section:
officer
includes former officer.
History
S 1237Q inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237R
CORPORATE DIRECTOR MAY RETAIN CERTAIN BOOKS
1237R(1)
The corporate director of a CCIV is entitled, as against a liquidator of a sub-fund of the CCIV, to retain possession of books of the CCIV that relate to:
(a)
the business or affairs of the CCIV as a whole; or
(b)
the business or affairs of other sub-funds of the CCIV.
Note: Books that the corporate director is not entitled to retain must be delivered to the liquidator: see section
530A
.
1237R(2)
Subsection
(1)
applies despite subsection
530B(1)
.
1237R(3)
In this section:
liquidator
includes a provisional liquidator.
History
S 1237R inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237S
1237S
CORPORATE DIRECTOR MAY ACCESS CERTAIN BOOKS
The corporate director of a CCIV is entitled to inspect at any reasonable time books relating to the winding up of a sub-fund of the CCIV, to the extent the inspection of those books is necessary for the corporate director to perform or exercise the functions or powers of that office.
Note: A person entitled to inspect a book may make copies or take extracts: see subsection
1300(3)
.
History
S 1237S inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237T
CORPORATE DIRECTOR MAY DIRECT ASIC NOT TO DESTROY BOOKS
1237T(1)
Before ASIC destroys, in accordance with subsection
70-31(9)
of Schedule
2
, books relating to the winding up of a sub-fund of a CCIV, ASIC must notify the CCIV that it intends to do so.
1237T(2)
Despite subsection
70-31(9)
of Schedule
2
, if:
(a)
ASIC retains books under subsection
70-31(8)
of Schedule
2
in relation to the winding up of a sub-fund of a CCIV; and
(b)
the retention period mentioned in that subsection ends; and
(c)
the CCIV, by resolution of the corporate director, directs ASIC not to destroy the books;
ASIC must, as soon as practicable, transfer possession or control of those books to the CCIV.
History
S 1237T inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237U
MANDATORY EXAMINATION
1237U(1)
Section
596A
applies in relation to a CCIV as if the following were officers of the CCIV:
(a)
a natural person who is an officer of the CCIV;
(b)
a natural person who is a director of the corporate director of the CCIV.
1237U(2)
Paragraph
(1)(a)
is included for the avoidance of doubt.
History
S 1237U inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237V
1237V
COURT MAY MAKE ORDER IMPOSING LIABILITY ON UNLICENSED PERSON OPERATING CCIV
Where:
(a)
a sub-fund of a CCIV is being wound up; and
(b)
within the period of 4 years ending before the relation-back day, a person not meeting the requirements in subsection
1224F(1)
for the director of a CCIV operated the business and conducted the affairs of the CCIV;
the Court may, on the application of the sub-fund
'
s liquidator, order that the person is personally liable for so much of the sub-fund
'
s debts and liabilities as does not exceed an amount specified in the order.
History
S 1237V inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision F
-
Proof and ranking of claims
History
Subdiv F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237W
LIQUIDATOR MUST BE SATISFIED DEBT OR CLAIM IS A LIABILITY OF THE SUB-FUND
1237W(1)
The liquidator of a sub-fund must determine that the whole or a part of a debt of the CCIV is not admissible to proof against the sub-fund if the liquidator is satisfied that the debt or the part of the debt (as the case requires) is not a liability of the sub-fund.
1237W(2)
Such a determination does not have the effect of extinguishing the debt or the part of the debt.
History
S 1237W inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237X
DETERMINATION OF DEBTS AND CLAIMS THAT RELATE TO THE BUSINESS OF 2 OR MORE SUB-FUNDS AND ARE OF UNCERTAIN VALUE
1237X(1)
This section applies if, in the winding up of a sub-fund, the liquidator admits a debt or claim that:
(a)
is a liability of the CCIV that does not relate solely to the business of the sub-fund; and
(b)
as at the relevant date, did not bear a certain value.
Note: If the liability relates solely to the business of the sub-fund but is of uncertain value, the liquidator must estimate the value of the debt or claim (paragraph
554A(2)(a)
) or refer the question of the value of the debt or claim to the Court (paragraph
554A(2)(b)
).
