Companies Regulations (Cth)
COMPANIES REGULATIONS
(#DATE 31:07:1982)
(#DATE 31:07:1982)
- In force under the Companies Act 1981
COMPANIES REGULATIONS - TABLE OF PROVISIONS TABLE
TABLE OF PROVISIONS
PART I-PRELIMINARY
Regulation
1. Citation
2. Interpretation
3. Forms
4. Compliance with forms
5. Directions and instructions to be followed
6. Particulars prescribed by forms
7. General requirements for documents
8. Annexures accompanying forms
9. Time for lodging documents
10. Affidavits and statements in writing
11. Signature of documents lodged with Commission
12. Verification or certification of a document or a copy of a document
13. Copies of orders to be lodged with Commission
14. Definition of ''authorized trustee corporation''
15. Declared stock exchanges for the purposes of the Act and of Schedule 9
16. Prescribed stock exchanges for the purpose of sub-clause 7 (5) of Schedule 7
17. Prescribed offices under sub-paragraph 8 (8) (a) (ii) of the Act
18. Prescribed amounts
PART II-ADMINISTRATION
19. Evidence of authority under sub-section 12 (3) of the Act
20. Prescribed accounting bodies
21. Prescribed universities
22. Prescribed institutions
23. Practical experience in auditing
24. Application of security under sub-section 22 (2) of the Act
25. Discharge of security under sub-section 22 (3) of the Act
26. Effect of discharge of security
27. Prescribed period for the purposes of sub-sections 27 (26) and (27) of the Act
PART III-CONSTITUTION OF COMPANIES
28. Form of notice of resolution
PART IV-PROSPECTUSES AND SECURITIES
Division 1-Prospectuses
29. Interpretation
30. Valuation of tangible property of borrowing corporation and guarantor corporations
31. Investigating accountant's report
32. Combined profits and losses
33. Corporation with no subsidiaries
34. Corporation with no subsidiaries and holding company as guarantor
35. Corporation with subsidiaries and no guarantor
36. Corporation with guarantors all of which are subsidiaries
37. Corporations with subsidiaries and a holding company which is the guarantor
38. Corporations whose guarantors comprise their holding company and subsidiaries
39. Estimate of amounts payable to or by a borrowing corporation
40. Treatment of interest, accommodation charges, service charges, &c.
41. Calculation of unearned income
42. Statement of basis or bases of accounting, &c.
43. Matters and reports for the purposes of paragraph 98 (1) (ea) of the Act
44. Agent's authority to be lodged
45. Verification of a contract not reduced to writing
Division 2-Shares and debentures
46. Notice given to company by substantial shareholder
47. Notice of change in relevant interest or relevant interests of substantial shareholder
48. Notice given to company by former substantial shareholder
49. Certified copies of profit and loss account and balance sheet
Division 3-Prescribed interests
50. Matters and things to be included in a deed
51. Prescribed matters for the purposes of sub-section 170 (4) of the Act 52. Return to be lodged under sub-section 173 (1) of the Act
Division 4-Securities
53. Prescribed securities
PART V - MANAGEMENT AND ADMINISTRATION
54. Consent to act as director
55. Certification of statutory report and auditor's report
56. Statement to accompany copy of minute
PART VI - ACCOUNTS, AUDIT AND SPECIAL INVESTIGATIONS
57. Requirements relevant to accounts and group accounts
58. Rounding off of amounts in required accounts or reports
59. Notice given by inspector
60. Expenses of persons attending for examination
61. Authentication of record of examination
PART VII - ARRANGEMENTS, RECONSTRUCTIONS, &c.
Division 1-Compromises and arrangements
62. Prescribed information for the purposes of sub-paragraph 316(1) (a) (ii) of the Act
63. Giving notice under sub-section 318(1) or (7) of the Act
Division 2-Reports and forms of account
64. Certified copies of reports
Division 3-Official management
65. Notice of special resolution extending period of official management
66. Verification of copy of report
Division 4-Winding up
67. Matters to be entered in books kept by liquidator
68. Inspection of books kept under section 416 of the Act
69. Notice of intention to disclaim lease
Division 5-Dissolution
70. Deregistration of defunct company
71. Rate of commission
PART VIII - VARIOUS TYPES OF COMPANIES
72. Certified copy of certificate of incorporation, &c.
73. Manner of certifying constituent document
74. Notice in writing of change or alteration lodged in accordance with
paragraph 515(2) (a), (e) or (f) of the Act
75. Manner of sending letter under sub-section 518(3) of the Act
76. Manner of sending letter under sub-section 518(4) of the Act
PART IX-PAYMENTS INTO AND OUT OF BANKS BY LIQUIDATORS IN
VOLUNTARY WINDINGS UP
77. Application
78. Payments into a liquidator's general account
79. Deposit of bills, notes and securities
80. Delivery of securities
81. Special bank account
82. Payments out of liquidator's general account
PART X - SPECIAL PROVISIONS APPLICABLE TO CERTAIN MEETINGS
Division 1-Application
83. Application
Division 2-Convening and holding of meetings and voting at meetings
84. Notice of meetings
85. Proof of notice
86. Place of meeting
87. Costs of convening a meeting of creditors or contributories or of a
committee of inspection
88. Quorum
89. Chairman
90. Adjournment of meeting
91. Voting on resolutions
92. Taking a poll
93. Carrying of resolutions after a poll has been duly demanded
94. Casting vote
95. Creditors who may vote
96. Votes of secured creditors
97. Creditors may be required to give up security
98. Admission and rejection of proofs for purposes of voting
99. Minutes of meeting
Division 3-Appointment of proxies and their attendance at meetings
100. Appointment of proxies
101. Instruments of proxy
102. Proxy forms to accompany notice of meetings
103. Form of proxies
104. Liquidator, provisional liquidator, official manager or chairman may act as proxy
105. Voting by proxy where financially interested
106. Liquidator, official manager or trustee may appoint deputy
107. Proxies appointed by a corporation
108. Time for lodging proxies
PART XI - PROOF OF DEBTS, CLAIMS OR TITLES TO PRIORITY
109. Establishing title to priority
110. Proof of debts or claims
111. Notice to submit particulars of debts or claims
112. Preparation of a proof of debt or claim
113. Disclosure of security
114. Discounts
115. Periodical payments
116. Debt or claim payable at a future time
117. Employees' wages
118. Production of bills of exchange and promissory notes
119. Admission of debts or claims without formal proof
120. Notice to creditors to submit formal proofs
121. Formal proof of debt or claim
122. Contents of formal proof of debt or claim
123. Costs of proof
124. Liquidator to notify receipt of proof of debt or claim
125. Time for liquidator to deal with proofs
126. Grounds of rejection and notice to creditor
127. Revocation or amendment of decision of liquidator
128. Withdrawal or variation of proof of debt or claim
129. Oaths
PART XII-SETTLEMENT OF LIST OF CONTRIBUTORIES BY LIQUIDATOR
130. Liquidator to make out provisional list of contributories
131. Time and place for settlement of list
132. Settlement of list of contributories
133. Supplementary list
134. Notice to contributories
PART XIII-DIVIDENDS AND DISTRIBUTION OF SURPLUS IN A WINDING UP
Division 1-Payment of dividends
135. Dividend payable only on admission of a debt or claim
136. Application of Part XI
137. Liquidator to give notice of intention to declare a dividend
138. Time allowed for dealing with formal proofs of debt or claim
139. Declaration and distribution of dividends
140. Rights of creditor who has not proved debt before declaration of dividend
141. Postponement of declaration
142. Payment of dividend to a person named
Division 2-Distribution of surplus
143. Distribution of surplus in a winding up by the Court
144. Distribution of surplus as directed
PART XIV-MISCELLANEOUS
145. Penalty
146. Prescribed period for appeals from decisions of the Commission
147. Certified translations of instruments
SCHEDULE 1
List of Forms
SCHEDULE 2
Forms
SCHEDULE 3
Prescribed amounts
SCHEDULE 4
Prospectus
SCHEDULE 5
Matters and things to be included in a deed pursuant to paragraph 166 (2) (b) of the Act
SCHEDULE 6
Statement required pursuant to section 170 of the Act
SCHEDULE 7
Accounts and group accounts
SCHEDULE 8
Witnesses' fees and travelling expenses
SCHEDULE 9
Schemes of arrangement
COMPANIES REGULATIONS - REG 1.
