Commonwealth Numbered Regulations - Explanatory Statements

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CORPORATIONS REGULATIONS (AMENDMENT) 1993 NO. 135

EXPLANATORY STATEMENT

STATUTORY RULES 1993 No. 135

Issued by the Authority of the Attorney-General

Corporations Act 1989

Corporations Regulations (Amendment)

Section 22 of the Corporations Act 1989 empowers the Governor-General to make regulations, not inconsistent with the Act or the Corporations Law (the Law), prescribing, inter alia, matters which are required by the Law to be prescribed by regulations, or necessary or convenient to be prescribed by regulations for carrying out or giving effect to the Law.

Part 4 of the Corporate Law Reform Act 1292 (the Act) contains major reforms to the corporate insolvency provisions in Chapter 5 of the Law. The Regulations are principally in support of those reforms and amend the Corporations Regulations made under the Corporations Act. The Regulations are to:

       amend regulations and forms applicable to receivers, to extend their application to other persons taking control of company property given as security, such as mortgagees in possession or their agents (termed 'controllers');

       introduce new regulations and prescribe new forms in relation to the new obligations and duties imposed on controllers;

       omit regulations and forms applicable to the repealed official management procedure in Part 5.3 of the Law;

       introduce new regulations and prescribe new forms in relation to the new voluntary administration procedure in Part 5.3A of the Law;

       prescribe two additional circumstances in which a company under administration will be deemed to have moved from administration into winding up;

       prescribe the Insurance and Superannuation Commissioner for the purposes of paragraph 459P(1)(g) of the Law;

       reform the requirements for a valid resolution by creditors at a meeting of creditors; and

       make a number of miscellaneous amendments to the general procedures set down in the Corporations Regulations in relation to the meetings of creditors and others, such as allowing the service of proxies by facsimile and the use of telephone conference facilities at meetings.

The Regulations also:

       amend a number of forms consequential on the reforms to the directors' duties provisions of the Law made by Part 2 of the Act;

       prescribe forms for the purposes of a number of miscellaneous provisions in Part 6 of the Act; and

       make other miscellaneous amendments, including:

-       the prescription of a cover page for copies of court orders required to be lodged with the Australian Securities Commission; and

-       correcting terminology and statutory references used in the Corporations Regulations.

In accordance with the Heads of Agreement and the draft Corporations Agreement between Commonwealth, State and Territory Ministers having responsibilities in relation to corporate regulation, the Attorney-General has consulted the State and Territory Ministers who are the members of the Ministerial Council for Corporations. The Ministerial Council for Corporations has approved the regulations insofar as they relate to matters within its deliberative function under the Heads of Agreement and draft Corporations Agreement.

A detailed commentary on the regulations is provided in the Attachment.

ATTACHMENT

Regulation 1

Commencement

1.       The date of commencement of the regulations is 23 June 1993.

2.       Most of the regulations are in support of provisions contained in the Corporate Law Reform Act 1992 ('the Act'), in particular Part 4 and section 177 of that Act.

Regulation 2

Amendment

3.       Regulation 2.1 provides that the Corporations Regulations ('the Regulations') are amended as set out in these regulations.

Regulation 3

New Regulation 1.16 Identification of order lodged with Commission

4.       A number of provisions of the Corporations Law and rules of the Courts exercising jurisdiction under the Corporations Law require that an order of the Court or a copy of an order be lodged with the Australian Securities Commission ('the ASC'). New regulation 1.16, inserted by regulation 3.1, requires that where such an order or copy is lodged with the ASC, it must be accompanied by a cover page in Form 105 identifying the relevant provision of the Corporations Law and the nature of the order. This will facilitate storage of the order by the ASC and its retrieval for any subsequent public search that might be made for the order.

5. The amendment to Schedule 1 of the Regulations by regulation 46.1 prescribes Form 105 for the purposes of new regulation 1.16. The new Form 105 is inserted in Schedule 2 of the Regulations by regulation 47.1.

Regulation 4

Regulation 3.8.02 (Documents that are to accompany an annual return)

6.       Regulation 4.1 amends each of paragraphs 3.8.02(a) and (b) by omitting the existing references to 'group accounts' and substituting references to 'consolidated accounts'. The amendments bring the terminology of paragraphs 3.8.02(a) and (b) into line with the amendments made in the Corporations Legislation Amendment Act 1991 [No 110 of 1991].

Regulation 5

Regulation 3.8.03 (Annexures and amendments)

7.       Regulation 5.1 amends subregulation 3.8.03(2) by omitting the existing reference to 'group accounts' and substituting a reference to 'consolidated accounts'. The amendments bring the terminology of subregulation 3.8.03(2) into line with the amendments made in the Corporations Legislation Amendment Act 1991 [No 110 of 1991].

Regulation 6

New regulation 3.8.04 An agent may lodge the annual return

8.       Subsection 335A(1) of the Corporations Law, inserted by section 177 of the Act, facilitates the service by the ASC of a partly completed annual return on a company under section 335, by allowing the company to notify the ASC in the prescribed form of an address for service other than its registered office (eg the mailing address of its professional agent). Subsection 335A(2), also inserted by section 177 of the Act, allows a company to notify the ASC in the prescribed form that it no longer wishes to nominate an alternative mailing address for service of documents (in which case the general provisions in section 220 of the Corporations Law for service of documents on a company would apply).

9.       New regulation 3.8.04, inserted by regulation 6, allows notification under subsections 335A(1) and (2) to be given to the ASC by an agent of the company, in lieu of the company itself (new subregulations 3.8.04(1) and (2)). New subregulation 3.8.04(2) specifies that an agent who lodges a notice must sign the notice on behalf of the company. This is necessary to meet the requirement in subregulation 1.08(1) that a form must be signed by a director, secretary or principal executive officer of the company unless the Regulations state otherwise.

10. The amendment to Schedule 1 of the Regulations by regulation 46.3 prescribes Form 361 for the purposes of both subsection 335A(1) and 335A(2). The new Form 361 is, inserted in Schedule 2 of the Regulations by regulation 47.4.

Regulation 7

Regulation 4.2.02 (Documents to accompany application for reservation of name)

11. Existing regulation 4.2.02 provides that an application under sections 374, 375, 376 or 377 of the Corporations Law to reserve a name that contains a word or phrase such as 'Anzac', 'Red Cross', 'Savings Bank' etc, specified in Schedule 7 of the Regulations, must have with it the consent in writing of the relevant Minister. No similar requirement is made in regulation 4.2.02 in relation to an application under section 373 of the Corporations Law to reserve a name in respect of a new company, known as a Division 1 company, that contains one of the restricted words or phrases in Schedule 7.

12. Regulation 7.1 corrects this anomaly by amending regulation 4.2.02 to also require that an application made under section 373 of the Corporations Law to reserve a name that contains one of the restricted words or phrases in Schedule 7 must have with it the consent in writing of the relevant Minister.

Regulation 8

Substitution of Part Heading

13. Sections 37 to 55 of the Act extend a number of obligations, previously imposed only on receivers by Part 5.2 of the Corporations Law, to 'controllers' (defined in section 9 of the Corporations Law by paragraph 29(h) of the Act to mean receivers, receivers and managers or anyone else who (whether or not as agent for the corporation) is in possession, or has control of property of a corporation for the purpose of enforcing a charge). As a consequence, the heading to Part 5.2 of the Corporations Law is amended to read "Receivers, and other controllers, of property of corporations".

14. Regulation 8.1 makes a corresponding amendment to the heading to Part 5.2 of the Regulations.

Regulation 9

New regulation 5.2.001 Controller's notice to owner or lessor of property - how given

15. Subsection 419A(2) of the Corporations Law, inserted by section 40 of the Act, makes a controller personally liable for rent or other amounts payable under a relevant agreement, from the seventh day after the controller is appointed or enters into possession of property of the company of which someone else is the owner or lessor ('third party property').

16. It may be that in some circumstances, such as where the third party property consists of a chattel that is not capable of being moved within 7 days, or where an owner or lessor declines to take possession of the property, the personal liability imposed on controllers may be unduly onerous. Subsections 419A(3) and (4) of the Corporations Law will alleviate such situations by allowing a controller 7 days in which to give to the owner or lessor notice that the controller does not propose to use or occupy certain property. Where such notice is given, the controller will be relieved of liability in respect of that property.

17. New regulation 5.2.001, inserted by regulation 9.1, sets out the requirements for service of the notice under subsection 419A(3). Notice is required to be given to the owner or lessor by personal delivery or by prepaid post to the owner's or lessor's usual or last known place of residence or business.

18. The amendment to Schedule 1 of the Regulations by regulation 46.4 prescribes Form 503 for the purposes of subsection 419A(3). The new Form 503 is inserted in Schedule 2 of the Regulations by regulation 47.5.

Regulation 10

Regulation 5.2.01 (Certified copies of reports)

19. Existing paragraph 5.2.01(c) requires that a receiver certify a copy of a report about the affairs of a corporation, lodged by the receiver with the ASC for the purposes of paragraph 429(2)(c) of the Corporations Law, to be a true copy. The obligation under paragraph 429(2)(c) to lodge a copy of such a report has been extended to controllers, in lieu of receivers, by section 50 of the Act. As a consequence, regulation 10.1 amends paragraph 5.2.01(c) by replacing the existing reference in that paragraph to a 'receiver' with reference to a 'controller'.

20. Existing paragraphs 5.2.01(d) and (e) make provision for the certification of reports required to be lodged with the ASC for the purposes of the official management procedure in Part 5.3 of the Corporations Law. As a consequence of the repeal of Part 5.3 of the Corporations Law by section 56 of the Act, regulation 10.2 omits paragraphs 5.2.01(d) and (e). However, under the transitional arrangements in paragraph 49.1(a) of these regulations, paragraphs 5.2.01(d) and (e) as in force before the commencement of these regulations continue to apply to companies placed under official management before that date.

21. Section 475 of the Corporations Law requires that a report as to a company's affairs be submitted to the liquidator of the company by, inter alia, the directors and secretary of the company. Under subsection 475(7), the liquidator is required to lodge a copy of that report with the ASC. Existing paragraph 5.2.01(f) of the Regulations requires the liquidator to certify a copy of the report so lodged, to be a true copy. The operation of section 475 has been extended to provisional liquidators, in addition to liquidators, by section 50 of the Act. As a consequence, regulation 10.3 amends paragraph 5.2.01 (f) to include a reference to a 'provisional liquidator´ in addition to a 'liquidator'.

Regulation 11

Repeal of Part 5.3 (Official Management)

22. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, regulation 11.1 omits Part 5.3 of the Regulations. Part 5.3 of the Regulations comprises regulations relevant exclusively to the official management procedure. However, under the transitional arrangements in paragraph 49.1 (b) of these regulations, Part 5.3 of the Regulations as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 12

New Parts 5.3A and 5.4

New Part 5.3A - Administration of a company's affairs with a view to executing a deed of company arrangement

23. Section 56 of the Act replaces the outmoded official management procedure in Part 5.3 of the Corporations Law with a new Part 5.3A which provides for a voluntary scheme of administration of companies in financial difficulties.

24. Regulation 12.1 inserts new Part 5.3A in the Regulations which makes provision for such matters as the form of notices and reports required under the new voluntary administration procedure, as well as the provisions to be included in a deed of company arrangement.

New regulation 5.3A.01 Administrator's notice of ending of administration

25. New subregulation 5.3A.01(1) requires an administrator to notify the ASC of the end of an administration as soon as practicable. This general requirement will not, however, need to be complied with where the administrator has lodged notice of the end of the administration in accordance with a specific requirement to do so appearing elsewhere in these regulations or the Corporations Law (new subregulation 5.3A.01(2)). An example of such a specific requirement is that appearing in paragraph 446A(5)(a) of the Corporations Law and new paragraph 5.3A.07(5)(a), which require an administrator to lodge notice with the ASC that the company is taken, in certain circumstances, to have passed a resolution that the company be wound up.

New regulation 5.3A.02 Administrator to specify voidable transactions in statement

26. Pursuant to paragraph 439A(4)(b) of the Corporations Law, inserted by section 56 of the Act, the notice to creditors of the meeting to determine the future of a company under administration is to be accompanied by a statement by the administrator setting out his or her opinion as to, inter alia, whether it would be in the creditors' interests for the company to be wound up (subparagraph 439A(4)(b)(iii)).

27. New regulation 5.3A.02 requires an administrator to specify in that statement whether there are any transactions that appear to the administrator to be voidable transactions that may be recoverable by a liquidator under Part 5.7B of the Corporations Law. Such a statement will alert creditors to the possibility that it may be in their interests to wind up the company, so that a liquidator could recover the payments under Part 5.7B and thus increase the pool of assets to be paid out to creditors, rather than allow the company to enter into a deed of company arrangement.

New regulation 5.3A.03 Administrator to lodge notice of appointment

28. New subregulation 5.3A.03(1) requires an administrator appointed in the following circumstances to lodge a notice of his or her appointment with the ASC before the end of the next business day after that appointment:

       where the administrator of a company originally appointed by the company's board, the liquidator of the company or a chargee secured over the whole or substantially the whole of the company's property, is removed from office at the first meeting of creditors under subsection 43615(4) and someone else is appointed as administrator;

       where, at a meeting convened to determine the company's future, the company's creditors resolve that the company execute a deed of company arrangement and appoint either the administrator of the company or someone else as the administrator of the deed under subsection 444A(2);

       where the Court, on the application of the ASC or of a creditor of the company, removes the administrator of a company or of a deed of company arrangement from office and appoints someone else as administrator of the company or deed under section 449B;

       where the administrator of a company dies, becomes prohibited from acting as administrator or resigns, and the appointer of that administrator appoints someone else as administrator of the company under subsection 449C(1);

       where, at a meeting of the company's creditors under subsection 449C(4) to ratify the appointment made by the appointer under subsection 449C(1), the creditors determine to remove the person so appointed from office and appoint someone else as administrator of the company;

       where a company is under administration but for some other reason no administrator is acting and the Court, on the application of the ASC or of an officer, member or creditor of the company, appoints a person as administrator under subsection 449C(6);

       where the Court, on the application of the ASC or of an officer, member or creditor of the company, appoints a person as administrator of a deed of company arrangement under subsection 449D(1) in the place of an administrator who has died, become prohibited from acting as administrator of the deed or resigned; or

       where a deed of company arrangement has not yet terminated but for some reason no administrator of the deed is acting and the Court, on the application of the ASC or of an officer, member or creditor of the company, appoints a person as administrator of the deed under subsection 449D(2).

