Australian Securities and Investments Commission Corporations (Conditional Costs Schemes) Instrument 2020/38 (Cth)

ASIC Corporations (Conditional Costs Schemes) Instrument 2020/38

About this compilation

Compilation No. 2

This is a compilation of ASIC Corporations (Conditional Costs Schemes) Instrument 2020/38 as in force on 16 December 2022. It includes any commenced amendment affecting the legislative instrument to that date.

This compilation was prepared by the Australian Securities and Investments Commission.

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

Contents

Part 1—Preliminary

1    Name of legislative instrument

3    Authority

4    Definitions

Part 2—Declaration

5    Definition of managed investment scheme

Part 3—Exemption

6    Licensing

7    Hawking

8    Financial product disclosure

Part 4—Application and transitional

9    Application

10 Transitional

Endnotes

Endnote 1—Instrument history

Endnote 2—Amendment history

Part 1—Preliminary

1        Name of legislative instrument

This is the ASIC Corporations (Conditional Costs Schemes) Instrument 2020/38.

3        Authority

This instrument is made under subsections 601QA(1), 926A(2), 992B(1) and 1020F(1) of the Corporations Act 2001.

4        Definitions

In this instrument:

Act means the Corporations Act 2001.

conditional costs agreement means an agreement of the kind defined as a conditional costs agreement in section 181 of Schedule 1 (Legal Profession Uniform Law) to the Legal Profession Uniform Law Application Act 2014 of the State of Victoria as in force on 17 January 2020 whether or not in that State or for the purposes of that Act.

Part 2—Declaration

5        Definition of managed investment scheme

Chapter 5C of the Act applies to all persons as if section 9 of the Act were modified or varied as follows:

(a)     after the definition of condition, insert:

“conditional costs agreement means an agreement of the kind defined as a conditional costs agreement in section 181 of Schedule 1 (Legal Profession Uniform Law) to the Legal Profession Uniform Law Application Act 2014 of the State of Victoria as at 17 January 2020 whether or not in that State or for the purposes of that Act.”;

(b)     in the definition of managed investment scheme, after paragraph (mb) insert:

“(mba)   a scheme for participating in and conducting legal proceedings where the members of the scheme:

(i)      have or may have an entitlement to a remedy arising out of the same or similar circumstances; and

(ii)     wholly or substantially fund their legal costs under conditional costs agreements;

(mbb)     a scheme for proving claims against a company under Division 6 of Part 5.6 (including the preparation and lodgement of the proofs) where the members of the scheme:

(i)      have or may have claims against the company arising out of the same or similar circumstances; and

(ii)     wholly or substantially fund their legal costs under conditional costs agreements;”.

Part 3—Exemption

6        Licensing

A person does not have to comply with subsection 911A(1) or 911B(1) of the Act for the provision of a financial service in relation to:

(a)     an interest in a managed investment scheme (a conditional cost litigation scheme) that is a scheme for participating in and conducting legal proceedings, where the members of the scheme:

(i)      have or may have an entitlement to a remedy arising out of the same or similar circumstances; and

(ii)     wholly or substantially fund their legal costs under conditional costs agreements; or

(b)     an interest in a managed investment scheme (a conditional cost proof of debt scheme) that is a scheme for proving claims against a company under Division 6 of Part 5.6 of the Act (including the preparation and lodgement of the proofs) where the members of the scheme:

(i)      have or may have claims against the company arising out of the same or similar circumstances; and

(ii)     wholly or substantially fund their legal costs under conditional costs agreements; or

(c)     an arrangement (a funding product), or an interest (a funding product) in an arrangement of either of the following kind, to the extent that the arrangement or interest is a financial product other than an interest in a conditional cost litigation scheme or conditional cost proof of debt scheme:

(i)      an arrangement for participating in and conducting legal proceedings brought by or on behalf of a person where the person’s legal costs are wholly or substantially funded under a conditional cost agreement;

(ii)     an arrangement for proving claims made by a person against a company under Division 6 of Part 5.6 of the Act (including the preparation and lodgement of the proofs) where the person’s legal costs are wholly or substantially funded under a conditional cost agreement.

7        Hawking

A person does not have to comply with subsection 992A of the Act in relation to:

(a)     an interest in a conditional cost litigation scheme; or

(b)     an interest in a conditional cost proof of debt scheme; or

(c)     a funding product.

8        Financial product disclosure

A person does not have to comply with Part 7.9 of the Act in relation to:

(a)     an interest in a conditional cost litigation scheme; or

(b)     an interest in a conditional cost proof of debt scheme; or

(c)     a funding product.

Part 4—Application and transitional

9        Application

For the avoidance of doubt, the declaration in section 5 does not have effect for the purposes of section 601MB of the Act in relation to a contract entered into before the commencement of this instrument by a person to subscribe for an interest in:

(a)     a conditional cost litigation scheme; or

(b)     a conditional cost proof of debt scheme.

10      Transitional

This instrument has effect until 31 January 2026.

Endnotes

Endnote 1—Instrument history

Instrument number	Date of FRL registration	Date of commencement	Application, saving or transitional provisions
2020/38	21/1/2020 (see F2020L00034)	22/1/2020
2021/799	22/9/2021 (see F2021L01310)	5/10/2021	-
2022/1032	15/12/2022 (see F2022L01651)	16/12/2022	-

Endnote 2—Amendment history

ad. = added or inserted     am. = amended     LA = Legislation Act 2003    rep. = repealed     rs. = repealed and substituted

Provision affected	How affected
Section 2	rep. s48D LA
Section 5	am. 2022/1032
Section 7	am. 2021/799
Section 10	am. 2022/1032