1237X(2)
Section
554A
applies in relation to the debt or claim as if the value of the debt or claim that is to be estimated as at the relevant date were the value of the whole of the debt or claim (not just the proportion that is applicable to the sub-fund under subsection
1233L(2)
).
1237X(3)
However, despite subsection
554A(8)
, for the purposes of Division
6
of Part
5.6
, the amount of the debt or claim that is admissible to proof is the product of:
(a)
the value as estimated or worked out under section
554A
(as modified by this section); and
(b)
the proportion of the liability applicable to the sub-fund under subsection
1233L(2)
.
History
S 1237X inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237Y
1237Y
APPLICATION OF SUB-FUND PROPERTY
If a sub-fund of a CCIV is being wound up, the assets of the sub-fund may be applied for the purposes of paying debts and claims that, under section
556
as it applies in relation to the winding up of the sub-fund, must be paid in priority to all other unsecured debts and claims.
History
S 1237Y inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision G
-
Powers of Courts
History
Subdiv G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237Z
WARRANT IN RELATION TO BOOKS
1237Z(1)
This section applies in relation to a warrant issued by a Court under subsection
530C(2)
on application by the liquidator or provisional liquidator of a sub-fund of a CCIV.
1237Z(2)
The books of a CCIV that may be searched for under the warrant are any books of the CCIV.
1237Z(3)
The books of the CCIV that may be seized under the warrant are books of the CCIV that relate to the sub-fund.
Specified person to be in possession of warrant
1237Z(4)
When executing the warrant, the specified person must be in possession of the warrant or a copy of the warrant.
Notification of entry
1237Z(5)
Subsections
(6)
and
(7)
apply if:
(a)
the warrant is being executed in relation to premises; and
(b)
the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.
1237Z(6)
Before entering the premises under the warrant, the specified person must:
(a)
announce that the person is authorised to enter the premises; and
(b)
show the occupier or other person evidence of the person
'
s identity that:
(i)
includes a photograph of the person; and
(ii)
has not expired.
1237Z(7)
The specified person must, as soon as practicable:
(a)
make a copy of the warrant available to the occupier or other person; and
(b)
inform the occupier or other person in writing of the rights and responsibilities of the occupier or other person under this section and section
530C
.
Books to be used only for purpose of liquidation
1237Z(8)
A book of the CCIV seized under the warrant may be used only for the purpose for which it was seized.
Return of seized things
1237Z(9)
Despite subsection
530C(4)
, and subject to any contrary order of the Court, a person who has custody of property or a book because of the execution of the warrant must take reasonable steps to return the property or book to the CCIV when the property or book is no longer required to be retained for the purpose for which it was seized.
Receipts
1237Z(10)
If property or a book is seized under the warrant, the specified person must provide a receipt for the property or book.
1237Z(11)
If 2 or more books or items of property are seized, they may be covered by the one receipt.
History
S 1237Z inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision H
-
Recovering property
History
Subdiv H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237ZA
1237ZA
PRESUMPTIONS TO BE MADE IN RECOVERY PROCEEDINGS
A reference in section
588E
to financial records a company is required by subsection
286(1)
to keep is taken, in relation to a winding up of a sub-fund of a CCIV, to be a reference to both of the following:
(a)
financial records that the CCIV is required to keep and retain for the sub-fund under subsection
286(1)
, as that subsection applies in relation to the sub-fund under section
1232A
;
(b)
financial records that the CCIV is required to keep and retain for itself under subsection
286(1)
, as that subsection applies to the CCIV under section
1232
.
History
S 1237ZA inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237ZB
DIRECTORS OF THE CORPORATE DIRECTOR
1237ZB(1)
Sections
588FDA
and
588FGA
apply in relation to a sub-fund of a CCIV as if each of the following were a director of a CCIV:
(a)
a director of the CCIV;
(b)
a director of the corporate director of the CCIV.
1237ZB(2)
Paragraph
(1)(a)
is included for the avoidance of doubt.
History
S 1237ZB inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1237ZC
1237ZC
VESTING OF PPSA SECURITY INTERESTS IF COLLATERAL NOT REGISTERED WITHIN TIME
Section
588FL
applies in relation to a PPSA security interest granted by a CCIV if:
(a)
an order is made, or a resolution is passed, for the winding up of a sub-fund of the CCIV; and
(b)
the PPSA security interest is in collateral that is an asset of the sub-fund of the CCIV.