29. The amendment to Schedule 1 of the Regulations by regulation 46.6 prescribes Form 505 for the purposes of new regulation 5.3A.03. An amended Form 505 is inserted in Schedule 2 of the Regulations by regulation 47.6.

New regulation 5.3A.04 Notice of change of administrator's address

30. New regulation 5.3A.04 requires an administrator of a company under administration or of a deed of company arrangement to notify the ASC of any change of his or her address within 14 days.

31. The amendment to Schedule 1 of the Regulations by regulation 46.7 prescribes Form 506 for the purposes of new regulation 5.3A.04. An amended Form 506 is inserted in Schedule 2 of the Regulations by regulation 47.6.

New regulation 5.3A.05 Administrator's notice to owner or lessor of property - how given

32. Subsection 443B(2) of the Corporations Law, inserted by section 56 of the Act, makes an administrator personally liable for rent payments in relation to property leased by the company at the time the administrator is appointed. The administrator will, however, have 7 days to make a preliminary assessment of the position of the company and to decide whether the administration should continue, before becoming personally liable for those payments. In circumstances such as where the property consists of a chattel that is not capable of being moved within 7 days, or where an owner or lessor declines to take possession of the property, the administrator will be able, within that 7 day period, to give to the owner or lessor notice that he or she does not propose to use or occupy that property (subsection 443B(3)). Where such a notice is given, the administrator will be relieved of liability in respect of that property. Such a notice will, however, cease to have effect if expressly revoked by the administrator or where the company actually uses or asserts a right as against the owner or lessor to continue to occupy or be in possession of the property (subsections 443B(5) and (6)).

33. New regulation 5.3A.05 sets out the requirements for service of the notice under subsection 443B(3). The notice is required to be given to the owner or lessor by personal delivery or by prepaid post to the owner's or lessor's usual or last known place of residence or business.

34. The amendment to Schedule 1 of the Regulations by regulation 46.11 prescribes Form 509B for the purposes of subsection 443B(3). The new Form 509B is inserted in Schedule 2 of the Regulations by regulation 47.6.

New regulation 5.3A.06 Provisions included in deed of company arrangement

35. Section 444A of the Corporations Law, inserted by section 56 of the Act, sets out what a deed of company arrangement must contain. The most important matters are listed in subsection 444A(4). Subsection 444A(5) provides that the deed is also taken to include the prescribed provisions, except so far as the deed provides otherwise. There is thus no compulsion to include all the prescribed provisions in a deed. The intention is merely that, by setting out a standard set of provisions in a readily accessible place, the contents of the deed which need to be settled by the meeting of creditors will be limited to essential matters, directly relevant to the particular company. The use of a standard set of provisions should also have beneficial effect over time of tending to standardise the administration of deeds of arrangement.

36. New regulation 5.3A.06 provides that, for the purposes of subsection 444A(5) of the Corporations Law, the prescribed provisions are those set out in Schedule 8A of the Regulations. Schedule 8A is inserted in the Regulations by regulation 48.1.

New regulation 5.3A.07 Administrator becomes liquidator - additional cases

37. Section 446A of the Corporations Law, inserted by section 56 of the Act, provides for a company under administration to be deemed to have entered into a creditors' voluntary winding up, and the administrator of the company or of the deed of company arrangement to be deemed to have been appointed as the liquidator of the company, in three situations where the company seems to be coming to a dead end. Those three situations are:

       where creditors, at the meeting called to decide the company's future, resolve that the company should be wound up (paragraph (446A(1)(a));

       where the company fails within 21 days to execute a deed of company arrangement agreed upon by the creditors (paragraph 446A(1)(b)); and

       where the creditors terminate a deed of company arrangement and resolve that the company should be wound up (paragraph 446A(1)(c)).

38. Section 446B of the Corporations Law also provides for transition from administration to winding-up in 'other prescribed circumstances'.

39. New subregulation 5.3A.07(1) prescribes the following situations for the purposes of section 446B:

       where the Court makes an order under section 445D of the Corporations Law terminating the deed of company arrangement (new paragraph 5.3A.07(1)(a)); or

       where a deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up and those circumstances exist (new paragraph 5.3A.07(1)(b)).

40. Subsection 446B(2) of the Corporations Law provides that the regulations may provide for Part 5.5 of the Corporations Law to apply, with prescribed modifications, in these additional prescribed situations. The matters provided for in the regulations may be of a kind provided for by subsections 446A(2) to (7) of the Corporations Law (subsection 446B(3)).

41. New subregulations 5.3A.07(2) to (7) provide for Part 5.5 of the Corporations Law to apply, with certain modifications, in the two additional situations prescribed by new paragraphs 5.3A.07(1)(a) and (b).

42. New subregulations 5.3A.07(2), (3) and (4) are technical provisions deeming certain of the requirements of a creditors' voluntary winding up to have been satisfied. New subregulation 5.3A.07(5) requires the liquidator to lodge notice of the resolution with the ASC within 7 days and publish such notice within 21 days.

43. New subregulations 5.3A.07(6) and (7) enable the company, the liquidator, a creditor or a contributory to make an application under section 482 of the Corporations Law to stay or terminate the winding up. The circumstances in which such an application could appropriately be made are where the company can establish that the company is in fact solvent. It may be, for example, that although the Court may make an order under section 445D terminating a deed of company arrangement, the company may not be insolvent. It is appropriate in those circumstances to allow the company an opportunity to convince the Court that the deemed creditors' voluntary winding up should be stayed or terminated. However, given that a company will only have entered into administration in circumstances where either the board is of the opinion that the company is insolvent or is likely to become insolvent at some future time (paragraph 436A(1)(a) of the Corporations Law); the company is already in liquidation or provisional liquidation and the liquidator or provisional liquidator has appointed an administrator (subsection 436B(1)); or a charge over the whole or substantially the whole of the company's assets has become enforceable and the chargee has appointed an administrator (subsection 436C(2)), it is not expected that such an application would often be successful.

New regulation 5.3A.08 Publication of notice of failure to execute instrument of terms of deed

44. Paragraph 450C(a) of the Corporations Law provides for the lodgement of a notice by the administrator of a deed of company arrangement where a company fails to execute a deed within the time prescribed by subsection 444B(2). Under paragraph 450C(b), notice of the failure is also to be "published as prescribed".

45. New regulation 5.3A.08 provides that, for the purposes of paragraph 450C(b), the notice is to be published:

       in a national newspaper; or

       in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

46. The amendment to Schedule 1 of the Regulations by regulation 46.11 prescribes Form 509F for the purposes of paragraph 450C(a). The new Form 509F is inserted in Schedule 2 of the Regulations by regulation 47.6.

New regulation 5.3A.09 Publication of notice of termination of deed by creditors

47. Section 450D of the Corporations Law provides that where a deed of company arrangement terminates because of paragraph 445C(b) (namely, where the Court makes an order terminating the deed; the company's creditors pass a resolution terminating the deed or if circumstances specified in the deed for its termination exist) the deed's administrator must lodge a notice of the termination with the ASC (paragraph 450D(a)), send such a notice to each of the company's creditors (paragraph 450D(b)) and publish the notice "as prescribed" (paragraph 450D(c)).

48. New regulation 5.3A.09 provides that, for the purposes of paragraph 450D(c), notice is to be published:

       in a national newspaper; or

       in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

49. The amendment to Schedule 1 of the Regulations by regulation 46.11 prescribes Form 509G for the purposes of paragraphs 450D(a) and (b). The new Form 509G is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Part 5.4 - Winding up in insolvency

New regulation 5.4.01 Applications to Court for winding up - prescribed agency

50. Paragraph 459P(1)(g) of the Corporations Law, inserted by section 57 of the Act, makes provision for a "prescribed agency" to apply to the Court for a company to be wound up in insolvency.

51. New regulation 5.4.01 prescribes the Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987 as such an agency.

Regulation 13

Regulation 5.6.01 (Matters for entry in liquidator's or provisional liquidator's books)

52. Existing regulation 5.6.01 prescribes the 'other matters' for which records are required to be kept by a liquidator for the purposes of section 531 of the Corporations Law. The obligation under section 531 to keep records has been extended, by section 88 of the Act, to provisional liquidators in addition to liquidators .

53. Consequentially, regulation 13.1 amends regulation 5.6.01 so that it prescribes the 'other matters' for which records are required to be kept by a provisional liquidator, in addition to a liquidator.

Regulation 14

Regulation 5.6.02 (Inspection of books kept under section 531 of the Corporations Law)

54. Existing regulation 5.6.02 provides that a liquidator must ensure that the books kept under section 531 of the Corporations Law are available at his or her office for inspection in accordance with that section.

55. Consequential on the amendment of section 531 of the Corporations Law, discussed in the paragraphs relating to regulation 13, regulation 14.1 amends regulation 5.6.02 to require a provisional liquidator, in addition to a liquidator, to ensure that the books kept under section 531 are available at his or her office.

Regulation 15

Regulation 5.6.03 (Notice of intention to disclaim lease)

56. Existing regulation 5.6.03 prescribes the requirements for the notice by a liquidator of his or her intention to disclaim a lease under subsection 568(6) of the Corporations Law.

57. Consequential on the omission of subsection 568(6) by paragraph 108(a) of the Act, regulation 15 omits regulation 5.6.03.

Regulation 16

Regulation 5.6.11 (Application)

58. Existing subregulation 5.6.11(2) prescribes those meetings to which the provisions of regulations 5.6.12 to 5.6.36 apply. Existing regulations 5.6.12 to 5.6.36 set out the procedures for the convening and conduct of, and voting at, meetings. The existing reference in paragraph 5.6.11(2)(a) to '5.6.36' is amended by regulation 16.1 to read '5.6.36A' to take account of new regulation 5.6.36A that is inserted in the Regulations by regulation 37.1 to provide for the lodgement of proxies by facsimile.

59. Presently, paragraph 5.6.11(2)(a) includes meetings convened under Part 5.3, 5.4, 5.5 or 5.6 of the Corporations Law, as meetings to which those regulations apply.

60. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, regulation 16.2 omits from paragraph 5.6.11(2)(a) meetings convened under Part 5.3. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulations 5.6.11 to 5.6.36 as in force before the commencement of these regulations continue to apply to meetings of companies placed under official management before that date.

61. Regulation 16.2 also includes in paragraph 5.6.11(2)(a) meetings convened under new Part 5.3A (which provides for a voluntary scheme of administration of companies in financial difficulties) and Part 5.4B (which contains provisions common to both the winding up of a company in insolvency and the winding up of a company by the Court on grounds other than insolvency) as meetings to which regulations 5.6.12 to 5.6.36A apply.

62. The amendment by regulation 16.3 is technical.

63. Regulation 16.4 includes meetings of committees of creditors under the new Part 5.3 administration procedure, as meetings to which regulations 5.6.12 to 5.6.36A also apply.

64. Regulation 16.5 inserts new paragraph 5.6.11(2)(aa) which includes meetings of creditors held under a deed of company arrangement, as meetings to which regulations 5.6.12 to 5.6.36A also apply.

65. Regulation 16.6 amends the existing reference to '5.6.36' in subregulation 5.6.11(3) to read '5.6.36A'.

66. The amendment by regulation 16.7 is consequential on the insertion of new paragraph 5.6.11(2)(aa) by regulation 16.5.

Regulation 17

67. Existing regulations 5.6.12, 5.6.13 and 5.6.14 make provision for such administrative matters relating to meetings as the requirements for notice of a meeting, proof of such notice and the place of a meeting. In addition to the amendments to these provisions consequential on, inter alia, the introduction of the new voluntary administration procedure in Part 5.3A of the Corporations Law, the provisions have been re-ordered into a more appropriate sequence, without altering the substance of the provisions.

Regulation 5.6.12 (Notice of meeting)

68. Existing paragraph 5.6.12(1)(c) provides that notice of a meeting is to be sent by prepaid post or personal delivery to the persons detailed therein. Regulation 17.1 inserts amended subregulation 5.6.12(1) which replicates details of the persons to whom notice of a meeting is to be sent in existing paragraph 5.6.12(1)(c), but which also makes provision for the giving of notice in the case of meetings of creditors and meetings of a committee of creditors under the new Part 5.3A voluntary administration procedure.

69. Given the very tight timetable for the new voluntary administration procedure under Part 5.3A of the Corporations Law, in particular the calling of the first meeting under section 436E, it is appropriate that provision be made for the service of notices of meetings under Part 5.3A by document exchange and facsimile. It is anticipated that such forms of service would also be convenient in relation to meetings convened under Parts 5.4, 5.4A, 5.5 and 5,6 of the Corporations Law.

70. New paragraph 5.6.12(1A), inserted by regulation 17.1, therefore provides that notice of a meeting may be given by sending it by facsimile transmission or by lodging it with a document exchange for delivery to the person's receiving facilities within that exchange, in addition to the existing means of service presently prescribed by existing paragraph 5.6.12(1)(c) (ie, personal delivery or prepaid post).

71. Existing paragraph 5.6.12(a) and subsection 5.6.12(6) recognise that the requirement to send notice of a meeting not less than 14 days before the date of the meeting is inappropriate in the case of a meeting of a committee of inspection.

72. The requirement for 14 days' notice will also be inappropriate in the case of the following meetings:

       the first meeting of creditors under section 436E - given that subsection 436E(3) prescribes 2 business days' notice of such a meeting;

       a meeting of creditors under section 439A to determine the future of a company under administration - given that subsection 439A(3) prescribes 5 business days' notice of such a meeting;

       a meeting of creditors under section 445F to consider the variation or termination of a deed of company arrangement - given that subsection 445F(2) prescribes 5 business days' notice of such a meeting;

       a meeting of creditors under subsection 449C(4) to ratify the appointment of a new administrator - given that subsection 449C(5) prescribes 2 business days' notice of such a meeting; or

       a meeting of a committee of creditors - given that the committee's functions (under section 436F) will be very limited and the formality of 14 days' notice of meetings will be unnecessary.

