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CORPORATIONS ACT 2001 - SECT 1237B

Applying winding up provisions to sub-funds

             (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

             (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.

             (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

             (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 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 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.

             (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".

             (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.



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