Citation
PART I-PRELIMINARY
1. These Regulations may be cited as the Companies Regulations.*1*
COMPANIES REGULATIONS - REG 2.
Interpretation
2. (1) In these Regulations, unless the contrary intention appears-
"agent" means the person named in a memorandum of appointment or power of attorney lodged under paragraph 512 (2) (e) or sub-section 514 (5), of the Act, or under the corresponding previous law;
"dividend" means, in relation to the winding up of the affairs of a company by order or resolution, the distribution, not being a return of capital, of any part of the property of the company among its creditors or contributories by the liquidator;
"local authority" means the Corporate Affairs Commission for the Territory.
"provided" means provided for in the Act or these Regulations;
"registered number" means-
(a) in relation to a corporation-the number allocated to it on its
incorporation or registration; and
(b) in relation to an auditor, a liquidator, including an official
liquidator, or a liquidator of a specified corporation-the number allocated to that person on registration as an auditor, a liquidator or a liquidator of a specified corporation, as the case may be;
"required" means required for the purposes of the Act or these Regulations;
"the Act" means the Companies Act 1981.
(2) In a form in Schedule 2, unless the contrary intention appears, a reference to a Part, Division, section, sub-section, paragraph or sub-paragraph shall be taken as a reference to that Part, Division, section, sub-section, paragraph or sub-paragraph of the Act.
COMPANIES REGULATIONS - REG 3.
Forms
3. (1) Subject to these Regulations, where a provision is specified in Column 1 or 2 of Schedule 1, the form in Schedule 2, the number of which is specified in Column 4 of Schedule 1 opposite that provision, is prescribed as the form to be used for the purposes of that provision in relation to the matter or thing described in Column 3 of Schedule 1 opposite to that provision.
(2) In these Regulations, a reference to a form by number is a reference to the form in Schedule 2 which bears that number.
COMPANIES REGULATIONS - REG 4.
Compliance with forms
4. (1) Strict compliance with the style of a form set out in Schedule 2 is not necessary, unless the Commission so requires.
(2) Strict compliance with the substance of, and provision of the information required by, a form set out in Schedule 2 is necessary unless the Commission otherwise approves.
COMPANIES REGULATIONS - REG 5.
Directions and instructions to be followed
5. A form in Schedule 2 shall be completed in accordance with such directions and instructions as are specified in, or relate to, the form.
COMPANIES REGULATIONS - REG 6.
Particulars prescribed by forms
6. Where a form in Schedule 2 requires-
(a) the furnishing of a document; or
(b) the furnishing of information or any other matter-
(i) by completing the form in the prescribed manner; or
(ii) by supplying or completing a document or other annexure to that
form,
that document, other annexure, information, or any other matter, shall be taken to be the document, other annexure, information, or any other matter, required to be furnished in pursuance of the provision of the Act or of the Regulations for the purposes of which that form is prescribed by these Regulations.
COMPANIES REGULATIONS - REG 7.
General requirements for documents
7. (1) Unless the Commission otherwise approves, a document lodged with the Commission shall-
(a) be on paper of medium weight and good quality and-
(i) in the case of the memorandum, the articles, a prospectus or a
statement under section 170-of a size not less than international sheet size A5 and not more than foolscap folio size or international sheet size A4; and
(ii) in any other case-of foolscap folio size or international sheet size
A4;
(b) subject to the Act, be clearly printed, written or otherwise produced in a manner that is permanent and will make possible a reproduction by photographic means that is satisfactory to the Commission;
(c) not be a carbon copy, or a copy reproduced by any spirit duplication method;
(d) have margins of not less than 25 millimetres on the left-hand side and not less than 13 millimetres on the right-hand side;
(e) where it comprises 2 or more sheets, be fastened together securely in the top left-hand corner;
(f) have written on the first sheet-
(i) the registered number of the corporation to which the document
relates;
(ii) the name of that corporation;
(iii) the title of the document;
(iv) the name, address and telephone number of the person by whom or on
whose behalf the document is lodged; and
(v) the words "lodged with the Commission on ";
(g) where the document is a form relating to a no liability company, be completed by inserting the words "No Liability" in place of the word "Limited";
(h) in the case of an unlimited company, have the word "Limited" omitted; and
(i) where the document contains maps or charts upon which areas have been
distinguished by colour, in addition distinguish those areas by hatching, numbering or lettering.
(2) Where the address of the office of a corporation is required, full particulars of its situation shall be specified so as to enable it to be readily located.
(3) The name of a person signing a form set out in Schedule 2 that is lodged with the Commission shall be legibly written under or alongside the signature of that person.
COMPANIES REGULATIONS - REG 8.
Annexures accompanying forms
8. (1) Where the space provided for a particular purpose in a form is insufficient to contain all the required information in relation to a particular item, that information shall be set out in an annexure.
(2) An annexure to a form shall have an identifying mark and be endorsed with the words:
This is the annexure of .......... pages marked .......... referred to in the (insert description of form) signed by me and dated............................
.............................................................................. ..
Signature(s)
and signed by each person signing the form to which the document is annexed.
(3) The pages in an annexure shall be numbered consecutively.
(4) Where a document, copy of a document, or other matter is annexed to a form, reference made in the form to the annexure shall be by its identifying mark, the number of pages in it, and a brief description of the nature of the document and its contents.
(5) A reference to an annexure includes a document, copy of a document or any other matter accompanying, attached to or annexed to a form.
COMPANIES REGULATIONS - REG 9.
Time for lodging documents
9. Where a document, including a copy of a document, is required to be lodged with the Commission and a period of time within which the document is to be lodged is not prescribed, the document shall be lodged within one month or, in the case of a document required to be lodged by a foreign company, within such further period as the Commission in special circumstances allows, after the happening of the event to which the document relates.
COMPANIES REGULATIONS - REG 10.
Affidavits and statements in writing
10. (1) Except as otherwise provided, a required affidavit or statement in writing shall be sworn or made, on behalf of a corporation, by a director, a secretary or the principal executive officer of the corporation.
(2) Where a required affidavit purports to be sworn at a place outside the Territory, the affidavit shall be sufficient if it purports to be sworn in accordance with the requirements of the law of that place.
(3) Notwithstanding sub-regulation (1), an affidavit or statement in writing that is sworn or made under and in accordance with the rules shall be considered to have been sworn or made as required.
COMPANIES REGULATIONS - REG 11.