73. Accordingly, new subregulations 5.6.12(1B), (1C) and (1D), inserted by regulation 17.1, provide that while 14 days' notice of a meeting must usually be given, that period of notice is not required in the case of a meeting of creditors under sections 436E, 439A or 445F or subsection 449C(4), or a meeting of a committee of creditors or of a committee of inspection.

74. New paragraph 5.6.12(2)(aa), inserted by regulation 17.2, requires notice of a meeting of creditors under section 436E of the Corporations Law to be given in accordance with Form 529A. The new Form 529A is inserted in Schedule 1 of the Regulations by regulation 46.17 and in Schedule 2 by regulation 47.11.

75. Regulation 17.3 omits existing subregulations 5.6.12(6) and (7). Existing subregulation 5.6.12(6) is replicated in new subregulation 5.6.12(1C) and existing subregulation 5.6.12(7) is replicated in new regulation 5.6.14B.

Regulation 18

New regulations 5.6.13A and 5.6.13B

76. As discussed above in relation to regulation 17, the timetable under the new voluntary administration procedure in Part 5.3A of the Corporations Law is very tight. In particular, the first meeting of creditors under section 436E is to take place within 5 business days after the administration begins.

77. For the convenience of creditors, new regulations 5.6.13A and 5.6.13B, inserted by regulation 18.1, make provision for participation at meetings by telephone where telephone conference facilities are available. Although it is anticipated that the ability to participate by telephone will be of particular benefit to creditors in relation to meetings under Part 5.3A, the reforms in new regulations 5.6.13A and 5.6.13B are available in relation to all meetings set out in subregulation 5.6.11(2) (as amended by these regulations).

New regulation 5.6.13A If telephone conference facilities are available

78. New regulation 5.6.13A provides that if telephone conference facilities are expected to be available and the convener of the meeting considers that it will be appropriate to use those facilities, the notice of the meeting must:

       set out the relevant telephone number (new paragraph 5.6.13A(a));

       require telephone participants to provide a written statement of their details to the convenor by the second last working day before the meeting (new paragraph 5.6.13A(b)); and

       set out that the costs incurred by that participant in participating by telephone must be met by the participant and will not be reimbursed from the assets of the company (new paragraph 5.6.13A(c)).

New regulation 5.6.13B Persons, or their proxies or attorneys, participating by telephone

79. New regulation 5.6.13B requires that a convenor take all reasonable steps to ensure that a person who wishes to participate by telephone is contacted on the telephone number he or she has provided, before the start of the meeting (new subregulation 5.6.13B(1)). The convenor must also take all reasonable steps to ensure that the person can hear the proceedings and can be heard (new subregulation 5.6.13B(2)).

80. New subregulation 5.6.13B(3) provides that a person who participates in the meeting by telephone is taken to be present in person at the meeting. This technical amendment will obviate the need to amend many existing references in the Regulations to persons 'present in person .... at the meeting' to read persons 'present in person or by telephone at the meeting!.

Regulation 19

Regulation 5.6.14 (Place of meeting)

81. New subregulation 5.6.14(1), to be inserted by regulation 19.1, replicates existing regulation 5.6.14 and requires that a meeting is to be convened at the time and place that the convenor of the meeting thinks are the most convenient for the majority of persons entitled to receive notice of the meeting.

82. New subregulation 5.6.14(2) replicates the requirement in existing paragraph 5.6.12(1) that the convenor give not less than 7 days' notice of the time and place of a meeting. The requirement for 7 days' notice of the time and place of a meeting will not, however, be appropriate in the case of those meetings identified above in paragraphs 71 to 73 above which discuss the requirement for 14 days' notice of the meeting. New subregulation 5.6.14(2) therefore excludes those same meetings from the requirement in subregulation 5.6.14(1) for 7 days' notice of the time and place of the meeting.

Regulation 20

New regulation 5.6.14A Advertisement of a meeting

83. New regulation 5.6.14A, inserted by regulation 20.1, replicates the existing requirement in paragraph 5.6.12(1)(b) for advertisement of the meeting.

New regulation 5.6.14B Meetings not convened in accordance with Regulations

84. New regulation 5.6.14B, inserted by regulation 20.1, replicates the existing provision in subregulation 5.6.12(7) that a meeting may be held , notwithstanding that it has not been convened in accordance with the Regulations, if all the persons who are entitled to be present and vote at the meeting agree.

Regulation 21

Regulation 5.6.15 (Costs of convening meetings of creditors, etc.)

85. Existing subregulation 5.6.15(1) provides that where a meeting of creditors or contributories is convened at the request of a person other than a liquidator or an official manager, that person must deposit a sum of money with the liquidator or official manager as security and pay the costs of convening the meeting. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the new voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulations 21.1 and 21.2 omit the existing references to an 'official manager' in subregulation 5.6.15(1), and substitute references to an 'administrator of a company under administration or of a deed of company arrangement'. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulation 5.6.15 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

86. Existing subregulation 5.6.15(2) makes provision for the costs of convening a meeting of a committee of inspection. That subregulation is amended by regulation 21.3 to also make provision for the costs of convening a meeting of a committee of creditors under the new Part 5.3A voluntary administration procedure.

Regulation 22

Regulation 5.6.16 (Quorum)

87. Regulation 22.1 amends subregulation 5.6.16(2) to provide that a quorum will be constituted where the required number of persons are present by attorney, in addition to the existing provision that a quorum will be constituted where the required number of persons are present in person or by proxy.

88. Existing subregulation 5.6.16(4) provides that where a quorum is not present within 30 minutes of the appointed starting time, or the meeting is not otherwise sufficiently constituted, the meeting is to be adjourned to a day not more than 21 days hence. However, subsection 439B(2) of the Corporations Law, inserted by section 56 of the Act, provides that although a meeting convened under section 439A may be adjourned from time to time, it cannot be adjourned to a day that is more than 60 days after the first day on which the meeting was held. Regulation 22.2 inserts subregulation 5.6.16(4A), the effect of which is to qualify subregulation 5.6.16(4) in relation to a meeting convened under section 439A, so that any adjournment of that meeting does not contravene the provisions of subsection 439B(2).

89. New subregulation 5.6.16(4B), inserted by regulation 22.2, requires the convenor of a meeting to give notice of any adjournment of a meeting immediately to the same persons to whom notice of the original meeting was given. The failure to comply with this requirement will not, however, render the adjourned meeting incompetent, unless the Court, on the application of the convener of the meeting, or of a creditor or contributory, otherwise declares (new subregulation 5.6.16(4C)).

Regulation 23

Regulation 5.6.17 (Chairperson)

90. Existing regulation 5.6.17 makes provision for the selection of a chairperson of a meeting. If the meeting is convened by a liquidator, provisional liquidator or an official manager, that person, or a person nominated by that person, must chair the meeting.

91. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the new voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulation 23.1 omits the reference to an 'official manager' in subsection 5.6.17(1) and substitute a reference to an ' administrator of the company under administration or of a deed of company arrangement'. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulation 5.6.17 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 24

Regulation 5.6.18 (Adjournment of meeting)

92. Existing subregulation 5.6.18(1) allows a chairperson to adjourn a meeting from time to time and from place to place with the consent, or at the direction, of the meeting. However, subsection 439B(2) of the Corporations Law, inserted by section 56 of the Act, provides that a meeting convened under section 439A cannot be adjourned to a day that is more than 60 days after the first day on which the meeting was held. As a consequence, regulation 24.1 inserts subregulation 5.6.18(1A) which provides that, in the case of a meeting under section 439A, any adjournment of that meeting will be subject to the qualification that it not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.

93. Existing subregulation 5.6.18(2) provides that an adjourned meeting must be held at the place of the original meeting unless, inter alia, the liquidator, provisional liquidator or official manager otherwise orders (paragraph 5.6.18(2)(c)). As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the new voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulation 24.2 omits the reference to 'official manager of the company' in paragraph 5.6.18(2)(c), and substitute a reference to an ' administrator of a company under administration or of a deed of company arrangement'. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulation 5.6.18 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 25

Background

94. The Report of the Australian Law Reform Commission's General Insolvency Inquiry (commonly known as 'the Harmer Report') recommended that all matters requiring the decision or resolution of creditors be reduced to a single voting formula in place of the existing variety in requirements for a valid resolution by creditors. The voting formula recommended by the Harmer Report was that:

       voting be by simple majority in number of all creditors present and voting either in person, by proxy, by attorney or by such other means as may be permitted (for example by 'absentee vote');

       if two or more creditors so request, voting be by majority in number and value;

       if a vote according to majority in number and value results in a deadlock, there be provision for an application to the Court by the relevant insolvency administrator for a resolution of the conflict.

95. The Harmer Report further recommended that there should be provision for an appeal to the Court by a dissatisfied creditor.

96. However, the right of appeal to the Court in the first instance to resolve a deadlock would erode funds available to creditors. It was therefore proposed that the Harmer Report's recommendation be amended to provide that the chairperson of the meeting resolve the deadlock in the first instance by exercising a casting vote.

97. Sections 600B to 600E of the Corporations Law, inserted by section 120 of the Act, anticipate this proposal by providing that where at a meeting of creditors held under Part 5.3A or a deed of company arrangement executed by the company, or in connection with winding up the company, a resolution is paged by the casting vote of the chairperson, a creditor may apply to the Court for the variation or cancellation of the resolution. Application may be made to the Court by a person who voted against the resolution, for an order setting aside or varying the resolution (subsection 600B(2)). The Court may set aside or vary the resolution and, if it does so, make such further orders and give such directions as it thinks necessary (subsection 600B(3)). Where an order is made varying a resolution, the resolution will have effect as varied by the order (subsection 600B(4)).

98. Section 600C of the Corporations Law has a similar operation to section 600B, except that section 600C will apply where, at a meeting of creditors, a resolution is not passed by the casting vote of the chairperson, or the chairperson refuses or fails to exercise his or her casting vote.

99. Section 600D provides that the Court may make an interim order to preserve the status quo pending the outcome of an application under subsections 600B(2) or 600C(2).

       100. Section 600E provides that an act pursuant to a resolution by a meeting of creditors, before the making of an order by the Court under section 600B setting aside or varying the resolution, is valid and binding notwithstanding the making of the order.

Regulation 5.6.19 (Voting on resolutions)

101. The amendments to regulation 5.6.19 by regulations 25.1, 25.2, 25.5 and 25.6 replace existing references to 'a show of hands' with references to 'the voices'. The amendments are consequential on the amendment by regulation 18.1 inserting new regulations 5.6.13A and 5.6.13B which will allow the participation at meetings by creditors and others by the use of telephone conference facilities. In those circumstances a requirement for 'a show of hands' would not be appropriate.

102. The amendment of paragraphs 5.6.19(1)(b) and (1)(c) by regulations 25.3 and 25.4, to insert a reference to a person present 'by attorney', is a technical amendment consequential on the amendment by regulation 33.1 to insert new regulation 5.6.31A, which allows persons to vote at meetings by attorney.

103. Regulation 25.7 inserts new subregulation 5.6.19(6), which provides that where a creditor has, in an instrument creating a subordinated debt or otherwise, relinquished all or part of his or her rights to vote as a creditor, that creditor is not permitted to exercise the rights that have been relinquished.

104. Finance may be provided by subordinated creditors who agree to rank after unsecured creditors in a winding up and to temper their rights of action against the company accordingly. However, under the simplified voting arrangements in relation to the new Part 5.3A voluntary administration procedure, a subordinated creditor would have the same voting rights as other creditors, notwithstanding any contractual arrangement it may have with the company to temper its voting rights.

105. There is thus the risk that subordinated creditors may take advantage of the simplified voting procedure to improve their position by using their ability to veto proposals put by the administrator. While new subregulation 5.6.19(6) would appear to be of particular benefit in relation to meetings of creditors under Part 5.3A, it will have application to all other meetings of creditors identified by subregulation 5.6.11(2) (as amended by regulation 16.2).

Regulation 26

Amended regulation 5.6.21 (Carrying of resolutions after a poll has been demanded a meeting of creditors)

106. Existing subregulation 5.6.21 (1) provides that after a poll has been demanded at a meeting of creditors or debenture holders, a majority in number and value must vote in favour of the resolution before it will be passed. Existing subregulation 5.6.21(2) makes provision for the circumstances to which regard must be had in counting the majority on a poll at a meeting of contributories or members.

107. Regulation 26.1 omits existing regulation 5.6.21. Amended regulation 5.6.21 inserted by regulation 26.1, makes provision for those matters presently dealt with by existing subregulation 5.6.21(1), namely the carrying of a resolution after a poll has been demanded at a meeting of creditors or debenture holders (see new subregulations 5.6.21(1) and (5)). Amended regulation 5.6.22, inserted by regulation 27.1, makes provision for those matters presently dealt with by existing subregulation 5.6.21(2), namely the carrying of a resolution after a poll has been demanded at a meeting of contributories or members (see new subregulation 5.6.22(1)).

108. New subregulation 5.6.21(2) provides that a resolution is carried if, after the calling of a poll, a majority in number and value vote in favour of the resolution.

109. New subregulation 5.6.21(3) provides that a resolution is not carried if, after the calling of a poll, a majority in number and value vote against the resolution.

110. Where the vote by numbers and the vote by value arrive at different results, for example:

       a minority in number but a majority in value vote in favour of a resolution;

       a majority in number but a minority in value vote in favour of a resolution;

       a minority in number but a majority in value vote against a resolution; or

       a majority in number but a minority in value vote against a resolution.

new subregulation 5.6.21(4) provides that the chairperson may determine the outcome of the resolution by either:

       exercising a casting vote in favour of the resolution - in which case the resolution is carried; or

       exercising a casting vote against the resolution - in which case the resolution is not carried.