History
S 1237ZC inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 6
-
Recovering property of sub funds
History
Div 6 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238
1238
DUTIES OWED BY DIRECTORS OF CORPORATE DIRECTOR OF A CCIV
The object of this Division is to ensure that the officers of the corporate director of a CCIV, instead of the corporate director itself, owe the duties in Divisions
3
,
4
,
5
and
6
of Part
5.7B
.
History
S 1238 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238A
APPLYING PROPERTY RECOVERY PROVISIONS TO CCIVs
1238A(1)
The property recovery provisions referred to in subsection
(2)
apply to a CCIV subject to:
(a)
such modifications as are set out in this Division; and
(b)
such other modifications as are made necessary by the facts that:
(i)
for a CCIV, solvency and insolvency are determined at the level of a sub-fund, instead of at the level of the CCIV; and
(ii)
the officers to whom the provisions are directed are the officers of the corporate director, instead of the officers of the CCIV.
Property recovery provisions
1238A(2)
The provisions (the
property recovery provisions
) are as follows:
(a)
Divisions
3
,
4
,
5
and
6
of Part
5.7B
(other than a provision excluded by subsection
(3)
);
(b)
the other provisions of the Corporations legislation (other than a provision excluded by subsection
(3)
) to the extent to which they relate to the operation of the provisions referred to in paragraph
(a)
.
1238A(3)
For the purposes of subsection
(2)
, the regulations may specify provisions that are excluded from the property recovery provisions.
Translation rules
1238A(4)
In the application of the property recovery provisions, those provisions apply as if the substitutions set out in the following table were made.
Substitutions to be made
|
Item
|
Column 1
If the provision
…
|
Column 2
substitute a reference to
…
|
1 |
refers to the company (the
relevant company
) in relation to which the provision applies (whether the reference is express or implied, and (if the reference is express) whether the company is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table |
the sub-fund (but see subsections
(5)
and
(6)
) |
2 |
refers to the directors, or a director, or the board of the relevant company |
the directors, or a director, or the board of the corporate director of the CCIV |
3 |
refers to an officer of the relevant company |
an officer of the corporate director |
4 |
refers to shares in the relevant company |
shares referable to the sub-fund |
1238A(5)
Despite item 1 of the table in subsection
(4)
, a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).
1238A(6)
If a reference in a provision to the relevant company is, as a result of subsection
(5)
, taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.
History
S 1238A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238B
1238B
REFERENCES TO INCURRING DEBTS
For the purposes of the application of the property recovery provisions, as those provisions apply subject to item 1 of the table in subsection
1238A(4)
, a sub-fund is taken to incur a debt if:
(a)
the CCIV incurs the debt; and
(b)
the debt is, to any extent, a liability of the sub-fund.
The sub-fund incurs the debt at the time the CCIV incurs the debt.
History
S 1238B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238C
WHEN DEBTS ARISE IN RELATION TO REDEEMABLE SHARES
1238C(1)
For the purposes of section
588G
, if a CCIV takes action set out in column 1 of an item of the following table, it incurs a debt at the time set out in column 2 of the item.
When debts are incurred
|
Item
|
Column 1
Action of company
|
Column 2
When debt is incurred
|
1 |
redeeming redeemable shares that are redeemable only at its option |
when the company exercises the option |
2 |
issuing redeemable shares that are issued on terms that they are liable to be redeemed otherwise than only at its option |
when the shares are issued |
3 |
converting under section
1230C
a share that is not a redeemable share into a share that is liable to be redeemed otherwise than only at its option |
when the shares are converted |
1238C(2)
This section has effect in relation to a CCIV in addition to the table set out in subsection
588G(1A)
.
History
S 1238C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 7
-
External administration offences
History
Div 7 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238D
APPLYING EXTERNAL ADMINISTRATION OFFENCES TO CCIVs
1238D(1)
The external administration offences provisions referred to in subsection
(3)
apply to a CCIV.
1238D(2)
In addition to the application referred to in subsection
(1)
, the external administration offences provisions apply to a CCIV subject to:
(a)
such modifications as are set out in this Division; and
(b)
such other modifications as are necessary.