Signature of documents lodged with Commission
11. (1) Subject to the Act and these Regulations, a document relating to a corporation that is required to be lodged by or on behalf of the corporation shall be signed-
(a) by a director or secretary or the principal executive officer of the corporation; or
(b) if the corporation is a foreign company, by a person referred to in paragraph (a), the agent of the foreign company or, if the agent is a company, by a director, or secretary or the principal executive officer of the agent.
(2) Notwithstanding sub-regulation (1), a document that is signed under and in accordance with the rules shall be considered to have been signed as required.
COMPANIES REGULATIONS - REG 12.
Verification or certification of a document or a copy of a document
12. (1) Unless otherwise provided, verification or certification of a document, or a copy of a document, that relates to a corporation and is required to be lodged by or on behalf of the corporation, shall be by a statement in writing in accordance with Form 1 signed by-
(a) a director or secretary or the principal executive officer of the corporation, being a person that is resident in Australia or an external Territory;
(b) its agent or, if the agent is a company, by a director or secretary or the principal executive officer of the agent, being a person that is resident in Australia or an external Territory; or
(c) a person enabled or required by the Act or Regulations to verify or certify the document.
(2) Verification of a document or of a copy of a document under and in accordance with the rules shall be sufficient verification for the purposes of these Regulations.
COMPANIES REGULATIONS - REG 13.
Copies of orders to be lodged with Commission
13. Where a person obtains an order of the Court under, or for the purposes of, sub-section 118 (2), section 133, sub-section 175 (5) or 205 (3) or section 212, 385, 470 or 539, of the Act, that person shall lodge an office copy of the order with the Commission.
COMPANIES REGULATIONS - REG 14.
Definition of ''authorized trustee corporation''
14. For the purposes of the definition of "authorized trustee corporation" in sub-section 5 (1) of the Act, each of the following bodies corporate is declared to be an authorized trustee corporation for the purposes of any provision in which the expression appears:
(a) Bagot's Executor and Trustee Company Limited;
(b) Bank of New South Wales Nominees Pty Limited;
(c) Burns Philp Trustee Company (Canberra) Limited;
(d) Burns Philp Trustee Company Limited;
(e) Commercial Nominees Pty Limited;
(f) Elder's Trustee and Executor Company Limited;
(g) Executor Trustee and Agency Company of South Australia Limited;
(h) Farmers' Co-operative Executors and Trustees Limited;
(i) Hunter Nominees Pty Limited;
(j) National Trustees Executors and Agency Company of Australasia
Limited;
(k) P.T.A. Nominees Limited;
(l) Permanent Trustee Company Limited;
(m) Permanent Trustee Company of New South Wales Limited;
(n) Permanent Trustee Company (Canberra) Limited;
(o) Perpetual Nominees Limited;
(p) Perpetual Trustee Company (Canberra) Limited;
(q) Perpetual Trustee Company Limited;
(r) Perpetual Trustees Australia Limited;
(s) Public Trustee of Queensland;
(t) Public Trustee of South Australia;
(u) Public Trustee of New South Wales;
(v) Public Trustee of Tasmania;
(w) Public Trustee of the State of Victoria;
(x) Public Trustee of Western Australia;
(y) Queensland Trustees Limited;
(z) Sandhurst and Northern District Trustees Executors and Agency Company Limited;
(za) T.E.A. Nominees Limited;
(zb) T.E.A. Nominees (N.S.W.) Limited;
(zc) The Equity Trustees Company of Tasmania Limited;
(zd) The Equity Trustees Executors and Agency Company Limited;
(ze) The Perpetual Executors and Trustees Association of Australia
Limited;
(zf) Perpetual Trustees (W.A.) Limited;
(zg) The Perpetual Trustees and National Executors of Tasmania Limited;
(zh) The Tasmanian Permanent Executors and Trustee Association Limited;
(zi) The Trustees Executors and Agency Company Limited;
(zj) Trustees Executors and Agency Company (Canberra) Limited;
(zk) The Union Fidelity Trustee Company of Australia Limited;
(zl) Union Trustee Company (Canberra) Limited;
(zm) West Australian Trustees Limited;
(zn) Winchcombe Carson Trustee Company (Canberra) Limited;
(zo) Winchcombe Carson Trustee Company Limited.
COMPANIES REGULATIONS - REG 15.
Declared stock exchanges for the purposes of the Act and of Schedule 9
15. (1) For the purposes of the definition of "stock exchange" in sub-section 5 (1) of the Act, "stock exchange" in paragraphs 100 (4) (a) and (b) and 552 (4) (a), of the Act, and Schedule 9 means the following stock exchanges:
(a) The Brisbane Stock Exchange Limited;
(b) The Hobart Stock Exchange;
(c) The Stock Exchange of Adelaide Limited;
(d) The Stock Exchange of Melbourne Limited;
(e) The Stock Exchange of Perth Limited;
(f) The Sydney Stock Exchange Limited.
(2) For the purposes of the definition of "stock exchange" in sub-section 5 (1) of the Act, "stock exchange" in sub-section 131 (5B) and paragraphs 134 (2) (a) and 552 (6) (h) of the Act means the following stock exchanges:
(a) The Ballarat Stock Exchange;
(b) The Bendigo Stock Exchange;
(c) The Brisbane Stock Exchange Limited;
(d) The Hobart Stock Exchange;
(e) The Stock Exchange of Adelaide Limited;
(f) The Stock Exchange of Melbourne Limited;
(g) The Stock Exchange of Newcastle Limited;
(h) The Stock Exchange of Perth Limited;
(i) The Sydney Stock Exchange Limited.
COMPANIES REGULATIONS - REG 16.
Prescribed stock exchanges for the purpose of sub-clause 7 (5) of Schedule 7
16. Each of the following stock exchanges is a stock exchange for the purposes of sub-clause 7 (5) of Schedule 7:
(a) American Stock Exchange Inc.;
(b) New York Stock Exchange Inc.;
(c) Pacific Coast Stock Exchange;
(d) The Auckland Stock Exchange;
(e) The Brisbane Stock Exchange Limited;
(f) The Christchurch Stock Exchange;
(g) The Dunedin Stock Exchange;
(h) The Hobart Stock Exchange;
(i) The Johannesburg Stock Exchange;
(j) The Mid-West Stock Exchange;
(k) The Montreal Stock Exchange;
(l) The Paris Bourse;
(m) The Stock Exchange of Adelaide Limited;
(n) The Stock Exchange, London;
(o) The Stock Exchange of Melbourne Limited;
(p) The Stock Exchange of Perth Limited;
(q) The Sydney Stock Exchange Limited;
(r) The Toronto Stock Exchange;
(s) The Wellington Stock Exchange.
COMPANIES REGULATIONS - REG 17.