111. The term 'casting vote' thus has a broader meaning in this context than is usual and will allow the chairperson to effectively decide between the interests of the creditors with the preponderence in numbers and the interests of the creditors with the preponderence of value. It is envisaged that the exercise of such a casting vote would be most appropriate in circumstances such as where:

       the creditors with a majority in value have such an overwhelming interest that it is inappropriate to allow a majority in number, who do not have the same monetary interest, to carry the day, or vice versa; or

       the inability to arrive at any decision, because of continuing deadlocks, affects the welfare of the company concerned.

1.12. New subregulation 5.6.21(4) also allows the chairperson to exercise a 'casting vote' in the usual situation contemplated by that term, namely where a vote on either number or value is not decisive in that it results in an even number of votes in each. direction (ie 50:50).

Regulation 27

Amended regulation 5.6.22 Carrying of resolution after a poll has been demanded at a meeting of contributories or members

113. Regulation 27.1 omits existing regulation 5.6.22 and insert new regulation 5.6.22. New subregulations 5.6.22(1) and (2) essentially replicate existing subregulation 5.6.21(2), making provision for the carrying of a resolution after a poll has been demanded at a meeting of contributories or members. New subregulation 5.6.22(3) essentially replicates existing regulation 5.6.22 in so far as that regulation allowed the chairperson of a meeting of contributories or creditors to exercise a casting vote.

Regulation 28

Regulation 5.6.23 (Creditors who may vote)

114. Existing regulation 5.6.23 sets out the preconditions to be met by persons wishing to vote as creditors at meetings of creditors. The precondition set out in paragraph 5.6.23(1)(a) is that a person is not entitled to vote as a creditor unless his or her debt or claim has been admitted wholly or in part by the liquidator or official manager.

115. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulation 28.1 omits the reference to 'official manager' in paragraph 5.6.23(1)(a) and substitutes a reference to an 'administrator of a company under administration or of a deed of company arrangement'. However, under the transitional arrangements in paragraph 49.1(c) of these regulations, regulation 5.6.23 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 29

Regulation 5.6.24 (Votes of secured creditors)

116. Sections 553 to 554J of the Corporations Law, inserted by sections 92 to 94 of the Act, set out in the Corporations Law the Bankruptcy Act provisions relating to, inter alia, the respective rights of secured and unsecured creditors and debts provable, that had previously been incorporated into the Corporations Law by reference. One of the purposes of the proof of debt procedure is to establish the voting rights of creditors.

117. Existing regulation 5.6.24 governs the establishment of voting rights of secured creditors and sets out the information to be stated in that creditor's proof of debt. The terminology of regulation 5.6.24 is amended by regulations 29.1 and 29.2 to bring it into line with the terminology of new section 554E which makes provision in the Corporations Law for proof of debts by secured creditors. Thus, the references in paragraph 5.6.24(1)(c) and subregulation 5.6.24(2) to the assessment of the value of a security by the creditor are amended by regulations 29.1 and 29.2 to refer instead to the creditor's estimate of its value.

118. The effect of the amendment by regulation 16.2 is to import into the voting of' creditors at meetings convened under new Part 5.3A the provisions of regulations 5.6.12 to 5.6.36A, including regulation 5.6.24. Existing regulation 5.6.24 allows secured creditors to vote only to the extent of any shortfall in their security or alternatively to waive their rights to security in order to vote in respect of their whole debt or claim. However, to import the provisions of regulation 5.6.24 into the voting of creditors at meetings under Part 5.3A would be contrary to the policy of the Part 5.3A procedure that secured creditors be encouraged to take part in the voluntary administration process to ensure its success.

119. Thus, new subregulation 5.6.24(4), added by regulation 29.3, provides that regulation 5.6.24 does not apply to a meeting of creditors convened under Part 5.3A of the Corporations Law, with the result that, where a poll is demanded at a meeting of creditors under Part 5.3A, secured creditors may vote in respect of their whole debt or claim, without forfeiting their security.

Regulation 30

Regulation 5.6.25 (Creditors may be required to give up security)

120. Section 554F of the Corporations Law, inserted by section 94 of the Act, allows a liquidator to redeem a security on payment to the secured creditor of the amount of the creditor's estimate of its value. Section 554G, also inserted by section 94 of the Act, allows a secured creditor to apply to the liquidator or the Court for permission to amend a proof of debt by altering the estimated value of a security. As such, new sections 554F and 554G replace existing regulation 5.6.25 and thus existing regulation 5.6.25 is omitted by regulation 30.1.

Regulation 31

Regulation 5.6.27 (Minutes of meeting)

121. Existing subregulations 5.6.27(1) and (3) require the chairperson to draw up minutes and lodge a copy of those minutes with the ASC within one month after the meeting. In the case of the first meeting of creditors of a company under administration under section 436E of the Corporations Law, and the meeting of creditors to decide the future of the company under administration under section 439A, the period of one month is likely to be too long.

122. The first meeting of creditors under section 436E will be brief, the minutes will be easy to prepare and it is likely to be useful to have the minutes available before the second meeting of creditors under section 439A (to determine the company's future) is held within 3 to 4 weeks of the first meeting. In the case of the second meeting of creditors under section 439A, where the creditors resolve that the company execute a deed of company arrangement, that deed is to be executed within 21 days of the date of the meeting (subsection 444B(2)). It is appropriate that the minutes of that meeting be made available prior to the date on which the company is required to execute the deed of company arrangement, given the importance that the creditors will place on ensuring that the form of the deed that is executed by the company follows the form agreed on by the meeting of creditors. In the event that a creditor could establish that the form of the deed as executed was not the form of the deed agreed to by the creditors at that meeting, that creditor could take an application to the Court for an order under section 447A.

123. Accordingly, in the case of meetings held under section 436E or 439A, regulation 31 requires the chairperson to fulfil the obligations of subregulations 5.6.27(1) and (3) within 14 days of the date of that meeting.

124. Regulation 31.1 amends subregulation 5.6.27(1) by replacing the reference to the time period of within 1 month of the meeting, with a reference to the 'period specified in subregulation (6)'. Regulation 31.6 adds new subregulation 5.6.27(6) to define the specified period to mean 14 days in the case of meetings under section 436E or 439A, and 1 month in the case of other meetings.

125. Regulation 31.3 also omits the existing reference to 1 month in subregulation 5.6.27(3) and substitutes a reference to 'the period specified in subregulation (6)'.

126. Regulation 31.2 omits the existing requirement in subregulation 5.6.27(2) that a record of persons present at a meeting must be prepared in accordance with Form 531 in the case of all meetings to which subregulation 5.6.11(2) applies. It substitutes a requirement that a record be prepared of persons present at:

       a meeting of members or contributories, in accordance with new Form 531A;

       a meeting of creditors or debenture holders, in accordance with new Form 531B; and

       a meeting of a committee of inspection or a committee of creditors, in accordance with new Form 531C.

127. New Forms 531A, 531B and 531C are inserted in Schedule 1 by regulation 46.18 and in Schedule 2 by regulation 47.12.

128. The format of the new form will expand the information that is presently recorded in the case of a meeting of creditors or debenture holders to include details of the nature, and the value as estimated by the creditor, of any security held by the creditor, as well as the balance of the creditor's debt after deducting that value. It is anticipated that those additional details will be useful to the chairperson of a meeting at the calling of a poll for voting on a resolution, in determining the value of votes in favour or against that resolution.

129. Regulation 31.4 inserts subregulation 5.6.27(3A) which provides for the situation where the chairperson dies without having signed the minutes or becomes incapable, whether through illness or other cause, of signing the minutes as required by subregulation 5.6.27(1). In those circumstances the convenor of the meeting, if he or she attended the meeting, or a creditor, member or contributory who attended the meeting may sign the minutes in place of the chairperson, and may certify and lodge a copy of the minutes as required by subregulation 5.6.27(3).

130. As a consequence of the repeal of the official management procedure in Part 5.3A and the insertion of the voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulation 31.5 omits the reference to 'official manager, after a meeting of creditors or members' in subregulation 5.6.27(4), and substitutes a reference to 'administrator of a company under administration or of a deed of company arrangement, after a meeting of creditors'. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulation 5.6.27 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 32

Regulation 5.6.28 (Appointment of proxies)

131. Regulation 32.2 adds new subregulation 5.6.28(3) which provides that a person claiming to be the proxy of a person entitled to attend and vote at a meeting is not entitled to speak or vote as proxy (except in relation to the election of a chairperson) unless the instrument by which he or she is appointed as proxy, or a facsimile copy of the instrument, has been lodged with the person named in the notice of meeting for the receipt of proxies or the chairperson.

132. Consequential on the addition of subregulation 5.6.28(3), regulation 32.1 amends subregulation 5.6.28(2) to ensure that the proxy's right to speak and vote granted by subregulation 5.6.28(2) is subject to the requirements of new subregulation 5.6.28(3) as well as existing regulation 5.6.30. Existing regulation 5.6.30 provides that where an instrument appointing a proxy specifies the manner in which the proxy is to vote on a particular resolution, the proxy is not entitled to vote on the resolution except in the manner specified in the instrument.

Regulation 33

New regulation 5.6.31A Person may attend and vote by attorney

133. Regulation 33.1 inserts new regulation 5.6.31A which provides that a person's attorney may attend and vote at a meeting on that person's behalf (new subregulation 5.6.31A(1)).

134. An attorney will not, however, be entitled to vote as attorney unless the instrument by which he or she is appointed has been produced to the chairperson, or the chairperson is otherwise satisfied he or she is the duly authorised attorney of the person entitled to attend and vote at the meeting (new subregulation 5.6.31A(2)).

Regulation 34

Regulation 5.6.32 (Liquidator, etc. may act as proxy)

135. Existing regulation 5.6.32 allows a liquidator, provisional liquidator, official manager, or chairperson of a meeting, either by name or by reference to his or her office, to act as a person's general or special proxy. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the new voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulation 34.1 omits the reference to 'official manager' in paragraph 5.6.32(c) and substitutes a reference to an 'administrator of a company under administration or of a deed of company arrangement'. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulation 5.6.32 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 35

Regulation 5.6.33 (Voting by proxy if financially interested)

136. Regulation 35.2 adds new subregulation 5.6.33(3) which provides that if a person holds a special proxy to vote either for his or her appointment as administrator of the company under administration, or of a deed of company arrangement; or conversely, to vote against any resolution to remove himself or herself from office, he or she may use the proxy and vote accordingly.

137. Consequential on the insertion of new subregulation 5.6.33(3), subregulation 5.6.33(1) is amended by regulation 35.1 to provide that it is subject to new subregulation (3), in addition to subregulation (2).

Regulation 36

Regulation 5.6.34 (Liquidator, etc. may appoint deputy)

138. Existing regulation 5.6.34 allows, inter alia, an official manager who holds a proxy, but who cannot attend the meeting for which it is given, to appoint a deputy to use the proxy. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the new voluntary administration procedure in Part 5.3A, by section 56 of the Act, regulation 36.1 omits the reference to an 'official manager' in paragraph 5.6.34(b) and substitutes a reference to an 'administrator of a company under administration or of a deed of company arrangement'. However, under the transitional arrangements in paragraph 49.1 (c) of these regulations, regulation 5.6.34 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

Regulation 37

New regulation 5.6.36A Facsimile copies of proxies

139. As discussed in the paragraphs relating to regulation 17, the timetable under the new voluntary administration procedure in Part 5.3A of the Corporations Law is very tight. In particular, the time for calling the first meeting of creditors under section 436E is to take place within 5 business days after the administration begins. For the convenience of creditors, new subregulation 5.6.28(3), inserted by regulation 32.2, allows the lodgement of an instrument of appointment of a proxy by facsimile. Although it is anticipated that this facility will be of particular benefit to creditors in relation to meetings under Part 5.3A, the reform implemented by new subregulation 5.6.28(3) will be available in relation to all meetings set out in subregulation 5.6.11(2) (as amended by these regulations).

140. New subregulation 5.6.36A(1), inserted by regulation 37.1, requires that where a faxed copy of an instrument of appointment of a proxy has been lodged, the original instrument must be lodged with the person named in the notice of meeting for the receipt of proxies or the chairperson, within 72 hours after the facsimile copy is lodged.

141. A failure to comply with this requirement will not, however, invalidate the meeting or anything done at the meeting, unless the Court declares otherwise (new subregulation 5.6.36A(2)).

Regulation 38

Regulation 5.6.37 (Establishing title to priority)

142. The amendment by regulation 38.1 to existing regulation 5.6.37 to omit the reference to '5.6.38' and substitute a reference to '5.6.39', is a technical amendment consequential on the deletion of existing regulation 5.6.38 by regulation 39.

Regulation 39

Regulation 5.6.38 (Proof of debt or claim)

143. Section 553D of the Corporations Law, inserted by section 92 of the Act, makes express provision in the Corporations Law for the formal or informal proof of a debt or claim. As a result, there is now no need for existing regulation 5.6.38 and subregulation 5.6.47(1).

144. Regulation 39.1 thus omits regulation 5.6.38, and regulation 42.1 omits subregulation 5.6.47(1).

Regulation 40

New regulation 5.6.43A Debt or claim of uncertain value - appeal to Court

145. Subsection 554A(3) of the Corporations Law, inserted by section 94 of the Act, provides that a creditor may, in accordance with the Regulations, appeal against a valuation by a liquidator of the asset over which the creditor is secured.

146. New subregulation 5.6.43A(1), inserted by regulation 40.1, requires that any appeal under subsection 554A(3) must be made within 21 days of the aggrieved person becoming aware of the liquidator's estimate. The procedure in relation to any such appeal is otherwise in accordance with the appropriate court rules (new paragraph 5.6.43A(1)(b)).

147. The period of 21 days for the making of an appeal may, however, be extended by the Court (new subregulation 5.6.43A(2)).