External administration offences provisions
1238D(3)
The provisions (the
external administration offences provisions
) are as follows:
(a)
Part
5.8
(other than a provision excluded by subsection
(4)
);
(b)
the other provisions of the Corporations legislation (other than a provision excluded by subsection
(4)
) to the extent to which they relate to the operation of the provisions referred to in paragraph
(a)
.
1238D(4)
For the purposes of subsection
(3)
, the regulations may specify provisions that are excluded from the external administration offences provisions.
Translation rules
1238D(5)
In the application of the external administration offences provisions, those provisions apply as if the substitutions set out in the following table were made.
Substitutions to be made
|
Item
|
Column 1
If the provision
…
|
Column 2
substitute a reference to
…
|
1 |
refers to the company (the
relevant company
) in relation to which the provision applies (whether the reference is express or implied, and (if the reference is express) whether the company is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table |
the sub-fund (but see subsections
(6)
and
(7)
) |
2 |
refers to the directors, or a director, or the board of the relevant company |
the corporate director of the CCIV |
3 |
refers to an officer of the relevant company |
each of the following: |
|
(a) |
a director of the CCIV; |
|
(b) |
a person covered by paragraph
(b)
,
(c)
or
(d)
of the definition of
officer
of a CCIV in section
1224B
in relation to the sub-fund |
4 |
refers to shares in the relevant company |
shares referable to the sub-fund |
1238D(6)
Despite item 1 of the table in subsection
(5)
, a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).
1238D(7)
If a reference in a provision to the relevant company is, as a result of subsection
(6)
, taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.
History
S 1238D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238E
INTERPRETATION OF CEASED TO CARRY ON BUSINESS
1238E(1)
For the purposes of Part
5.8
, a sub-fund is taken to have ceased to carry on business only if:
(a)
2 months have passed since a notice under subsection
1239(5)
(about voluntary deregistration of a sub-fund) relating to the sub-fund was published and ASIC has not been informed that the part of the business of the CCIV that is registered as the sub-fund is being carried on; or
(b)
ASIC has published a notice under subsection
1239B(1)
(about ASIC initiated deregistration of a sub-fund) relating to the sub-fund.
1238E(2)
Subsection
589(3)
does not apply to determine when a sub-fund of a CCIV is taken to have ceased to carry on business.
History
S 1238E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238F
FRAUDS BY OFFICERS
1238F(1)
Section
596
applies in relation to a CCIV as if the following were officers of the CCIV:
(a)
a natural person who is an officer of the CCIV;
(b)
a natural person who is a director of the corporate director of the CCIV.
1238F(2)
Paragraph
(1)(a)
is included for the avoidance of doubt.
History
S 1238F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 8
-
Miscellaneous
History
Div 8 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1238G
APPLYING EXTERNAL ADMINISTRATION MISCELLANEOUS PROVISIONS TO SUB-FUNDS
1238G(1)
The external administration miscellaneous provisions referred to in subsection
(2)
apply to a CCIV subject to:
(a)
such modifications as are set out in this Division; and
(b)
such other modifications as are necessary.
External administration miscellaneous provisions
1238G(2)
The provisions (the
external administration miscellaneous provisions
) are as follows:
(a)
Part
5.9
(other than a provision excluded by subsection
(3)
);
(b)
the other provisions of the Corporations legislation (other than a provision excluded by subsection
(3)
) to the extent to which they relate to the operation of the provisions referred to in paragraph
(a)
.
1238G(3)
For the purposes of subsection
(2)
, the regulations may specify provisions that are excluded from the external administration miscellaneous provisions.
Translation rules
1238G(4)
In the application of the external administration miscellaneous provisions, those provisions apply as if the substitutions set out in the following table were made.
Substitutions to be made
|
Item
|
Column 1
If the provision
…
|
Column 2
substitute a reference to
…
|
1 |
refers to the corporation (the
relevant corporation
) in relation to which the provision applies (whether the reference is express or implied, and (if the reference is express) whether the corporation is referred to as a company, a body corporate, a corporation, or in some other way), and the reference is not covered by another item of this table |
the sub-fund (but see subsections
(5)
and
(6)
) |
2 |
refers to an officer of the relevant corporation |
each of the following: |
|
(a) |
a director of the CCIV; |
|
(b) |
a person covered by paragraph
(b)
,
(c)
or
(d)
of the definition of
officer
of a CCIV in section
1224B
in relation to the sub-fund |
3 |
refers to shares in the relevant corporation |
shares referable to the sub-fund |
1238G(5)
Despite item 1 of the table in subsection
(4)
, a reference covered by column 1 of that item is taken to be a reference to the CCIV if the context of the reference so requires (for example, because the reference requires the legal capacity and powers of a company).