Prescribed offices under sub-paragraph 8 (8) (a) (ii) of the Act
17. (1) For the purposes of sub-paragraph 8 (8) (a) (ii) of the Act, each of the following offices is prescribed:
(a) the office of Treasurer of the Commonwealth;
(b) the office of the trustee under, or continued under, Part IV, X and
XI of the Bankruptcy Act 1966 of the Commonwealth;
(c) the office of Controller of Enemy Property under the National
Security (Enemy Property) Regulations of the Commonwealth;
(d) the office of Treasurer of the State of Western Australia;
(e) the office of Commissioner for Corporate Affairs for the State of
Western Australia;
(f) the office of Public Trustee under the Public Trustee Act 1941 of the State of Western Australia;
(g) the office of Master and the office of Principal Registrar of the
Supreme Court, within the meaning of the Supreme Court Act 1935 of the State of Western Australia;
(h) the office of Treasurer of the State of Victoria;
(i) the office of Commissioner for Corporate Affairs for the State of
Victoria;
(j) the office of Public Trustee under the Public Trustee Act 1958 of the State of Victoria;
(k) the office of Master of the Supreme Court of Victoria within the
meaning of the Supreme Court Act 1958 of the State of Victoria;
(l) the office of Treasurer of the State of New South Wales;
(m) the office of Public Trustee under the Public Trustee Act, 1913, of
the State of New South Wales;
(n) the office of Master under Division 1 of Part VIII of the Supreme
Court Act, 1970, of the State of New South Wales;
(o) the office of Supervisor of Loan Fund Companies under the Loan Fund
Companies Act, 1976, of the State of New South Wales;
(p) the office of Protective Commissioner under the Mental Health Act,
1958, of the State of New South Wales;
(q) the office of Treasurer of the State of Queensland;
(r) the office of Commissioner for Corporate Affairs for the State of
Queensland;
(s) the office of Public Trustee under the Public Trustee Act 1978 of the State of Queensland;
(t) the office of Registrar under the Supreme Court Acts 1861-1980 of the State of Queensland;
(u) the office of Treasurer of the State of South Australia;
(v) the office of Curator of Prisoners Property under the Criminal Law
Consolidation Act 1935-1980 of the State of South Australia;
(w) the office of Public Trustee under the Administration and Probate Act 1919-1980 of the State of South Australia;
(x) the office of Registrar under the Supreme Court Act 1935-1980 of the
State of South Australia;
(y) the office of administrator under Chapter XLIX of the Criminal Code
of the State of Tasmania;
(z) the office of Treasurer of the State of Tasmania;
(za) the office of Commissioner for Corporate Affairs for the State of
Tasmania;
(zb) the office of Public Trustee under the Public Trust Office Act 1930
of the State of Tasmania;
(zc) the office of Registrar of the Supreme Court under the Supreme Court
Act 1959 of the State of Tasmania;
(zd) the office of Curator of Estates of Deceased Persons under the
Administration and Probate Ordinance 1929 of the Australian Capital Territory;
(ze) the office of Registrar of the Supreme Court under the Australian
Capital Territory Supreme Court Act 1933 of the Commonwealth.
(2) In sub-regulation (1), a reference to a State Act shall be construed as a reference to that State Act as amended and in force for the time being.
COMPANIES REGULATIONS - REG 18.
Prescribed amounts
18. For the purposes of an item specified in Column 1 of Schedule 3, in relation to a provision specified in Column 2 in that item, the amount specified in Column 3 in relation to that item shall be the prescribed amount.
COMPANIES REGULATIONS - REG 19.
Evidence of authority under sub-section 12 (3) of the Act
PART II-ADMINISTRATION
19. Where a person produces to a corporation or another person a document that is issued by the Commission and that document states that the person producing it may require the production of books in accordance with paragraph 12 (3) (a), (b) or (c) of the Act, as the case may be, that document shall be evidence-
(a) of the person's authority to require the production of books by that corporation or other person in accordance with the paragraph specified in that document; and
(b) of any limitation on that authority, in pursuance of sub-section 12 (4) of the Act, that may be specified in that document.
COMPANIES REGULATIONS - REG 20.
Prescribed accounting bodies
20. For the purposes of sub-paragraph 18 (2) (a) (i) or 20 (2) (a) (i) of the Act, the following are prescribed bodies:
(a) The American Institute of Certified Public Accountants;
(b) The Association of Certified and Corporate Accountants (United
Kingdom);
(c) The Institute of Chartered Accountants in England and Wales;
(d) The Institute of Chartered Accountants in Ireland;
(e) The Institute of Chartered Accountants of Scotland;
(f) New Zealand Society of Accountants;
(g) Canadian Institute of Chartered Accountants.
COMPANIES REGULATIONS - REG 21.
Prescribed universities
21. For the purposes of sub-paragraph 18 (2) (a) (ii) or 20 (2) (a) (ii) of the Act, the following are prescribed universities:
(a) Australian National University;
(b) Deakin University;
(c) James Cook University of North Queensland;
(d) Latrobe University;
(e) Macquarie University;
(f) Monash University;
(g) University of Adelaide;
(h) University of Melbourne;
(i) University of Newcastle;
(j) University of New England;
(k) University of New South Wales;
(l) University of Queensland;
(m) University of Sydney;
(n) University of Tasmania;
(o) University of Western Australia;
(p) University of Wollongong.
COMPANIES REGULATIONS - REG 22.
Prescribed institutions
22. For the purposes of sub-paragraph 18 (2) (a) (ii) or 20 (2) (a) (ii) of the Act, the following are prescribed institutions:
(a) Avondale College;
(b) Ballarat College of Advanced Education;
(c) Bendigo College of Advanced Education;
(d) Brisbane College of Advanced Education;
(e) Canberra College of Advanced Education;
(f) Capricornia Institute of Advanced Education;
(g) Caulfield Institute of Technology;
(h) Chisholm Institute of Technology;
(i) Churchlands College;
(j) Darling Downs Institute of Advanced Education;
(k) Footscray Institute of Technology;
(l) Gippsland Institute of Advanced Education;
(m) Kuring-gai College of Advanced Education;
(n) Mitchell College of Advanced Education;
(o) Nepean College of Advanced Education;
(p) N.S.W. Institute of Technology;
(q) North Brisbane College of Advanced Education;
(r) Northern Rivers College of Advanced Education;
(s) Phillip Institute of Technology;
(t) Prahran College of Advanced Education;
(u) Preston Institute of Technology;
(v) Queensland Institute of Technology;
(w) Riverina College of Advanced Education;
(x) Royal Melbourne Institute of Technology Limited;
(y) South Australian Institute of Technology;
(z) Swinburne Limited;
(za) Tasmanian College of Advanced Education;
(zb) Victoria College;
(zc) Warrnambool Institute of Advanced Education;
(zd) Western Australian Institute of Technology.
COMPANIES REGULATIONS - REG 23.
Practical experience in auditing
23. For the purposes of paragraph 18 (2) (b) of the Act, the prescribed practical experience in auditing is-
(a) (i) work in auditing under the direction of a registered company auditor for a period of not less than 3 years, including the appraisal of companies' operations and forming opinions on the matters in respect of which an auditor is required, by sub-section 285 (3) of the Act, to make statements in a report and, by sub-section 285 (4) of the Act, to form an opinion; and
(ii) at least one continuous year in the 5 years immediately preceding the
date of the application spent in the supervision of audits of companies; or
(b) such practical experience as in the opinion of the Commission is equivalent to the practical experience required in paragraph (a).
COMPANIES REGULATIONS - REG 24.
Application of security under sub-section 22 (2) of the Act
24. (1) Subject to sub-regulations (2) and (3), the security lodged by a liquidator or a liquidator of a specified corporation in accordance with sub-section 22 (1) of the Act is applicable by the local authority for the purpose of compensating a person who has suffered pecuniary loss due to the failure of that liquidator to carry out adequately and properly his duties as a liquidator or a liquidator of a specified corporation, as the case may be, whether or not the liquidator has been convicted of an offence in relation to that failure.