Regulation 41

Regulation 5.6.44 (Debt or claim payable at a future time)

148. Section 554B of the Corporations Law, inserted by section 94 of the Act, provides that the amount of a debt that is admissible to proof, but that as at the relevant date was not payable by the company until an ascertained or ascertainable date ('the future date') after the relevant date, is the amount payable on the future date, reduced by the amount of discount worked out in accordance with the regulations. Currently, regulation 5.6.44 provides in similar terms, and provides for a discount of 8% to apply.

149. Regulation 41 amends existing regulation 5.6.44 to omit the duplication of provisions by omitting subregulation 5.6.44(1) and amending subregulation 5.6.44(2). The discount rate for the purposes of section 554B will remain at 8%.

Regulation 42

Regulation 5.6.47 (Admission of debt or claim without formal proof)

150. Section 553D of the Corporations Law, inserted by section 92 of the Act, makes express provision in the Corporations Law for the formal or informal proof of a debt or claim As a result, there is now no need for existing regulation 5.6.38 and subregulation 5.6.47(1).

151. Regulation 42.1 therefore omits subregulation 5.6.47(1), while existing regulation 5.6.38 is omitted by regulation 39.1.

Regulation 43

New regulation 5.6.70A Prescribed rate of interest on debts and claims from relevant date to date of payment

152. Section 563B of the Corporations Law, inserted by section 102 of the Act, provides that where the liquidator pays an amount in respect of a debt or claim, then an amount of interest is also payable at a prescribed rate.

153. New regulation 5.6.70A, inserted by regulation 43.1, prescribes the rate of 8% for the purposes of section 563B.

Regulation 44

Regulation 9.2.04 (Practical experience in auditing)

154. Regulation 44 amends regulation 9.2.04 to take account of the renumbering of Corporations Law provisions included in the Corporations Legislation Amendment Act 1991 [No 110 of 1991].

Regulation 45

New Part 9.5 - Delegation of powers and functions under the Corporations Law

New regulation 9.5.01 Prescribed functions - subsection 1345A(1) of the Corporations Law

155. Section 1345A of the Corporations Law, inserted by section 179 of the Act, allows the Commonwealth Attorney-General, who is the Minister currently responsible for the administration of the Corporations Law, to delegate to an officer of the Department, prescribed functions and powers of the Minister under the Corporations Law. Section 1345A was proclaimed to commence on 1 February 1993.

156. It is that the Attorney-General's powers under the Corporations Law in connection with company names (under subsection 367(4)), the publication in the Gazette of a register of unclaimed money and property of dissenting shareholders to a takeover scheme (under subsection 702(5)) and unclaimed property (under Part 9.7), be delegated to Departmental officers.

157. New regulation 9.5.01, inserted by regulation 45.1, prescribes the Minister's functions and powers under subsection 367(4), subsection 702(5) and Part 9.7, for the purposes of subsection 1345A(1).

Regulation 46

Schedule 1

158. Existing subregulation 1.03(1) makes provision for the prescription in Schedule 1 of the Regulations of forms for the purposes of provisions of the Corporations Law and the Regulations.

159. Regulation 46 amends Schedule 1 by inserting a number of new Items and amending and deleting others.

Regulation 46.1 New Item 1A

160. Regulation 46.1 inserts new Item 1A in Schedule 1 to prescribe new Form 105 'Cover page for office copy of a court order´ for the purposes of new regulation 1.16. New regulation 1.16, inserted by regulation 3, requires that where an order of the Court or a copy of an order is to be lodged with the ASC, it must be accompanied by a cover page (ie new Form 105) identifying the relevant provision of the Corporations Law and the nature of the order. The new Form 105 will facilitate the electronic storage and retrieval of the order by the ASC.

Regulation 46.2 New Item 2A

161. Regulation 46.2 inserts new Item 2A in Schedule 1 to prescribe new Form 207Z 'Certification of compliance with stamp duty law' for the purposes of subsection 187(3) of the Corporations Law. Under section 187, as amended by section 176 of the Act, a company that makes an allotment of shares must lodge a return of the allotment with the ASC within one month of the allotment. Where the shares are allotted as fully or partly paid up, otherwise than in cash, and the allotment is made under written contract, the company must also lodge the contract (or a certified copy of it) with the return, as well as a certificate to the effect that the contract has been duly stamped as required by any applicable law relating to stamp duty (subsection 187(3)). New Form 207Z will constitute the form of that certificate.

162. The new Form 207Z is inserted in Schedule 2 of the Regulations by regulation 47.3.

Regulation 46.3 New Item 32A

163. Regulation 46.3 inserts new Item 32A in Schedule 1 to prescribe new Form 361 'Notification of address for the purpose of service of annual return' for the purposes of subsections 335A(1) and (2) of the Corporations Law. Subsection 335A(1), inserted by section 177 of the Act, facilitates the service by the ASC of a partly completed annual return on a company under section 335, by allowing the company to notify the ASC in the prescribed form of an address for service other than its registered office (eg the mailing address of its professional agent). Subsection 335A(2), also inserted by section 177 of the Act, allows a company to notify the ASC in the prescribed form that it no longer wishes to nominate an alternative mailing address for service of documents (in which case the general provisions in section 220 of the Corporations Law for service of documents on a company would apply).

'164. New regulation 3.8.04, inserted by regulation 6, allows notification under subsections 335A(1) and (2) to be given to the ASC by an agent of the company, in lieu of the company itself (new subregulations 3.8.04(1) and (2)).

165. The amendment to Schedule 1 by regulation 46.3 prescribes Form 361 for the purposes of both subsection 335A(1) and (2) of the Corporations Law. The new Form 361 is inserted in Schedule 2 of the Regulations by regulation 47.4.

Regulation 46.4 New Item 44A

166. Regulation 46.4 inserts new Item 44A in Schedule 1 to prescribe new Form 503 'Notice of controller's intention not to exercise property rights' for the purposes of subsection 419A(3) of the Corporations Law. A discussion of the purpose of new Form 503 appears in the paragraphs relating to regulation 9.

167. The new Form 503 is inserted in Schedule 2 of the Regulations by regulation 47.5.

Regulation 46.5 Item 45

168. Existing Item 45 prescribes Form 504 for the purposes of subsection 427(1) of the Corporations Law. Regulation 46.5 amends existing Item 45 by also prescribing Form 504 for the purposes of paragraphs 427(1A)(a) and 427(1B)(a) of the Corporations Law (inserted by section 48 of the Act). The description of Form 504 in column 3 of Schedule 1 is also amended to reflect the additional purposes for which the form is prescribed. A discussion of the purposes of the amended Form 504 appears in the paragraphs relating to regulation 47.6.

169. An amended Form 504 is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.6 Item 46

170. Existing Item 46 prescribes Form 505 for the purposes of subsections 427(2) and (4), paragraphs 441(1)(a) and 441(2)(a), and subsections 458(4) and (5) and 537(1) and (2) of the Corporations Law. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, Form 505 will no longer be required for the purposes of paragraphs 441(1)(a) and 441(2)(a) and subsections 458(4) and (5). Thus the references to those former official management provisions in Column 2 of Item 46 are omitted. However, under the transitional arrangements in paragraph 49.1(d) of these regulations, Item 46 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

171. Regulation 46.6 also prescribes Form 505 for the purposes of paragraph 450A(1)(a) of the Corporations Law (inserted by section 56 of the Act) and new regulation 5.3A.03 (inserted by regulation 12.1), which each require the notification to the ASC of the appointment of an administrator of a company under administration or of a deed of company arrangement.

172. An amended Form 505 is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.1 Item 47

173. Existing Item 47 prescribes Form 506 for the purposes of subsection 427(3), paragraph 441(1)(b) and subsections 458(4) and 537(1) of the Corporations Law. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, Form 506 will no longer be required for the purposes of paragraph 441(1)(b) and subsection 458(4). Thus the references to those former official management provisions in Column 2 of Item 47 are omitted. However, under the transitional arrangements in paragraph 49.1 (d) of these regulations, Item 47 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

174. Regulation 46.7 also prescribes Form 506 for the purposes of new regulation 5.3A.04 (inserted by regulation 12.1), which requires an administrator of a company under administration or of a deed of company arrangement to notify the ASC of any change of his or her address.

175. An amended Form 506 is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.8 Item 48

176. Existing Item 48 prescribes Form 507 for the purposes of paragraph 147(2)(b), subsections 430(1), 436(4), 448(5), 475(1) and (2) and 497(5) of the Corporations Law. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, Form 507 will no longer be required for the purposes of subsections 436(4) and 448(5). Thus the references to those former official management provisions in Column 2 of Item 48 are omitted. However, under the transitional arrangements in paragraph 49.1(d) of these regulations, Item 48 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

177. Regulation 46.8 also prescribes Form 506 for the purposes of new subsection 421A(1) of the Corporations Law (inserted by section 43 of the Act), paragraph 429(2)(b) (as amended by paragraph 50(d) of the Act), subsection 438B(2) (inserted by section 56 of the Act) and paragraph 439A(4)(a) (also inserted by section 56 of the Act). A detailed discussion of the purposes of the amended Form 507 appears in the paragraphs relating to regulation 47.6.

178. An amended Form 507 is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.9 Item 50

179. Existing Item 50 prescribes Form 508 for the purposes of paragraph 411(9)(a) and subsection 432(1) of the Corporations Law. Subsection 432(1) has been amended by paragraph 53(a) of the Act to extend the obligation to lodge 6 monthly accounts with the ASC, previously only imposed on receivers, to controllers. New subsection 432(1A) requires that the accounts be lodged in the prescribed form. As a consequence, regulation 46.9 amends the existing reference to 'Subsection 432(1)' in column 2 of Item 50 to read 'Subsection 432(1A)'. In addition, Form 508 is prescribed for the purposes of regulation 5.3A.06 and clause 10 of Schedule 8A to the Regulations.

180. An amended Form 508 is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.10 Item 51

181. Existing Item 51 prescribes Form 509 for the purposes of paragraph 436(10)(a) and subparagraph 497(2)(b)(1) of die Corporations Law. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, Form 509 will no longer be required for the purposes of paragraph 436(10)(a). Thus the reference to that former official management provision in Column 2 of Item 5 1 is omitted. However, under the transitional arrangements in paragraph 49.1 (d) of these regulations, Item 5 1 as in force before the commencement of these regulations continues to apply to companies placed under official management before that date.

182. An amended Form 509 is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.11

New Item 51A

183. Regulation 46.11 inserts new Item 51A in Schedule 1 to prescribe new Form 509A 'Notice to deliver books of company to the administrator' for the purposes of subsection 438C(3) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purpose of new Form 509A appears in the paragraphs relating to regulation 47.6 - Form 509A.

184. The new Form 509A is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Item 51B

185. Regulation 46.11 inserts new Item 51B in Schedule 1 to prescribe new Form 509B 'Notice of administrator's intention not to exercise property rights' for the purposes of subsection 443B(3) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purpose of new Form 509B appears in the paragraphs relating to regulation 47.6 - Form 509B.

186. The new Form 509B is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Item 51C

187. Regulation 46.11 inserts new Item 51 C in Schedule 1 to prescribe new Form 509C 'Notice of meeting of creditors to vary or terminate deed of company arrangement' for the purposes of paragraph 445F(2)(a) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purpose of new Form 509C appears in the paragraphs relating to regulation 47.6 - Form 509C.

188. The new Form 509C is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Item 51D

189. Regulation 46.11 inserts new Item 51D in Schedule 1 to prescribe new Form 509D 'Notice of special resolution to wind up company' for the purposes of paragraph 446A(5)(a) of the Corporations Law (inserted by section 56 of the Act) and new subregulation 5.3A.07(5) (to be inserted by regulation 12.1). A discussion of the purposes of new Form 509D appears in the paragraphs relating to regulation 47.6 Form 509D.

190. The new Form 509D is inserted in Schedule 2 of the Regulations by regulation 47.6

New Item 51E

191. Regulation 46.11 inserts new Item 51E in Schedule 1 to prescribe new Form 509E 'Notice to creditors of execution of a deed of company arrangement' for the purposes of paragraph 450B(a) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purpose of new Form 509E appears in the paragraphs relating to regulation 47.6 - Form 509E.

192. The new Form 509E is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Item 51F

193. Regulation 46.11 inserts new Item 5 IF in Schedule 1 to prescribe new Form 509F 'Notice of failure to execute deed of company arrangement' for the purposes of paragraph 450C(a) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purposes of new Form 509F appears in the paragraphs relating to regulation 47.6 - Form 509F.

194. The new Form 509F is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Item 51G

195. Regulation 46.11 inserts new Item 51 G in Schedule 1 to prescribe new Form 509G 'Notice of termination of deed of company arrangement' for the purposes of paragraphs 450D(a) and (b) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purposes of new Form 509G appears in the paragraphs relating to regulation 47.6 - Form 509G.

196. The new Form 509G is inserted in Schedule 2 of the Regulations by regulation 47.6.

New Item 51H

197. Regulation 46.11 inserts new Item 5 1 H in Schedule 1 to prescribe new Form 509H 'Creditor's statutory demand for payment of debt' for the purposes of paragraph 459E(2)(e) of the Corporations Law (inserted by section 57 of the Act). A discussion of the purposes of new Form 509H appears in the paragraphs relating to regulation 47.6 - Form 509H.

198. The new Form 509H is inserted in Schedule 2 of the Regulations by regulation 47.6.

Regulation 46.12 Items 52, 53, 54, 55, 56, 57, 58 and 59

199. Existing Items 52, 53, 54, 55, 56, 57, 58 and 59 prescribe Forms 510, 511, 512, 513, 514, 515, 516 and 518 for the purposes of various provisions of the official management procedure in Part 5.3 of the Corporations Law . As a consequence of the repeal of Part 5.3 by section 56 of the Act, Forms 510, 511, 512, 513, 514, 515, 516 and 518 are no longer required and thus regulation 46.12 omits Item Nos 52, 53, 54, 55, 56, 57, 58 and 59 in Schedule 1 that prescribe those forms. However, under the transitional arrangements in paragraph 49.1(d) of these regulations, Items 52, 53, 54, 55, 56, 57, 58 and 59 as in force before the commencement of these regulations continue to apply to companies placed under official management before that date.