1238G(6)
If a reference in a provision to the relevant corporation is, as a result of subsection
(5)
, taken to be a reference to the CCIV, the operation of the provision in relation to the CCIV is confined, to the extent possible, to the sub-fund.
History
S 1238G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Division 9
-
Deregistration and transfer of registration
History
Div 9 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision A
-
Deregistration
History
Subdiv A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239
DEREGISTRATION OF A SUB-FUND
-
VOLUNTARY
Who may apply for deregistration
1239(1)
An application to deregister a sub-fund of a CCIV may be lodged with ASIC by:
(a)
the CCIV; or
(b)
the corporate director of the CCIV; or
(c)
a liquidator of the sub-fund.
If the CCIV lodges the application, it must nominate a person to be given notice of the deregistration.
Circumstances in which application can be made
1239(2)
A person may apply only if:
(a)
the sub-fund has no assets or liabilities; and
(b)
the CCIV is not a party to any legal proceedings that relate to the sub-fund.
1239(3)
The application must be in the prescribed form.
ASIC may ask for information about officers
1239(4)
The applicant must give ASIC any information that ASIC requests about the following officers:
(a)
the current and former officers of the CCIV;
(b)
the current and former officers of the corporate director of the CCIV.
Deregistration procedure
1239(5)
If:
(a)
ASIC decides to deregister the sub-fund under this section; and
(b)
ASIC is not aware of any failure to comply with subsections
(1)
to
(4)
;
ASIC must:
(c)
give notice of the proposed deregistration on ASIC database; and
(d)
publish notice of the proposed deregistration in the prescribed manner.
1239(6)
When 2 months have passed since the publication of the notice under paragraph
(5)(d)
, ASIC may deregister the sub-fund.
1239(7)
ASIC must give notice of the deregistration to:
(a)
the applicant; or
(b)
the person nominated in the application to be given the notice.
Notices taken to have been given under section 601AA
1239(8)
For the purposes of the provisions of this Act (other than a provision of this Chapter):
(a)
a notice given under paragraph
(5)(c)
is taken to have been given under paragraph
601AA(4)(c)
; and
(b)
a notice published under paragraph
(5)(d)
is taken to have been published under subsection
601AA(4)(d)
.
ASIC must not deregister a sub-fund that is an Australian passport fund if the fund has certain members
1239(9)
However, ASIC must not decide, under this section, to deregister a sub-fund that is an Australian passport fund if:
(a)
there are members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; or
(b)
there are members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.
1239(10)
For the purposes of subsection
(9)
, ignore any member of the fund that:
(a)
is, or has at any time been, the operator of the fund; or
(b)
is a related party of an entity that is, or has at any time been, the operator of the fund.
Note: See section
1216B
for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.
History
S 1239 inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239A
DEREGISTRATION OF A SUB-FUND
-
ASIC INITIATED
Circumstances in which ASIC may deregister
1239A(1)
ASIC may decide to deregister a sub-fund of a CCIV if:
(a)
the CCIV has not lodged any documents that relate to the sub-fund under this Act in the last 18 months; and
(b)
ASIC has no reason to believe that the part of the business of the CCIV that is registered as the sub-fund is being carried on.
1239A(2)
ASIC may also decide to deregister a sub-fund of a CCIV if:
(a)
the CCIV
'
s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; and
(b)
the review fee is to any extent a liability of the sub-fund.
1239A(3)
ASIC may also decide to deregister a sub-fund of a CCIV if the sub-fund is being wound up and ASIC has reason to believe that:
(a)
the liquidator of the sub-fund is no longer acting; or
(b)
the sub-fund
'
s affairs have been fully wound up and a return that the liquidator should have lodged is at least 6 months late; or
(c)
the sub-fund
'
s affairs have been fully wound up under Part
5.4
(as modified by this Part) and the assets of the sub-fund are not enough to cover the costs of obtaining a Court order for the sub-fund
'
s deregistration.