(2) A security shall not be applied under sub-regulation (1) for the purpose of compensating a person who has suffered pecuniary loss due to the failure of a liquidator or a liquidator of a specified corporation to carry out adequately and properly his duties unless-
(a) a claim for compensation is lodged in writing with the local authority by or on behalf of that person-
(i) not later than a date specified by the local authority, being a date
not less than 3 months after the local authority has advertised for claims for compensation to be paid out of that security, by notice published in a newspaper circulating generally in the Territory and, if the local authority so requires, in a newspaper circulating generally in any other Territory or State where the liquidator or the liquidator of a specified corporation performed his duties;
(ii) where no such notice is published-not later than 6 months after the
person became aware that he had suffered pecuniary loss due to the failure of the liquidator or liquidator of a specified corporation to carry out adequately and properly his duties; or
(iii) not later than whichever later date the local authority in a
particular case allows; and
(b) the local authority is satisfied that the claim is a proper claim.
(3) The local authority shall give the liquidator, or liquidator of a specified corporation, by whom a security has been lodged an opportunity of being heard on all relevant claims for compensation before deciding whether any person is or persons are to be compensated under sub-regulation (1).
(4) In this regulation, the pecuniary loss suffered by a person, in respect of which a claim may be lodged, means the amount of the pecuniary loss suffered by that person due to the failure of the liquidator to carry out adequately and properly his duties, together with the reasonable costs of, and disbursements incidental to, the making and proof of the claim, less the amount or value of all moneys or other benefits paid or payable to him other than by the local authority in reduction of that loss.
(5) A security lodged by a liquidator or a liquidator of a specified corporation in accordance with sub-section 22 (1) of the Act that is applied by the local authority under sub-regulation (1) shall be applied-
(a) where the amounts in respect of which claims have been lodged which have been admitted by the local authority do not in the aggregate exceed the amount of the security-in the payment in full of those amounts; or
(b) where those amounts exceed in the aggregate the amount of the security-in the payment of part of each of those claims, being the part that bears to the full amount of the claim the same proportion as the amount of the security bears to the aggregate of the amounts of those claims.
COMPANIES REGULATIONS - REG 25.
Discharge of security under sub-section 22 (3) of the Act
25. (1) For the purposes of sub-section 22 (3) of the Act-
(a) where a liquidator or a liquidator of a specified corporation ceases to be registered as such a liquidator;
(b) where there is a reduction in the potential liability of such a liquidator in relation to which a security was lodged by that liquidator; or
(c) in such other circumstances as the local authority in a particular case permits,
the local authority may on the application of the liquidator or any person who has entered into the security as surety-
(d) discharge the security wholly or in part;
(e) return wholly or in part any money or other property lodged as security; or
(f) release the surety wholly or in part.
(2) The local authority shall not exercise any power pursuant to sub-regulation (1) until 3 months after the date on which a notice in accordance with Form 8 is published-
(a) in a newspaper circulating generally in the Territory; and
(b) if the local authority so requires, in a newspaper circulating generally in any other Territory or State where the liquidator or the liquidator of a specified corporation performed his duties,
asking for particulars in writing of any claim in respect of the security to which the application relates and specifying a date on or before which any such claim is to be made.
(3) Publication of a notice referred to in sub-regulation (2) shall be arranged by, and effected at the expense of, the person making the application to the local authority.
(4) Where a liability may be imposed on a surety in relation to a claim-
(a) pursuant to a notice under sub-regulation (2); or
(b) accepted by the local authority as a proper claim,
that surety may, and, on the request of the liquidator or liquidator of a specified corporation, shall, apply to the local authority for directions as to the manner in which the security is to be dealt with and as to whether the surety should be released wholly or in part.
(5) Where an application is made to the local authority under sub-regulation (4), the local authority, on being satisfied that the liability is substantially less than the amount for which the surety is liable in respect of the security, may give directions in relation to-
(a) the variation of the instrument pursuant to which the liability of the surety arises;
(b) the return of the whole or any part of any money or other property held by the surety in respect of a potential liability that was greater than the claims presented;
(c) the reference to a court or arbitration of any matters in dispute; or
(d) the release wholly or in part of the surety.
COMPANIES REGULATIONS - REG 26.
Effect of discharge of security
26. (1) Subject to sub-regulation (2), where a security is discharged, wholly or in part, by the local authority-
(a) a claim shall not lie against, and if made shall not be recoverable from, the surety in relation to the obligation conditioned by the security, in so far as he has been released from that obligation; and
(b) the surety shall deliver up, refund, transfer or otherwise return to the liquidator the whole, or such proportion as the local authority may direct in the case of a partial discharge, of any money or other property deposited with or held by the surety to cover the potential liability of the surety under the security.
(2) Where the local authority directs that a security be discharged only in part, it may, in its directions, state that the surety is not released from the obligations relating to those claims that are specified by it in those directions, and the surety shall remain subject to any claims that are so specified.
COMPANIES REGULATIONS - REG 27.
Prescribed period for the purposes of sub-sections 27 (26) and (27)
of the Act
27. For the purposes of sub-sections 27 (26) and (27) of the Act, the prescribed period is 28 days, or such further period as the Court may allow, after the day on which notice of the decision is given in accordance with sub-section 27 (15) of the Act.
COMPANIES REGULATIONS - REG 28.
Form of notice of resolution
PART III-CONSTITUTION OF COMPANIES
28. A copy of a resolution lodged with the Commission in pursuance of sub-section 70 (1), 70 (2), 72 (2), 73 (12), 73 (13), 251 (1) or 392 (2), of the Act, shall be set out in, or in an annexure to, a notice in accordance with Form 24.
COMPANIES REGULATIONS - REG 29.
Interpretation
PART IV-PROSPECTUSES AND SECURITIES
Division 1-Prospectuses
29. In this Division and in Schedules 4 and 6-
"investigating accountant" means the registered company auditor who has made the report required to be included in the prospectus by paragraph 98 (1) (e) of the Act;
"investigating accountant's report" means a report by a registered company auditor that is included in a prospectus pursuant to paragraph 98 (1) (e) of the Act.
COMPANIES REGULATIONS - REG 30.
Valuation of tangible property of borrowing corporation and guarantor
corporations
30. For the purposes of sub-paragraph 97 (5) (b) (ii) of the Act, the investigating accountant shall, where calculating the aggregate values of tangible property of the borrowing corporation and of its guarantor corporations-
(a) do so on the values disclosed in the report made by him and included in the prospectus, pursuant to paragraph 98 (1) (e) of the Act; and
(b) adjust those values for any material amounts that are not reasonably likely to be realisable to meet the liability for the repayment of all moneys secured by the charge.
COMPANIES REGULATIONS - REG 31.
Investigating accountant's report
31. (1) The investigating accountant's report shall, where it is required to deal with the profit or loss or assets and liabilities of a corporation-
(a) in respect of the profit or loss, do so in respect of each of the 5 financial years immediately preceding the issue of the prospectus and, where accounts have been made up for a part of the financial year in which the prospectus is issued, in respect of that part; and
(b) in respect of the assets and liabilities, do so as at the end of the last financial year, or the part of the financial year, referred to in paragraph (a), whichever is the later.