Regulation 46.13 Item 60

200. Existing Item 60 prescribes Form 519 for the purposes of paragraphs 470(1)(a), (b) and (c) of the Corporations Law. Paragraphs 470(1)(a), (b) and (c) require an applicant for the winding up of a company to lodge certain notices in relation to the winding up application with the ASC. Section 465A of the Corporations Law, inserted by section 62 of the Act, also requires a person who applies for a company to be wound up to lodge notice in the prescribed form with the ASC that the application has been made.

201. Regulation 46.13 amends Item 60 so that it also prescribes Form 519 for the purposes of section 465A.

202. An amended Form 519 is inserted in Schedule 2 of the Regulations by regulation 47.8.

Regulation 46.14 Item 62

203. Regulation 46.14 amends Item 62 by omitting the reference to 'subsection 496(1)' and substituting a reference to 'subsection 496(2)'.

Regulation 46.15 Item 66

204. Existing Item 66 prescribes Form 525 for the purposes of subsection 568(1) of the Corporations Law. Subsection 568(1) (prior to its amendment by the Act) provided that a liquidator may, by writing, disclaim certain property of a company. Section 108 of the Act omitted subsections 568(1) to (7) and substituted, inter alia, new subsections 568(1) and 568A(1). New subsection 568(1) adds a number of additional categories of property that a liquidator may disclaim. New subsection 568A(1) provides that as soon as practicable after disclaiming property a liquidator must give notice of the disclaimer to the ASC, to persons the liquidator knows or suspects to have an interest in the property and, in appropriate cases, to a registrar or other person who has the function of registering a transfer or transmission of property.

205. As a consequence of these amendments, regulation 46.15 amends Item 66 to omit the existing reference to 'Subsection 568(1)' and substitute a reference to 'Subsection 568A(1)'.

206. An amended Form 525 is inserted in Schedule 2 of the Regulations by regulation 47.8.

Regulation 46.16 Item 67

207. Existing regulation 5.6.03 prescribes the requirements for a notice by a liquidator of his or her intention to disclaim a lease under subsection 568(6) of the Corporations Law. Item 67 of Schedule 1 prescribes Form 526 'Notice of intention to disclaim lease' for the purposes of paragraph 568(6) and regulation 5.6.03.

208. Consequential on the omission of subsection 568(6) by paragraph 108(a) of the Act, and the omission of regulation 5.6.03 by regulation 15, Form 526 is no longer required.

209. Regulation 46.16 therefore omits Item 67 and regulation 47.9 omits Form 526.

Regulation 46.17

New Item 71A

210. Regulation 46.17 inserts new Item 71A in Schedule 1 to prescribe new Form 529A 'Notice of first meeting of creditors of company under administration' for the purposes of paragraph 5.6.12(2)(aa) (inserted by regulation 17.2). A discussion of the purposes of new Form 529A appears in the paragraphs relating to regulation 47.11 Form 529A.

211. The new Form 529A is inserted in Schedule 2 of the Regulations by regulation 47.11.

New Item 71B

212. Regulation 46.17 inserts new Item 71B in Schedule 1 to prescribe new Form 529B 'Notice of meeting of creditors to ratify appointment of administrator' for the purposes of subsection 449C(5) of the Corporations Law (inserted by section 56 of the Act). A discussion of the purposes of new Form 529B appears in the paragraphs relating to regulation 47.11 - Form 529B.

213. The new Form 529B is inserted in Schedule 2 of the Regulations by regulation 47.11.

Regulation 46,18 Item 73 and New Items 73A and 73B

214. Existing Item 73 prescribes Form 531 for the purposes of subregulation 5.6.27(2). Subregulation 5.6.27(2) requires that a chairperson of a meeting prepare and keep a record of the persons present at the meeting in accordance with Form 531.

215. Regulation 31.2 amends subregulation 5.6.27(2) to require that a record of persons present at a meeting of members or contributories be prepared in accordance with new Form 53 1 A (paragraph 5.6.27(2)(a)); that a record of persons present at a meeting of creditors or debenture holders be prepared in accordance with new Form 53 1 B (paragraph 5.6.27(2)(b)); and that a record of persons present at a meeting of a committee of inspection or a committee of creditors be prepared in accordance with new Form 53 1 C (paragraph 5.6.27(2)(c)). The aim of the amendments is to expand the information that is presently recorded in the case of a meeting of creditors or debenture holders to include details of the nature, and the value as estimated by the creditor, of any security held by the creditor, as well as the balance of the creditor's debt after deducting that value. It is anticipated that those additional details will be useful to the chairperson of a meeting at the calling of a poll for voting on a resolution, in determining the value of votes in favour or against that resolution.

216. Consequential on the amendments in regulation 31.2, regulation 46.18 amends Item 73 of Schedule 1 to prescribe new Form 531A for the purposes of new paragraph 5.6.27(2)(a). Regulation 46.18 also inserts new Item 73A to prescribe new Form 531B for the purposes of new paragraph 5.6.27(2)(b), and new Item 73B to prescribe new Form 531C for the purposes of new paragraph 5.6.27(2)(c).

Regulation 46.19 Item 123

217. Existing Item 123 prescribes Form 715 for the purposes of subsections 882(3) and 883(1) of the Corporations Law. However, Form 715 also deals with matters referred to in other subsections of sections 882 and 883. Thus regulation 46.19 amends Item 123 to prescribe Form 715 for the purposes of sections 882 and 883 generally.

Regulation 46.20

218. Regulation 46.20 amends Item 153 to replace the existing reference to 'subsection 1288(2)' in Column 2 with a reference to 'subsection 1288(1) ' and to amend the description of the form in Column 3.

Regulation 46.21

219. Regulation 46.21 amends Item 154 to replace the existing reference to 'subsection 1288(2)' in Column 2 with a reference to 'subsections 1288(1) and (5)' and to amend the description of the form in Column 3.

Regulation 47

Schedule 2

220. Schedule 2 of the Regulations sets out the forms prescribed for the purposes of provisions of the Corporations Law and the Regulations. Regulation 47, in general, amends Schedule 2 by:

       inserting new and amended forms for the purposes of new provisions of the Corporations Law inserted by the Act and new regulations inserted by these regulations;

       deleting entirely those forms used exclusively for purposes of the now repealed official management procedure in Part 5.3 of the Corporations Law; and

       omitting references to the official management procedure in those forms that are used for other purposes in addition to official management.

Regulation 47.1 New Form 105

221. Regulation 47.1 inserts new Form 105. A number of provisions of the Corporations Law and the Rules of the Courts exercising jurisdiction under the Corporations Law require that an order of the Court, or a copy of an order, be lodged with the ASC. New regulation 1.16, inserted by regulation 3.1, requires that where such an order or copy is lodged with the ASC, it must be accompanied by a cover page in Form 105 identifying the relevant provision of the Corporations Law and the nature of the order. Use of the new Form 105 will facilitate the electronic storage and retrieval of Court orders by the ASC.

222. New Form 105 is prescribed in Schedule 1 by regulation 46.1 for the purposes of regulation 1.16.

Regulation 47.2 Form 207

223. Regulation 47.2 amends Form 207 by incorporating in that form an instruction that a Form 207Z should accompany the form in circumstances where shares are allotted, or deemed to be allotted, as fully or partly paid up shares otherwise than for cash, under a contract in writing. The amendment to Form 207 by regulation 47.2 is consequential on the amendment of section 187 of the Corporations Law by section 176 of the Act.

224. Section 187 of the Corporations Law, prior to its amendment by the Act, required a company making an allotment of shares to lodge a return of the allotment with the ASC within one month of the allotment. Under the unamended section 187, where the shares are allotted as fully or partly paid up, otherwise than in cash, and the allotment was made under written contract, the company was also required to lodge the contract (or a certified copy of it) with the return (subsection 187(3)). If a certified copy of the contract was lodged, the company was required to produce to the ASC, at the same time, the duly stamped original contract (subsection 187(4)).

225. By contrast, subsection 265(4) of the Corporations Law required that a notice in respect of a charge on property of a company must be accompanied by a certificate to the effect that all documents accompanying the notice have been duly stamped as required by any applicable law relating to stamp duty.

226. The amendment of section 187 by section 176 of the Act brings section 187 into line with subsection 265(4) by requiring a company to lodge with a return as to allotment of shares a certificate to the effect that the contract has been duly stamped as required by any applicable law relating to stamp duty.

227. Regulation 46.2 inserts new Item 2A in Schedule 1 to prescribe new Form 207Z for the purposes of subsection 187(3). New Form 207Z will constitute the form of that certificate.

Regulation 47.3 New Form 207Z

228. Regulation 47.3 inserts new Form 207Z ('Certification of compliance with stamp duty law'). The purpose of this certification is discussed above in the paragraphs relating to regulation 47.2.

Regulation 47.4 New Form 361

229. Regulation 47.4 inserts new Form 361 ('Notification of address for the purpose of service of annual return') for the purposes of subsections 335A(1) and (2) of the Corporations Law. Subsection 335A(1) of the Corporations Law, inserted by section 177 of the Act, facilitates the service by the ASC of a partly completed annual return on a company under section 335, by allowing the company to notify the ASC in the prescribed form of an address for service other than its registered office (eg the mailing address of its professional agent). Subsection 335A(2), also inserted by section 177 of the Act, allows a company to notify the ASC in the prescribed form that it no longer wishes to nominate an alternative mailing address for service of documents (in which case the general provisions in section 220 of the Corporations Law for service of documents on a company would apply).

230. New regulation 3.8.04, inserted by regulation 6, allows notification under subsections 335A(1) and (2) to be given to the ASC by an agent of the company, in lieu of the company itself (new subregulations 3.8.04(1) and (2)).

231. The amendment to Schedule 1 by regulation 46.3 prescribes Form 361 for the purposes of both subsection 335A(1) and (2) of the Corporations Law.

Regulation 47.5 New Form 503

232. Regulation 47.5 inserts new Form 503 ('Notice of controller's intention not to exercise property rights'). The purpose of this notice is discussed in the paragraphs relating to regulation 9.1.

Regulation 47.6

Form 504

233. Regulation 47.6 omits the existing Form 504 and substitutes a new Form 504. The existing Form 504 makes provision for the notification to the ASC of the appointment of a receiver or a receiver and manager as required by paragraph 427(1)(a) of the Corporations Law. The amended Form 504 also makes provision for the notification to the ASC of the appointment of persons who enter into possession or take control of a corporation (whether or not as agent for the corporation), for the purpose of enforcing a charge otherwise than as receiver of that property, as required by paragraph 427(1A)(a) of the Corporations Law, inserted by section 48 of the Act.

234. It also makes provision for notification to the ASC for the purposes of paragraph 427(1B)(a) of the Corporations Law. Paragraph 427(1B)(a) requires a person who enters into possession or takes control of property of a corporation for the purpose of enforcing a charge, otherwise than as receiver of that property, to lodge notice with the ASC within 7 days that he or she has done so, unless the person who put them into possession or control has already lodged a notice under paragraph 427(1A)(a).

Form 505

235. Regulation 47.6 omits the existing Form 505 and substitutes a new Form 505. The existing Form. 505 makes provision for the notification to the ASC by an administrator of a compromise or arrangement, receiver, receiver and manager, official manager, deputy official manager, liquidator or provisional liquidator of his or her appointment or cessation as an external administrator as required by subsections 427(2) and (4), paragraphs 441(1)(a) and (2)(a), subsections 458(4) and (5) and 537(1) and (2) of the Corporations Law.

236. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the voluntary administration procedure in Part 5.3A, by section 56 of the Act, the revised Form 505 no longer makes provision for notification of the appointment or cessation of an official manager or' deputy official manager but makes provision for the notification of the appointment or cessation of an administrator of a company under administration or of an administrator of a deed of company arrangement, as required by paragraph 450A(1)(a) of the Corporations Law and regulation 5.3A.03. However, under the transitional arrangements in paragraph 49.1 (e) of these regulations, Form 505 as in force before the commencement of these regulations continues to apply in relation to companies placed under official management before that date.

237. Provision is also made in the revised Form 505 for notification of the appointment or cessation of a controller as required by subsection 427(2) and (4) of the Corporations Law, as amended by section 48 of the Act. Section 48 of the Act extends to 'controllers' the obligation previously only imposed on receivers by subsection 427(2) and (4) of the Corporations Law to notify of their appointment or cessation.

Form 506

238. Regulation 47.6 omits the existing Form 506 and substitutes a new Form 506. The existing Form 506 makes provision for the notification to the ASC by an external administrator of any change of his or her address. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law and the insertion of the voluntary administration procedure in Part 5.3A, by section 56 of the Act, provision for the notification of any change of address of an official manager or deputy official manager has been omitted and been replaced by provision for the notification of any change of address of an administrator of a company under administration or an administrator of a deed of company arrangement, as required by regulation 5.3A.04.

239. Provision is also made in the revised Form 506 for notification of any change of address of a controller as required by subsection 427(3) of the Corporations Law, as amended by section 48 of the Act.

Form 507

240. Regulation 47.6 omits the existing Form 507 and substitutes a new Form 507. The existing Form 507 is the form of the report as to the affairs of a company to be prepared for the following purposes:

       paragraph 147(2)(b) - to accompany an application to the ASC for the transfer of a company's incorporation to another jurisdiction;

       subsection 430(1) - to be submitted to a receiver, as required by that receiver, by officers or employees of a company;

       subsection 436(4) - to be prepared by a company proposing to convene a meeting of its creditors for the purpose of placing the company under official management;

       subsection 448(5) - to be laid, by the official manager, before a meeting of creditors convened to consider whether a company under official management be wound up voluntarily;

       subsection 475(1) - to be prepared by the directors and. secretary of a company and submitted to the company's liquidator appointed by the Court;

       subsection 475(2) - to be prepared by former officers or employees of the company, or persons who have taken part in the formation of the company, and submitted to the company's liquidator appointed by the Court, where requested by that liquidator; or

       subsection 497(5) - to be laid, by the directors of a company, before a meeting of creditors convened to follow a meeting of the company which resolves that the company be wound up voluntarily.

241. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, the report as to affairs is no longer required for the purposes of subsections 436(4) and 448(5). However, under the transitional arrangements in paragraph 49.1 (e) of these regulations, Form 507 as in force before the commencement of these regulations continues to apply in relation to companies placed under official management before that date.

242. In addition, the power of a receiver to require a report under subsection 430(1) has been extended to 'controllers' by the amendment to subsection 430(1) by paragraph 5 1 (a) of the Act. The revised Form 507 will remain the appropriate form of the report as to the affairs of a company to be prepared by controllers for the purposes of subsection 430(1), as amended.

243. Section 72 of the Act amends subsections 475(1) and 475(2) of the Corporations Law to require the preparation and submission of a report as to affairs under each of those subsections to a provisional liquidator appointed by the Court, in addition to the previous requirements for the submission of reports to a liquidator. The revised Form 507 is the appropriate form of the report as to the affairs of a company to be prepared for submission to a provisional liquidator, in addition to a liquidator, for the purposes of subsection 430(1), as amended.

244. The revised Form 507 is also the appropriate form of the report as to the affairs of a company to be prepared for the following additional purposes inserted into the Corporations Law by the Act:

       subsection 421A(1) (inserted by section 43 of the Act) - to be prepared by a managing controller of property of a corporation and lodged with the ASC within 2 months after the control day (a 'managing controller' is defined in section 9 of the Corporations Law to mean a receiver and manager or any other controller with management functions or powers in relation to the corporation);

       paragraph 429(2)(b) (amended by section 50 of the Act) - to be prepared by a director or secretary or local agent of a foreign company and submitted to the controller of the corporation within 14 days after the corporation receives notice from the controller of his or her appointment;

       subsection 438B(2) (inserted by section 56 of the Act) - to be prepared by the directors of a company and given to the administrator within 7 days after the administration of the company begins, or such longer period as the administrator allows;

       paragraph 439A(4)(a) (inserted by section 56 of the Act) - to be prepared by the administrator of a company under administration and to accompany the notice to creditors of the meeting to determine the company's future.

Form 508

245. Regulation 47.6 omits the existing Form 508 and substitutes a new Form 508. The existing Form 508 is that prescribed for the presentation of accounts by a scheme administrator under paragraph 411(9)(a) of the Corporations Law or by a receiver under subsection 432(1) of the Corporations Law.

246. Subsection 432(1) of the Corporations Law has been amended by paragraph 53(a) of the Act to extend the obligation to lodge 6 monthly accounts with the ASC, previously only imposed on receivers, to controllers. As a consequence, the terminology of Form 508 is amended to refer to 'controllers' in lieu of 'receivers' and to refer to 'control day' in relation to the appointment of controllers. In addition, the terminology of the amended Form 508 will allow for the use of the form by an administrator of a deed of company arrangement, where the deed incorporates the provisions of clause 10 of Schedule 8A to the Regulations.

Form 509

247. Regulation 47.6 omits the existing Form 509 and substitutes a new Form 509. The existing Form 509 is the form of the summary of affairs to be annexed to the notice of a meeting of creditors to appoint an official manager, under the now repealed paragraph 436(10)(a); or to be sent with the notice of a meeting of creditors to be convened to follow a meeting of the company which resolves that the company be wound up voluntarily, as required by subparagraph 497(2)(b)(1).

248. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, the summary of affairs is no longer required for the purposes of former paragraph 436(10)(a), and the Form 509 has been amended accordingly. However, under the transitional arrangements in paragraph 49.1 (e) of these regulations, Form 509 as in force before the commencement of these regulations continues to apply in relation to companies placed under official management before that date.

New Forms 509A, 509B, 509C, 509D, 509E, 509F and 509G

249. Regulation 47.6 inserts after Form 509, new Forms 509A, 509B, 509C, 509D, 509E, 509F and 509G.

New Form 509A

250. New Form 509A is the form of 'Notice to deliver books of company to the administrator' for the purposes of subsection 438C(3) of the Corporations Law.

251. Subsection 438C(3), inserted by section 56 of the Act, provides that the administrator of a company under administration may give written notice requiring a person to deliver to the administrator, as specified in the notice, books in the person's possession. Such a notice must specify a period of at least 3 days as the period within which the notice must be complied with (subsection 438C(4)). A person must comply with such a notice except so far as the person is entitled, as against the company and the administrator, to retain possession of the books (subsection 438C(5)).

New Form 509B

252. New Form 509B is the form of 'Notice of administrator's intention not to exercise property rights' for the purposes of subsection 443B(3) of the Corporations Law.

253. Under section 443B, inserted by section 56 of the Act, an administrator of a company under administration will have 7 days after his or her appointment to make a preliminary assessment of the position of the company and to decide whether or not property that is rented continues to be required by that company. At the end of that 7 day period the administrator will become personally liable for such rental payments. However, subsection 443B(3) allows an administrator to give to the owner or lessor of that property notice that the administrator does not propose to use or occupy the property. Where such a notice is given, the administrator will be relieved of liability in respect of that property (subsection 443B(4)). Such a notice will, however, cease to have effect if expressly revoked in writing by the administrator or where the company actually uses or asserts a right as against the owner or lessor to continue to occupy or be in possession of the property (subsections 443B(5) and (6)).

New Form 509C

254. New Form 509C is the form of 'Notice of meeting of creditors to vary or terminate deed of company arrangement' for the purposes of paragraph 445F(2)(a) of the Corporations Law.

255. Section 445F, inserted by section 56 of the Act, sets out the procedure for convening a meeting of a company's creditors to consider a variation to or the termination of a deed of company arrangement. Under subsection 445F(2), the administrator of a deed of company arrangement must give written notice of the meeting to as many creditors as reasonably practicable, as well as publish notice of the meeting. Proposed subsection 445F(3) requires that the notice which is to be provided to creditors under subsection 445F(2), namely the new Form 509C, must set out the terms of any resolution to be put to the meeting.

New Form 509D

256. New Form 509D is the form of 'Notice of special resolution to wind up company' for the purposes of paragraph 446A(5)(a) of the Corporations Law (inserted by section 56 of the Act) and new subregulation 5.3A.07(5) (to be inserted by regulation 12.1).

257. Section 446A provides for a company under administration to be deemed to have entered into a creditors' voluntary winding up, and for the administrator of the company or the administrator of the deed of company arrangement to be deemed to have been appointed as liquidator of the company, where the administration seems to be con-ling to a dead end. Under subsection 446A(5) the liquidator must lodge notice of the resolution with the ASC within 7 days (paragraph 446A(5)(a)) and publish such notice within 21 days (paragraph 446A(5)(b)).

258. New subregulation 5.3A.07(1) also provides for a company that has executed a deed of company arrangement to be deemed to have entered into a creditors' voluntary winding up in the 2 additional circumstances therein described. Under new subregulation 5.3A.07(5), the liquidator must also lodge notice of the resolution with the ASC within 7 days (paragraph 5.3A.07(5)(a)) and publish such notice within 21 days (paragraph 5.3A.07(5)(b)).

New Form 509E

259. New Form 509E is the form of 'Notice to creditors of execution of a deed of company arrangement' for the purposes of paragraph 450B(a) of the Corporations Law.

260. As soon as practicable after a deed of company arrangement is executed, the deed's administrator is required to send to each creditor a written notice of the execution of the deed (paragraph 450B(a)); publish that notice (paragraph 450B(b)) and lodge a copy of the deed with the ASC (paragraph 450B(c)).

New Form 509F

261. New Form 509F is the form of 'Notice of failure to execute deed of company arrangement' for the purposes of paragraph 450C(a) of the Corporations Law.

262. Paragraph 450C(a) of the Corporations Law requires an administrator of a deed of company arrangement, where the company has failed to execute a deed of company arrangement within 21 days of the meeting of creditors that resolves that the company execute such a deed, to lodge a notice to that effect with the ASC. Notice of the failure is also to be published as prescribed by regulation 5.3A.08 (paragraph 450C(b) of the Corporations Law).

New Form 509G

263. New Form 509G is the form of 'Notice of termination of deed of company arrangement' for the purposes of paragraphs 450D(a) and (b) of the Corporations Law.

264. Section 450D of the Corporations Law requires an administrator of a deed of company arrangement, where a deed terminates as a result of a resolution passed by the company's creditors, to lodge a notice of the termination with the ASC (paragraph 450D(a)); send such a notice to each of the company's creditors (paragraph 450D(b)) and cause such a notice to be published as prescribed by regulation 5.3A.09 (paragraph 450D(c)).

New Form 509H

265. New Form 509H is the form of 'Creditor's statutory demand for payment of debt' for the purposes of paragraph 459E(2)(e) of the Corporations Law. Section 459 provides that a person may serve on a company a demand relating to a debt that is due and payable (or two or more debts that are due and payable) whose total amount is at least the 'statutory minimum´ (subsection 459E(1)). The definition of 'statutory minimum' inserted in section 9 of the Corporations Law by section 29 of the Act provides that the relevant amount is $2,000 unless a greater amount is prescribed.

266. Paragraph 459E(2)(e) provides that the demand must be in the prescribed form.

Regulation 47.7 Forms 510, 511, 512, 513, 514, 515, 516 and 518

267. Regulation 47.7 omits those forms that were formerly used exclusively for the purposes of the now repealed official management procedure in Part 5.3 of the Corporations Law, namely Forms 510, 511, 512, 513, 514, 515, 516 and 518.

268. However, under the transitional arrangements in paragraph 49.1 (e) of these regulations, those forms as in force before the commencement of these regulations continue to apply to companies placed under official management before that date.

Regulation 47.8

Form 519

269. Regulation 47.8 omits existing Form 519 and substitutes a new Form 519. The existing Form 5 19 is that prescribed for notification to the ASC of court action relating to the winding up of a corporation for the purposes of paragraphs 470(1)(a), (b) and (c) of the Corporations Law.

270. Section 465A of the Corporations Law, inserted by section 62 of the Act, also requires that a person who applies for a company to be wound up must lodge notice in the prescribed form with the ASC that the application has been made.

271. Regulation 46.13 amends Item 60 of Schedule 1 to also prescribe the revised Form 519 for the purposes of section 465A.

272. The amendments to the existing Form 519 are technical and are designed to ensure that the revised Form 519 is appropriate for the purposes of section 465A in addition to its existing role for the purposes of paragraphs 470(1)(a), (b) and (c) of the Corporations Law.

Form 524

273. Regulation 47.8 omits existing Form 524 and substitutes an amended Form 524. The existing Form 524 is that prescribed for the presentation of a liquidator's six monthly accounts to the ASC for the purposes of subsection 539(1) of the Corporations Law.

274. The amendments incorporated in the revised Form 524 are minor and technical in nature and are not substantive.

Form 525

275. Regulation 47.8 omits existing Form 525 and substitutes an amended Form 525. The existing Form 525 is that prescribed for the purposes of subsection 568(1) of the Corporations Law. Subsection 568(1) (prior to its amendment by the Act) provided that a liquidator may, by writing, disclaim certain property of a company. Section 108 of the Act omitted subsections 568(1) to (7) and substituted, inter alia, new subsections 568(1) and 568A(1). New subsection 568(1) adds a number of additional categories of property that a liquidator may disclaim. New subsection 568A(1) provides that as soon as practicable after disclaiming property a liquidator must give notice of the disclaimer to the ASC, to persons the liquidator knows or suspects to have an interest in the property and, in appropriate cases, to a registrar or other person who has the function of registering a transfer or transmission of property.

276. The revised Form 525 is that prescribed for the purposes of new subsection 568A(1). It makes provision for the additional categories of property under new subsection 568(1) that a liquidator may disclaim.

Regulation 47.9

277. Existing regulation 5.6.03 prescribes the requirements for a notice by a liquidator of his or her intention to disclaim a lease under subsection 568(6) of the Corporations Law. Item 67 of Schedule 1 prescribes Form 526 'Notice of intention to disclaim lease' for the purposes of paragraph 568(6) and regulation 5.6.03.

278. Consequential on the omission of subsection 568(6) by paragraph 108(a) of the Act, and the omission of regulation 5.6.03 by regulation 15, Form 526 is no longer required.

279. Regulation 47.9 therefore omits Form 526.

Regulation 47.10

Form 529

280. Regulation 47.10 omits existing Form 529 and substitutes an amended Form 529 which is an appropriate form of notice of a meeting of a committee of inspection and a committee of creditors, in addition to those meetings for which the existing Form 529 makes provision.

281. Consequential on the repeal of the official management procedure in Part 5.3 of the Corporations Law, paragraph 2 of the existing Form 529, that was to be used when the meeting was called under subsection 443(1), has been omitted.

Regulation 47.11

New Form 529A

282. Regulation 47.11 inserts new Form 529A 'Notice of first meeting of creditors of company under administration' for the purposes of new paragraph 5.6.12(2)(aa) (inserted by regulation 17.2).

283. Regulation 5.6.12(2)(aa) requires that the notice of the first meeting of creditors of a company under administration, pursuant to section 436E of the Corporations Law, be in accordance with Form 529A.

284. Subsection 436E(1) of the Corporations Law sets out the purposes of such a meeting, namely, to determine whether to appoint a committee of creditors and if so, who are to be the committee's members. Subsection 436E(4) also provides that, at the meeting the company's creditors may resolve to remove the administrator (who has been appointed by the company's board, the company's liquidator or a chargee secured over the whole or substantially the whole of the company's property) and appoint someone else as administrator in his or her place.

285. Proposed Form 529A sets out, at paragraph 3, the purpose of the meeting and also indicates, at clause 4, that the meeting may resolve to replace the administrator.

New Form 529B

286. Regulation 47.11 also inserts new Form 529B 'Notice of meeting of creditors to ratify appointment of administrator' for the purposes of subsection 449C(5) of the Corporations Law.