1239A(4)
However, ASIC must not decide, under this section, to deregister a sub-fund that is an Australian passport fund if ASIC is of the opinion that to do so would not be in the interests of:
(a)
members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and
(b)
members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.
1239A(5)
For the purposes of subsection
(4)
, ignore any member of the fund that:
(a)
is, or has at any time been, the operator of the fund; or
(b)
is a related party of an entity that is, or has at any time been, the operator of the fund.
Note: See section
1216B
for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.
Show cause notice
1239A(6)
Before deciding to deregister a sub-fund, ASIC must give the CCIV a written notice that requires the CCIV to show cause, at a hearing before a specified person, why the sub-fund should not be deregistered.
1239A(7)
The notice must specify:
(a)
the grounds on which it is proposed to deregister the sub-fund; and
(b)
a reasonable time and place at which the hearing is to be held.
However, if the CCIV consents, the person conducting the hearing may fix a different time or place.
1239A(8)
The person conducting the hearing must:
(a)
give the CCIV an opportunity to be heard at the hearing; and
(b)
give ASIC:
(i)
a report about the hearing; and
(ii)
a recommendation about the grounds in the notice on which it is proposed to deregister the sub-fund.
1239A(9)
After considering the report and recommendation, ASIC may decide to:
(a)
take no further action in relation to the matter and give written advice of that decision to the CCIV; or
(b)
deregister the sub-fund.
1239A(10)
Neither of the following is a legislative instrument:
(a)
a notice under subsection
(6)
;
(b)
a report under subsection
(8)
(if it is in writing).
History
S 1239A inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239B
PROCESS FOR ASIC INITIATED DEREGISTRATION OF A SUB-FUND
1239B(1)
If ASIC decides under section
1239A
to deregister a sub-fund of a CCIV, it must:
(a)
give notice setting out the date on which ASIC proposes to deregister the sub-fund:
(i)
to the CCIV; and
(ii)
to the liquidator of the sub-fund (if any); and
(iii)
to the corporate director; and
(iv)
on the ASIC database; and
(b)
publish notice of the date on which ASIC proposes to deregister the sub-fund in the prescribed manner.
1239B(2)
A notice under paragraph
(1)(a)
must be given at least 5 business days before the sub-fund is deregistered.
1239B(3)
ASIC may deregister the sub-fund if:
(a)
5 business days have passed since the publication of the notice under paragraph
(1)(b)
; and
(b)
at the time ASIC deregisters the sub-fund, ASIC has reason to believe that there is no property of the CCIV to which section
1233K
(about property that has to be converted) applies.
1239B(4)
ASIC does not have to give a person notice under paragraph
(1)(a)
if ASIC does not have the necessary information about the person
'
s identity or address.
1239B(5)
If ASIC deregisters a sub-fund of a CCIV under this section, ASIC must give notice that the fund has been deregistered, and the date on which it has been deregistered, to everyone who was notified of the proposed deregistration under subparagraph
(1)(a)(ii)
or
(iii)
.
1239B(6)
The notice must be given within 5 business days after the sub-fund is deregistered.
Notices taken to have been given under section 601AB
1239B(7)
For the purposes of the provisions of this Act (other than a provision of this Chapter):
(a)
a notice given under paragraph
(1)(a)
is taken to have been given under paragraph
601AB(3)(a)
; and
(b)
a notice published under paragraph
(1)(b)
is taken to have been published under subsection
601AB(3)(b)
.
History
S 1239B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239C
1239C
DEREGISTRATION OF A SUB-FUND
-
FOLLOWING AMALGAMATION OR WINDING UP
ASIC must deregister a sub-fund of a CCIV if the Court orders the deregistration of the sub-fund under:
(a)
paragraph
413(1)(d)
(reconstruction and amalgamation of Part
5.1
bodies); or
(b)
paragraph
481(5)(b)
(release of liquidator); or
(c)
subsection
509(2)
(deregistration after end of administration return is lodged).
Note: These provisions apply to a sub-fund of a CCIV with modifications: see Divisions
1
to
8
of this Part.
History
S 1239C inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239D
EFFECT OF DEREGISTRATION OF A SUB-FUND
Effect on assets of the CCIV
1239D(1)
Subsections
601AD(1A)
to
(4)
and section
601AE
apply in relation to the deregistration of a sub-fund of a CCIV.