(2) The investigating accountant's report shall, where it is required to deal with the combined profits and losses and combined assets and combined liabilities of a corporation and its subsidiaries or of a corporation and those of its subsidiaries that are its guarantors-
(a) in respect of the combined profits and losses, do so in respect of each of the 5 financial years immediately preceding the issue of the prospectus and, where accounts have been made up for a part of the financial year in which the prospectus issued, in respect of that part; and
(b) in respect of the combined assets and combined liabilities, do so as at the end of the last financial year, or the part of the financial year, referred to in paragraph (a), whichever is the later.
(3) For the purposes of sub-regulations (1) and (2), the last financial year, or the part of a financial year, in respect of which the investigating accountant's report deals with the matters referred to in those sub-regulations shall be a financial year, or a part of a financial year, that ended not more than 6 months, or, with the consent of the Commission, not more than 12 months, before the date of the prospectus.
(4) The investigating accountant's report shall deal with the rates of the dividends paid by the corporation by which the prospectus has been issued, giving particulars, in respect of each class of shares for each of the 5 financial years immediately preceding the issue of the prospectus and for the financial year in which the prospectus is issued, of the dividends that have been paid and the instances in which dividends have not been paid.
(5) The investigating accountant's report shall be presented in tabular form, in such a manner as will facilitate the comparison of equivalent amounts as among the financial years in respect of which they are provided.
(6) If, in respect of a corporation with which an investigating accountant's report is required to deal, no accounts have been made up for any part of the period of 5 years ending 3 months before the issue of the prospectus, the investigating accountant's report shall contain a statement of that fact.
COMPANIES REGULATIONS - REG 32.
Combined profits and losses
32. (1) For the purposes of regulations 35 to 38, an investigating accountant's report shall deal with the combined profits and losses, and combined assets and combined liabilities, of a corporation and its subsidiaries or of a corporation and those of its subsidiaries that are guarantors, in-
(a) a statement of consolidated profit and loss and a statement of consolidated assets and consolidated liabilities for the corporation and the subsidiaries;
(b) 2 or more statements of consolidated profit and loss and consolidated assets and consolidated liabilities together covering the corporation and the subsidiaries;
(c) a combination of one or more statements of consolidated profit and loss and consolidated assets and consolidated liabilities and one or more separate statements of profit or loss and assets and liabilities, together covering the corporation and the subsidiaries; or
(d) separate statements of profit or loss and assets and liabilities for the corporation and each of the subsidiaries.
(2) The statements prepared pursuant to paragraph (1) (a), (b), (c) or (d) shall give a true and fair view, for the purposes of the investigating accountant's report, of the combined profits and losses and the combined assets and combined liabilities of the corporation and its subsidiaries or the corporation and those of its subsidiaries which are guarantors, making allowance in relation to the profits or losses and assets and liabilities of the subsidiaries for the interests of members of the subsidiaries other than the corporation.
(3) Where a statement of consolidated profit and loss and consolidated assets and consolidated liabilities is prepared for the purposes of this Division, transactions and balances between the corporations covered by that statement shall be eliminated in determining any amounts to be included in that statement.
(4) Where the combined profits and losses and combined assets and combined liabilities of a corporation and its subsidiaries or of a corporation and those of its subsidiaries that are guarantors are dealt with otherwise than in accordance with paragraph (1) (a), the investigating accountant shall certify in his report-
(a) that for reasons set out in the certificate, it was impracticable to deal with them in accordance with paragraph (1) (a) or that it was preferable that they be dealt with in accordance with paragraph (1) (b), (c) or (d), as the case may be; and
(b) that they were not significantly affected by transactions and balances between the corporations to which they relate, except to the extent stated in the notes in the report.
COMPANIES REGULATIONS - REG 33.
Corporation with no subsidiaries
33. Where the corporation has no subsidiaries, the investigating accountant's report shall deal with the profit or loss and assets and liabilities of the corporation in a statement giving for the purposes of the report a true and fair view of the profit or loss and assets and liabilities of the corporation.
COMPANIES REGULATIONS - REG 34.
Corporation with no subsidiaries and holding company as guarantor
34. Where the corporation has no subsidiaries and its holding company is its sole guarantor, the investigating accountant's report shall deal with and give a true and fair view of-
(a) the profit or loss and assets and liabilities of the corporation on its own; and
(b) the profit or loss and assets and liabilities of the guarantor corporation on its own.
COMPANIES REGULATIONS - REG 35.
Corporation with subsidiaries and no guarantor
35. Where the corporation has subsidiaries and no guarantor, the investigating accountant's report shall deal with and give a true and fair view of-
(a) the profit or loss and assets and liabilities of the corporation on its own; and
(b) the combined profits and losses and combined assets and combined liabilities of the corporation and its subsidiaries.
COMPANIES REGULATIONS - REG 36.
Corporation with guarantors all of which are subsidiaries
36. Where the corporation has guarantors, all of which are subsidiaries, the investigating accountant's report shall deal with and give a true and fair view of-
(a) the profit or loss and assets and liabilities of the corporation on its own;
(b) the combined profits and losses and combined assets and combined liabilities of the corporation and those of its subsidiaries which are guarantors; and
(c) the combined profits and losses and combined assets and combined liabilities of the corporation and its subsidiaries, including those which are not guarantors.
COMPANIES REGULATIONS - REG 37.
Corporations with subsidiaries and a holding company which is the
guarantor
37. Where the corporation has subsidiaries and a holding company which is the only guarantor, the investigating accountant's report shall deal with and give a true and fair view of-
(a) the profit or loss and assets and liabilities of the corporation on its own;
(b) the profit or loss and assets and liabilities of the holding company on its own; and
(c) the combined profits and losses and combined assets and combined liabilities of the corporation and its subsidiaries.
COMPANIES REGULATIONS - REG 38.
Corporations whose guarantors comprise their holding company and subsidiaries
38. Where the corporation has subsidiaries and a holding company, and its guarantors comprise the holding company and the subsidiaries of the corporation, the investigating accountant's report shall deal with and give a true and fair view of-
(a) the profit or loss and assets and liabilities of the corporation on its own;
(b) the profit or loss and assets and liabilities of the holding company on its own;
(c) the combined profits and losses and combined assets and combined liabilities of the corporation and those of its subsidiaries which are guarantors; and
(d) the combined profits and losses and combined assets and combined liabilities of the corporation and its subsidiaries, including those which are not guarantors.
COMPANIES REGULATIONS - REG 39.
Estimate of amounts payable to or by a borrowing corporation
39. (1) If the prospectus relates to shares in, or debentures of, a borrowing corporation, the investigating accountant's report shall state separately estimates of the amounts payable by, and the debts payable to, the corporation or the corporation and its subsidiaries, as the case may be-
(a) not later than in one year's time;
(b) later than in one year's time but not later than in 2 years' time;
(c) later than in 2 years' time but not later than in 5 years' time; and
(d) later than in 5 years' time,
calculated from the last date to which the accounts of the corporation were made up.
(2) Subject to sub-regulation (3), for the purposes of sub-regulation (1) those debts only shall be considered payable within a specified period that would be paid within that period if payment were made without default in accordance with the terms of the contract under which each debt is payable.
(3) Where the investigating accountant believes that there will be a delay in the payment of a debt, extending beyond the period within which that debt would otherwise be considered payable, that debt shall be considered as payable within the period within which the investigating accountant believes that payment of the debt will be received.
COMPANIES REGULATIONS - REG 40.
Treatment of interest, accommodation charges, service charges, &c.