287. Where the administrator of a company dies, becomes prohibited from acting as an administrator of the company or resigns, the person who appointed the administrator (that is, either the Court (under section 449B or subsection 449C(6)), the company (under section 436A), the liquidator or provisional liquidator of the company (under section 436B) or a person secured over the whole, or substantially the whole, of the company's assets (under section 436C)), can appoint a replacement. Within 5 business days of his or her appointment, the replacement administrator must convene a meeting of creditors to ratify that appointment, except where the appointment has been made by the Court (subsection 449C(4)). The procedure for the convening of such a meeting is set out in subsection 449C(5).

Regulation 47.12

New Forms 531A, 531B and 531C

288. Regulation 47.12 omits Form 531 'List of persons present at meeting of creditors/ members/ contributories/ debenture holders/ creditors and members/ committee of inspection' for the purposes of subregulation 5.6.27(2), and substitutes new Forms 531A, 531B and 531C.

289. The purposes of the new Forms 531A, 531B and 531C are explained in the paragraphs above relating to regulation 46.18.

Regulation 47.13

Form 903A

290. Regulation 47.13 omits existing Form 903A and substitutes a new Form 903A. Form 903A is prescribed for the purposes of subsection 1279(2) of the Corporations Law. That subsection provides that an application for registration under that section must be made in the prescribed form. Section 1279 provides, among other things, for the registration of a person as an auditor, and Form 903A is therefore prescribed for the purpose of applications to be registered as an auditor.

291. The existing Form 903A obliges an applicant for registration as an auditor to disclose whether he or she has been disqualified under the Corporations Law from participating in the management of a corporation. The Amending Act inserted a new section 1317EA into the Corporations Law. Section 1317EA allows a Court to disqualify a person who has contravened a civil penalty provision from participating in the management of a corporation for such period as the Court thinks appropriate..

292. The new Form 903A requires an applicant for registration as an auditor to disclose whether he or she is, or has ever been, disqualified from participating in the management of a corporation, including a disqualification order made under section 1317EA of the Corporations Law. It also makes a number of minor amendments intended to make the form easier to complete.

Form 903B

293. Regulation 47.13 omits existing Form 903B and substitutes a new Form 903B. Form 903B is prescribed for the purposes of subsection 1279(2) of the Corporations Law. That subsection provides that an application for registration under that section must be made in the prescribed form. Section 1279 provides, among other things, for the registration of a person as a liquidator, and Form 903B is therefore prescribed for the purpose of applications to be registered as a liquidator.

294. The existing Form 903B obliges an applicant for registration as a liquidator to disclose whether he or she has been disqualified under the Corporations Law from participating in the management of a corporation. The Amending Act inserted a new section 1317EA into the Corporations Law. Section 1317EA will allow a Court to disqualify a person who has contravened a civil penalty provision from participating in the management of a corporation for such period as the Court thinks appropriate.

295. The new Form 903B requires an applicant for registration as a liquidator to disclose whether he or she is, or has ever been, disqualified from participating in the management of a corporation, including a disqualification order made under section 1317EA of the Corporations Law. It also makes a number of minor amendments intended to make the form easier to complete.

Form 906

296. Regulation 47.13 omits the existing Form 906 and substitutes a new Form 906. Form 906 is prescribed for the purposes of subsection 1287(4) of the Corporations Law. That subsection provides that a person who is registered as an auditor, liquidator, or as a liquidator of a specified corporation must notify the ASC not later than three days after he or she first become disqualified from participating in the management of a corporation because of the effect of a number of provisions of the Corporations Law specified in that subsection.

297. The Amending Act amended subsection 1287(4) to insert a reference to section 1317EA of the Corporations Law. Section 1317EA allows a Court to disqualify a person who has contravened a civil penalty provision from participating in the management of a corporation for such period as the Court thinks appropriate.

298. The new Form 906 will facilitate a person who is registered as an auditor, liquidator, or a liquidator of a specified corporation notifying the ASC when he or she has become disqualified from participating in the management of a corporation, including a disqualification order made under section 1317EA of the Corporations Law. It also makes a number of minor amendments intended to make the form easier to complete.

Form 907

299. Regulation 47.13 omits the existing Form 907 and substitutes a new Form 907. Form 907 is prescribed for the purposes of subsections 1288(1) and (3) of the Corporations Law. Those subsections require a person who is registered as an auditor to lodge a statement every three years setting out such information as is prescribed,

300. The form currently obliges a person who is registered as an auditor to notify the ASC if he or she has become disqualified from participating in the management of a corporation because of the effect of a number of provisions of the Corporations Law.

The Amending Act inserted a new section 1317EA into the Corporations Law, which allows a Court to disqualify a person who has contravened a civil penalty provision from participating in the management of a corporation for such period as the Court thinks appropriate.

301. The new Form 907 will oblige a person who is registered as an auditor to indicate in a statement lodged under subsections 1288(1) or (3) whether he or she has become disqualified from participating in the management of a corporation because of a disqualification order made under section 1317EA of the Corporations Law. It also makes a number of minor amendments intended to make the form easier to complete.

Form 908

302. Regulation 47.13 omits the existing Form 908 and substitutes a new Form 908. Form 908 is prescribed for the purposes of subsections 1288(1), (3) and (5) of the Corporations Law. Those subsections require a person who is registered as a liquidator to lodge a statement every three years, or as required by the ASC, setting out such information as is prescribed.

303. The form currently obliges a person who is registered as a liquidator to notify the ASC if he or she has become disqualified from participating in the management of a corporation because of the effect of a number of provisions of the Corporations Law. The Amending Act inserted a new section 1317EA into the Corporations Law, which allows a Court to disqualify a person who has contravened a civil penalty provision from participating in the management of a corporation for such period as the Court thinks appropriate.

304. The new Form 908 will oblige a person who is registered as a liquidator to indicate in a statement lodged under subsection 1288(1), (3) or (5) whether he or she has become disqualified from participating in the management of a corporation because of a disqualification order made under section 1317EA of the Corporations Law. It also makes a number of minor amendments intended to make the form easier to complete.

Regulation 48 New Schedule 8A

305. New Schedule 8A of the Regulations, inserted by regulation 48.1, sets out the provisions that are taken to be included in a deed of company arrangement unless the deed otherwise provides.

306. Section 444A of the Corporations Law, inserted by section 56 of the Act, sets out what a deed of company arrangement must contain. The most important matters are listed in subsection 444A(4). Subsection 444A(5) provides that the deed is also taken to include the prescribed provisions, except so far as the deed provides otherwise. New regulation 5.3A.06, inserted by regulation 12.1, provides that for the purposes of subsection 444A(5) of the Corporations Law, the prescribed provisions are those set out in Schedule 8A.

307. There will be no compulsion to include all the prescribed provisions in a deed. The intention is merely that, by setting out a standard set of provisions in a readily accessible place, the contents of the deed which need to be settled by the meeting of creditors will be limited to essential matters, directly relevant to the particular company. The use of a standard set of provisions should also have beneficial effect over time of tending to standardise the administration of deeds of arrangement.

Regulation 49 Continued Application of old Part 5.3, etc.

308. As a consequence of the repeal of the official management procedure in Part 5.3 of the Corporations Law by section 56 of the Act, all provisions in the Regulations relating to the Part 5.3 official management procedure are omitted.

309. However, section 1380 of the Corporations Law, inserted by section 185 of the Act, makes provision for the continued application of Part 5.3 of the Corporations Law in relation to companies placed under official management before the commencement of section 56.

310. Similar transitional arrangements are contained in regulation 49 for the continued application of regulations in relation to the official management procedure for companies placed under official management before the commencement of these regulations.

311. Paragraphs 5.2.01(d) and (e) make provision for the certification of reports required to be lodged with the ASC for the purposes of repealed subsections 436(15) and 448(1) in Part 5.3 of the Corporations Law. Paragraphs 5.2.01(d) and (e) are omitted by the amendment to regulation 5.2.01 by regulation 10.2. However, paragraph 49.1 (a) preserves the operation of paragraphs 5.2.01(d) and (e) as in force before the commencement of these regulations in relation to companies placed under official management before that date.

312. Regulation 11.1 omits Part 5.3 of the Regulations, which comprises regulations 5.3.01 and 5.3.02 relating exclusively to the official management procedure. Paragraph 49.1(b), however, preserves the operation of Part 5.3 of the Regulations as in force before the commencement of these regulations in relation to companies placed under official management before that date.

313. Existing subregulation 5.6.11(2) sets out those meetings to which the provisions of regulations 5.6.12 to 5.6.36 apply. (Regulations 5.6.12 to 5.6.36 set out the procedures for the convening and conduct of, and voting at, meetings). Presently, paragraph 5.6.11(2)(a) includes meetings convened under Part 5.3 of the Corporations Law as meetings to which those regulations apply. Regulation 16.2 will, however, omit from paragraph 5.6.11(2)(a) meetings convened under Part 5.3. Once again, paragraph 49.1(c) preserves the application of regulations 5.6.11 to 5.6.36 as in force before the commencement of these regulations, to meetings of companies placed under official management before that date.

314. Existing subregulation 1.03(1) makes provision for the prescription in Schedule 1 of the Regulations of forms for the purposes of provisions of the Corporations Law and the Regulations. Regulation 46 amends Schedule 1 by, inter alia:

       deleting entirely those entries in relation to forms used exclusively for purposes of the official management procedure in Part 5.3 of the Corporations Law (namely Items 52, 53, 54, 55, 56, 57, 58 and 59); and

       omitting references to the official management procedure in those entries relating to forms that are used for other purposes in addition to official management (namely Items 46, 47, 48 and 5 1).

315. Paragraph 49.1 (d), however, preserves the operation of Items 46, 47, 48, 51, 52, 53, 54, 55, 56, 57, 58 and 59 as in force before the commencement of these regulations in relation to companies placed under official management before that date.

316. Schedule 2 of the Regulations sets out the forms prescribed for the purposes of provisions of the Corporations Law and the Regulations. Regulation 47 provides for, inter alia:

       the deletion of those forms used exclusively for the purposes of the official management procedure in Part 5.3 of the Corporations Law; and

       the amendment of those forms that are used for other purposes in addition to official management.

317. Paragraph 49.1 (e), however, preserves the operation of those forms (namely Forms 505, 506, 507, 509, 510, 511, 512, 513, 514, 515, 516 and 518) as in force before the commencement of these regulations in relation to companies placed under official management before that date.

Penalty applying to breaches of the provisions relating to information memoranda

The penalty should be $2,500 or imprisonment for 6 months, or both. This is the same as the penalty for a breach of s. 1078 and was the penalty which applied to a breach of s. 1079 before it was repealed.

Secondary trading - information memorandum - prescribed information to be included in the Corporations Regulations

The prescribed information to be contained in the information memorandum relating to securities (other than prescribed interests which will be dealt with in paragraph 2 below) is as follows:

(a)       particulars as to whether the person issuing the invitation or making the offer is acting as principal or agent and, if as agent:

(i) the name of the person's principal;

(ii) an address in Australia where that principal can be served with process; and

(iii) particulars as to the remuneration payable by the principal to the agent;

(b)       the date and place of incorporation of the corporation and the address of its registered or principal office:

(i) in its place of incorporation; and

(ii) if that place is outside Australia ~ in Australia;

(c)       the authorised share capital of the corporation, its issued share capital, its paidup share capital, the classes into which its share capital is divided and the rights of each class of shareholders in respect of capital, dividends and voting;

(d)       the dividends (if any) paid by the corporation in respect of each class of shares during each of the last 5 financial years and, if no dividend has been paid in respect of shares of a particular class during any one or more of those years, a statement to that effect;

(e)       the total amount of any outstanding debentures of the corporation, together with the rate of interest payable on those debentures;

(f)       the names and addresses of the directors;

(g)       if the securities are shares - whether or not those shares are fully paid up and, if not, to what extent they are paid up;

(h)       whether or not the securities are listed for quotation on the stock market of, or permission to deal in the securities on a stock market has been granted by, any securities exchange and, if so, the name of each such securities exchange;

(i)       where the securities are units of shares or units of debentures - the names and addresses of the persons in whom the shares or debentures are vested, the date of, and the parties to, any document defining the terms on which those shares or debentures are held, and an address in Australia where that document or a copy of that document can be inspected; and

(j)       the last audited balance-sheet of the corporation.

2. The prescribed information to be contained in the information memorandum relating to prescribed interests is as follows:

(a)       particulars as to whether the person issuing the invitation or making the offer is acting as principal or agent and, if as agent:

(i) the name of the person's principal;

(ii) an address in Australia where that principal can be served with process; and

(iii) particulars as to the remuneration payable by the principal to the agent;

(b)       the date and place of incorporation of the corporation and the address of-its registered or principal office:

(i) in its place of incorporation; and

(ii) if that place is outside Australia - in Australia;

(c)       the date and place of incorporation of the trustee or representative for holders of prescribed interests or, if the trustee or representative is a natural person, the person's name and address;

(d)       the address of the registered or principal office of the trustee or representative and, if that address is outside Australia, an address in Australia at which documents may be served on the trustee or representative;

(e)       the date on which the prescribed interest scheme was established and, if this can be ascertained, its proposed duration;

(f)       a place where the approved deed that constitutes that scheme may be inspected;

(g)       the capital contributed to the scheme, any limitation to that contribution and the extent of the liability of prescribed interest holders to make further contribution to that capital;

(h)       the classes into which rights and interests in the scheme are divided and the rights of each class of holders as to capital, income and voting;

(i)       any amount paid to prescribed interest holders in each of the last 5 years and, if no amount was paid in respect of the rights or interests of a particular class, a statement to that effect;

(j)       the total amount of outstanding debentures issued by the trustee, representative or management company for the purposes of the scheme together with the rate of interest payable in respect of the debentures;

(k)       the names and addresses of the directors of the management company;

(1)       whether there is any liability to make further payments (whether in the nature of capital or not) in respect of the prescribed interests;

(m)       whether the prescribed interests are listed for quotation on the stock market of, or permission to deal in the prescribed interests on a stock market has been granted by, a securities exchange and, if so, the name of the exchange; and

(n)       the last audited balance sheet in respect of the scheme.


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