Note: Subsection
601AD(1)
does not apply in relation to the deregistration of a sub-fund of a CCIV. The CCIV will continue to exist until the CCIV itself is deregistered.
1239D(2)
Those provisions apply as if a reference to property were instead a reference to property of the sub-fund.
Note: For references to property of a sub-fund, see subsection
51F(3)
.
Books
1239D(3)
If a sub-fund of a CCIV is deregistered, the CCIV must keep the CCIV
'
s books that relate to the sub-fund (other than books that a liquidator has to keep under subsection
70-35(1)
of Schedule
2
) for 3 years after the deregistration.
Note: If the CCIV itself is deregistered, the corporate director of the CCIV immediately before it is deregistered is required to retain all books of the CCIV including these books: see section
1239L
.
1239D(4)
An offence based on subsection
(3)
is an offence of strict liability.
Consequences of deregistration on status as an Australian passport fund
1239D(5)
If:
(a)
a sub-fund of a CCIV is deregistered; and
(b)
the sub-fund was an Australian passport fund;
ASIC must annotate the Register of Passport Funds to indicate that the sub-fund is no longer an Australian passport fund, or cause that annotation to be made on the Register.
History
S 1239D inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239E
1239E
THE COMMONWEALTH
'
S AND ASIC
'
S POWER TO FULFIL OUTSTANDING OBLIGATIONS IN RELATION TO DEREGISTERED SUB-FUND
The Commonwealth or ASIC may do an act on behalf of the CCIV of a deregistered sub-fund or the liquidator of the sub-fund if the Commonwealth or ASIC is satisfied that the CCIV or liquidator would be bound to do the act if the sub-fund had not been deregistered.
Note: This power is a general one and is not limited to acts in relation to property vested in the Commonwealth under subsection
601AD(1A)
, or ASIC under subsection
601AD(2)
. The Commonwealth or ASIC has all the powers that automatically flow from the vesting of property under that subsection (see subsections
601AD(3A)
and
(4)
) and may exercise those powers whether or not the CCIV was bound to do so.
History
S 1239E inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239F
1239F
CLAIMS AGAINST INSURERS IN RELATION TO DEREGISTERED SUB-FUND
A person may recover from the insurer of a CCIV an amount that was payable to the CCIV under the insurance contract if:
(a)
a sub-fund of the CCIV is deregistered; and
(b)
the CCIV has a liability to the person that was a liability of the sub-fund; and
(c)
the insurance contract covered that liability immediately before the sub-fund was deregistered.
History
S 1239F inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239G
REINSTATEMENT OF A SUB-FUND
1239G(1)
The registration of a sub-fund of a CCIV may be reinstated under section
601AH
as if the sub-fund were a company.
Note: Notice of the reinstatement must be given: see section
1239J
.
1239G(2)
If the registration of a sub-fund of a CCIV is reinstated under section
601AH
, the sub-fund is taken to have been registered throughout the period it was deregistered.
1239G(3)
The Court
'
s power to make an order under subsection
601AH(3)
includes the power to make an order in relation to the following:
(a)
the assets or liabilities of a sub-fund of a CCIV whose registration is reinstated;
(b)
the assets or liabilities of any other sub-fund of the CCIV which is affected by the reinstatement.
1239G(4)
If the registration of a sub-fund of a CCIV is reinstated under section
601AH
, any property of the CCIV that was property of the sub-fund that is still vested in the Commonwealth or ASIC revests in the CCIV. If the CCIV held particular property subject to a security or other interest or claim, the CCIV takes the property subject to that interest or claim.
Note: The CCIV must allocate the property to the sub-fund in accordance with Subdivision
B
of Division
3
of Part
8B.5
.
1239G(5)
Subsections
601AH(1A)
,
(4)
,
(4A)
and
(5)
do not apply in relation to the reinstatement of the registration of a sub-fund of a CCIV.
Registration as an Australian passport fund not reinstated
1239G(6)
The reinstatement of the registration of a sub-fund of a CCIV does not result in the sub-fund
'
s registration as a passport fund under Part
8A.3
being reinstated, even if the sub-fund was an Australian passport fund immediately before its deregistration.