40. Any sums that consist of, or are in the nature of, interest, accommodation charges, service charges, maintenance charges or insurance premiums, being income that has not been earned at the last date to which the accounts of the corporation were made up, shall not be included in any estimate stated in accordance with paragraph 39 (1) (a), (b), (c) or (d), unless the amount of unearned income so included is shown as a deduction from the estimate of the gross amount of the class of debts concerned.
COMPANIES REGULATIONS - REG 41.
Calculation of unearned income
41. The investigating accountant's report shall include a short statement of the method or methods by which the amount of unearned income has been calculated.
COMPANIES REGULATIONS - REG 42.
Statement of basis or bases of accounting, &c.
42. An investigating accountant's report shall set out-
(a) the basis or bases of accounting adopted in the preparation of the report;
(b) whether or not support by another corporation or an unrelated entity has been assumed and, if so, the nature and extent of the assumed support; and
(c) whether or not the amounts shown for assets purport to be the amounts that would have been realizable had the assets been sold at the date of the report.
COMPANIES REGULATIONS - REG 43.
Matters and reports for the purposes of paragraph 98 (1) (ea) of the Act
43. The matters specified in Part I and, where applicable, Part IV, of Schedule 4 and the reports specified in Part II of that Schedule are, subject to the provisions set out in Part III of the Schedule, the prescribed matters and the prescribed reports for the purposes of paragraph 98 (1) (ea) of the Act.
COMPANIES REGULATIONS - REG 44.
Agent's authority to be lodged
44. Where a copy of a prospectus lodged with the Commission under paragraph 103 (2) (b) of the Act is signed by an agent of a director or proposed director, the authority to do so or a verified copy of the authority shall be annexed to the copy of the prospectus.
COMPANIES REGULATIONS - REG 45.
Verification of a contract not reduced to writing
45. For the purposes of paragraph 103 (2) (d) of the Act, a statement in writing verifying a memorandum giving particulars of a contract not reduced to writing shall be made by a director or secretary or the principal executive officer of the corporation declaring that he is familiar with the particulars of the contract, and that the memorandum contains full and correct particulars of the contract.
COMPANIES REGULATIONS - REG 46.
Notice given to company by substantial shareholder
Division 2-Shares and Debentures
46. (1) Subject to sub-regulation (2), for the purposes of paragraph 137 (1) (b) of the Act the prescribed documents are-
(a) a copy of the contract, scheme or arrangement by reason of which the substantial shareholder, or an associate of the substantial shareholder, acquired the relevant interest or relevant interests by reason of which the person giving the notice became a substantial shareholder; or
(b) where the relevant interest was acquired in some circumstance other than by reason of a contract, scheme or arrangement or where such a contract, scheme or arrangement was not reduced to writing or is not readily available, a memorandum giving full particulars of that circumstance or contract, scheme or arrangement,
together with a statement in writing by the person who acquired the relevant interest verifying-
(c) in the case of a document to which paragraph (a) applies-that the copy is a true copy of the contract, scheme or arrangement of which it purports to be a copy; or
(d) in the case of a document to which paragraph (b) applies-that the memorandum contains full and correct particulars of the circumstance or contract, scheme or arrangement, as the case may be.
(2) Where the substantial shareholder or associate, as the case may be, has throughout the period of 12 months immediately preceding the date of the notice been the holder of those voting shares in which the relevant interest is held, sub-regulation (1) does not apply.
COMPANIES REGULATIONS - REG 47.
Notice of change in relevant interest or relevant interests of substantial
shareholder
47. For the purposes of paragraph 138 (1) (b) of the Act, the prescribed documents are-
(a) a copy of the contract, scheme or arrangement by reason of which the change in the relevant interest or relevant interests referred to in the notice given under sub-section 138 (1) of the Act has occurred; or
(b) where the change in the relevant interest or relevant interests occurred in some circumstance other than by reason of a contract, scheme or arrangement or where such a contract, scheme or arrangement was not reduced to writing or is not readily available, a memorandum giving full particulars of that circumstance or contract, scheme or arrangement,
together with a statement in writing by the person who holds the relevant interest or relevant interests in which the change has occurred verifying-
(c) in the case of a document to which paragraph (a) applies-that the copy is a true copy of the contract, scheme or arrangement of which it purports to be a copy; or
(d) in the case of a document to which paragraph (b) applies-that the memorandum contains full and correct particulars of the circumstance or contract, scheme or arrangement, as the case may be.
COMPANIES REGULATIONS - REG 48.
Notice given to company by former substantial shareholder
48. For the purposes of paragraph 139 (1) (b) of the Act, the prescribed documents are-
(a) a copy of the contract, scheme or arrangement by reason of which the former substantial shareholder ceased to be a substantial shareholder; or
(b) where the relevant interest ceased to be held in some circumstance other than by reason of a contract, scheme or arrangement or where such a contract, scheme or arrangement is not reduced to writing or is not readily available, a memorandum giving full particulars of that circumstance or contract, scheme or arrangement,
together with a statement in writing by the person who held the relevant interest verifying-
(c) in the case of a document to which paragraph (a) applies-that the copy is a true copy of the contract, scheme or arrangement of which it purports to be a copy; or
(d) in the case of a document to which paragraph (b) applies-that the memorandum contains full and correct particulars of the circumstance or contract, scheme or arrangement, as the case may be.
COMPANIES REGULATIONS - REG 49.
Certified copies of profit and loss account and balance sheet
49. Certified copies of a profit and loss account and balance sheet lodged with the Commission in pursuance of sub-section 158 (17) of the Act shall be true copies that are certified by the Department of Trade or some other appropriate Government Department in the United Kingdom or by the Securities and Exchange Commission of the United States of America, as the case requires, to be true copies.
COMPANIES REGULATIONS - REG 50.
Matters and things to be included in a deed
Division 3-Prescribed interests
50. For the purposes of paragraph 166 (2) (b) of the Act, the matters and things required to be included in a deed shall be those referred to in Schedule 5.
COMPANIES REGULATIONS - REG 51.
Prescribed matters for the purposes of sub-section 170 (4) of the Act
51. For the purposes of sub-section 170 (4) of the Act, the matters and reports set out in Schedule 6 are the prescribed matters and reports.
COMPANIES REGULATIONS - REG 52.
Return to be lodged under sub-section 173 (1) of the Act
52. A return lodged under sub-section 173 (1) of the Act shall be accompanied by a copy of the statement of accounts and report of the auditor prepared in relation to the financial year to which the return relates in compliance with covenants included in the relevant deed in pursuance of paragraph 168 (1) (c) of the Act.
COMPANIES REGULATIONS - REG 53.
Prescribed securities
Division 4-Securities
53. For the purposes of sub-section 189 (1) of the Act, a prescribed interest as defined in sub-section 5 (1) of the Act is a prescribed security where it is a prescribed interest in relation to which a deed has been approved pursuant to Division 6 of Part IV of the Act or a corresponding previous law and it is listed for quotation in the official list of a stock exchange that is a member of the Australian Associated Stock Exchanges.
COMPANIES REGULATIONS - REG 54.
Consent to act as director
PART V-MANAGEMENT AND ADMINISTRATION
54. Where a consent of a person to act as director, lodged with the Commission under sub-section 220 (1) of the Act, is signed by an agent of that person authorized in writing for the purpose, the authority or a verified copy of the authority shall be annexed to the consent lodged with the Commission.