History
S 1239G inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239H
CCIV REINSTATED FOLLOWING REINSTATEMENT OF A SUB-FUND
1239H(1)
If a CCIV is deregistered and:
(a)
ASIC reinstates the registration of a sub-fund of the CCIV under subsection
601AH(1)
; or
(b)
the Court makes an order that ASIC reinstate the registration of the sub-fund under subsection
601AH(2)
;
ASIC must also reinstate the registration of the CCIV.
Note: Notice of the reinstatement of the registration of the CCIV must be given: see section
1239J
.
Effect of reinstatement
1239H(2)
If the registration of a CCIV is reinstated the CCIV is taken to have continued in existence as if it had not been deregistered.
Note: Any property of the CCIV that comprised assets of the sub-fund that is still vested in the Commonwealth or ASIC revests in the CCIV: see subsection
1239G(4)
.
1239H(3)
To avoid doubt, the reinstatement of the registration of the CCIV also has the effect of reinstating, at the time the registration is reinstated, ASIC
'
s record, kept as part of the registration, of the company that is the corporate director or temporary corporate director of the CCIV.
Note: The company named in the record as the corporate director or temporary corporate director of the CCIV is the corporate director of the CCIV (see subsection
1224(3)
). See section
1224S
for what happens if the corporate director does not meet the requirements of section
1224F
.
History
S 1239H inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239J
1239J
NOTICES RELATING TO REINSTATEMENT OF A SUB-FUND
If the registration of a sub-fund of a CCIV is reinstated under section
601AH
, ASIC must publish notice in the Gazette and give notice to the corporate director of the CCIV of the following:
(a)
the reinstatement of the registration of the sub-fund;
(b)
if as a result of reinstating the sub-fund the registration of the CCIV is also reinstated under section
1239H
-
the reinstatement of the registration of the CCIV.
History
S 1239J inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239K
DEREGISTRATION OF A CCIV
CCIV must be deregistered if it has no registered sub-funds
1239K(1)
If, as the result of ASIC deregistering a sub-fund of a CCIV, the CCIV has no registered sub-funds, ASIC must deregister the CCIV.
Note: Subject to this Subdivision, sections
601AD
to
601AG
apply in relation to the deregistration of the CCIV.
1239K(2)
ASIC must give the corporate director of the CCIV written notice that the CCIV has been deregistered and the date on which it has been deregistered.
1239K(3)
The notice must be given within 5 business days after the date the CCIV has been deregistered.
CCIV may not be deregistered under section 601AA, 601AB or 601AC
1239K(4)
ASIC may not deregister a CCIV under section
601AA
,
601AB
or
601AC
.
History
S 1239K inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239L
BOOKS OF THE CCIV TO BE KEPT BY FORMER CORPORATE DIRECTOR
1239L(1)
If a CCIV is deregistered, the corporate director of the CCIV immediately before the deregistration must keep the CCIV
'
s books (other than books that a liquidator has to keep under subsection
70-35(1)
of Schedule
2
) for 3 years after the deregistration.
1239L(2)
An offence based on subsection
(1)
is an offence of strict liability.
1239L(3)
Books that the corporate director of the CCIV is required to keep under subsection
(1)
are taken to be books of the corporate director for the purposes of subsections
601AD(5)
to
(7)
as those sections apply in relation to deregistration of the corporate director.
Note: If the corporate director is deregistered, the directors of the corporate director immediately before deregistration must keep the corporate director
'
s books for 3 years after the deregistration: see subsection
601AD(5)
.
1239L(4)
Subsections
601AD(5)
to
(7)
do not apply in relation to the deregistration of a CCIV.
History
S 1239L inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239M
1239M
A CCIV MAY NOT BE REINSTATED UNDER SECTION 601AH
The registration of a CCIV may not be reinstated under section
601AH
.
Note: If a CCIV has been deregistered and the registration of a sub-fund is reinstated under section
601AH
, ASIC must reinstate the registration of the CCIV: see section
1239H
.
History
S 1239M inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
Subdivision B
-
Transfer of registration
History
Subdiv B inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).
SECTION 1239N
1239N
REGISTRATION OF CCIV CANNOT BE TRANSFERRED
Part
5A.2
does not apply to a CCIV.
History
S 1239N inserted by No 8 of 2022, s 3, Sch 1
[
4] (effective 1 July 2022).