COMPANIES REGULATIONS - REG 55.
Certification of statutory report and auditor's report
55. For the purposes of sub-section 239 (5) of the Act-
(a) the copy of the statutory report of a company lodged with the Commission shall be a copy that is certified by not less than 2 directors of the company; and
(b) the copy of the auditor's report lodged with the Commission shall be a copy that is personally signed by the auditor or, where the auditor is a firm, by one of the partners of that firm who is a registered company auditor.
COMPANIES REGULATIONS - REG 56.
Statement to accompany copy of minute
56. A copy of a minute lodged under sub-section 244 (7) of the Act with the Commission shall be set out in or annexed to a statement in accordance with Form 65.
COMPANIES REGULATIONS - REG 57.
Requirements relevant to accounts and group accounts
PART VI-ACCOUNTS, AUDIT AND SPECIAL INVESTIGATIONS
57. (1) Subject to sub-regulation (2), the prescribed requirements for the purposes of sub-section 269 (8) of the Act are set out in Schedule 7.
(2) In relation to accounts or group accounts made out in relation to a financial year that began before the commencement of the Act, the prescribed requirements for the purposes of sub-section 269 (8) of the Act are-
(a) those set out in the Ninth Schedule to the Companies Ordinance 1962 as in force immediately before that commencement; or
(b) those set out in Schedule 7.
COMPANIES REGULATIONS - REG 58.
Rounding off of amounts in required accounts or reports
58. (1) Pursuant to sub-section 271 (1) of the Act, where the directors of a company to which sub-regulation (6) refers prepare any required accounts or reports, they may cause to be shown, in substitution for an amount that would otherwise be required or permitted to be set out, that amount to the nearest thousand dollars or, where the amount is $500 or less, zero.
(2) Where an amount is shown to the nearest thousand dollars under sub-regulation (1), this shall be clearly indicated on each page on which it has been done.
(3) Where an amount is shown as reduced to zero under sub-regulation (1), the original amount shall be shown in full by way of a note to the account.
(4) Where an amount is shown to the nearest thousand dollars or as zero under sub-regulation (1), the corresponding amount for the previous period in respect of which such an account was prepared by the directors shall be shown accordingly in accordance with sub-regulations (2) and (3).
(5) Where an amount is shown to the nearest thousand dollars or as zero under sub-regulation (1) in a report prepared under sub-section 270 (1) or (2) of the Act, the report shall state that the company is a company of a kind referred to in sub-regulation (6) and that the amount has been rounded off in accordance with section 271 of the Act and this regulation.
(6) This regulation applies to-
(a) a company with total assets in excess of $10,000,000; and
(b) a holding company with consolidated accounts prepared for it and its related companies, if the total assets of the group of companies are in excess of $10,000,000,
but not otherwise.
COMPANIES REGULATIONS - REG 59.
Notice given by inspector
59. A notice under sub-section 295 (1) or (3) of the Act shall be given to a person by-
(a) delivering the notice to the person personally;
(b) sending the notice by prepaid post addressed to the person at his usual or last known place of residence or business; or
(c) leaving the notice at the last known place of residence or business of the person with a person apparently resident or employed at that place and apparently over the age of 16 years.
COMPANIES REGULATIONS - REG 60.
Expenses of persons attending for examination
60. For the purposes of sub-section 296 (10) of the Act, the allowances and expenses to which a person who is required to attend for examination pursuant to paragraph 295 (1) (c) of the Act is entitled are such allowances and expenses as the inspector allows in accordance with the scale in Schedule 8.
COMPANIES REGULATIONS - REG 61.
Authentication of record of examination
61. For the purposes of sub-section 298 (3) of the Act, a written record of the examination of a person under Part VII of the Act may be authenticated-
(a) by the person or persons who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by that person or those persons that the record is a true transcript of the record of examination; or
(b) by any person present at the examination or any part of the examination signing his name at the bottom of each page of the written record which records a part of the examination at which that person was present.
COMPANIES REGULATIONS - REG 62.
Prescribed information for the purposes of sub-paragraph 316 (1) (a) (ii) of
the Act
PART VII-ARRANGEMENTS, RECONSTRUCTIONS, &c.
Division 1-Compromises and arrangements
62. For the purposes of sub-paragraph 316 (1) (a) (ii) of the Act, unless the Commission otherwise allows, the explanatory statement shall-
(a) in respect of a proposed arrangement between a company and its creditors or a company and a class of its creditors, state the matters set out, and have annexed to it the reports and copies of documents referred to, in Part II of Schedule 9;
(b) in respect of a proposed arrangement between a company and its members or a company and a class of its members, other than a proposed arrangement referred to in paragraph (c), state the matters set out, and have annexed to it the reports and copies of documents referred to, in Part III of Schedule 9; and
(c) in respect of a proposed arrangement between a company and its members, or a company and a class of its members, in respect of the reconstruction of any corporation or corporations, or the amalgamation of any 2 or more corporations, where-
(i) the whole or any part of the undertaking or of the property of any
corporation is to be transferred to a trustee to be held beneficially on behalf of the unit holders of the trust; or
(ii) where the shares in any such corporation that are held by members are to be cancelled, and control is to pass to a trustee to be held on behalf of a unit holder of the trust,
state the matters set out, and have annexed to it the documents and, in any
case where the trustee of that business operates no other business in relation to that trust, the reports referred to, in Part IV of Schedule 9.
COMPANIES REGULATIONS - REG 63.
Giving notice under sub-section 318 (1) or (7) of the Act
63. The prescribed manner of giving a notice under sub-section 318 (1) or (7) of the Act to a person is by delivering it to him personally or sending it by prepaid post to his address as shown in the books of the transferor company.
COMPANIES REGULATIONS - REG 64.
Certified copies of reports
Division 2-Reports and forms of account
64. A copy of a report lodged with the Commission or of a certificate or other document required to be annexed to it shall be a copy certified in writing to be a true copy of the original-
(a) in the case of a copy lodged for the purposes of sub-paragraph 328 (1) (c) (i) of the Act-by the receiver of the property or part of the property of the company;
(b) in the case of a copy lodged for the purposes of sub-section 335 (15) of the Act-by a director or secretary or the principal executive officer of the company;
(c) in the case of a copy lodged for the purposes of sub-section 347 (11) of the Act-by the person who, immediately before the appointment of the liquidator, was the official manager of the company; and
(d) in the case of a copy lodged for the purposes of sub-section 375 (7) of the Act-by the liquidator of the company.
COMPANIES REGULATIONS - REG 65.
Notice of special resolution extending period of official management
Division 3-Official management
65. For the purposes of sub-section 344 (4) of the Act, a copy of a special resolution lodged under sub-section 344 (4) of the Act shall be set out in or annexed to a notice in accordance with Form 91.
COMPANIES REGULATIONS - REG 66.
Verification of copy of report
66. A copy of the report of the person who was the official manager of a company, lodged with the Commission under sub-section 355 (12), (13) or (14), of the Act, and of a certificate or other document annexed to it, shall be a copy verified in writing by that person to be a true copy of the original report or of that certificate or document.
COMPANIES REGULATIONS - REG 67.
Matters to be entered in books kept by liquidator
Division 4-Winding up
67. For the purposes of section 416 of the Act, the matters as to which the liquidator shall make entries in the books are those that are necessary and proper in order to give a complete and correct record of his administration of the company's affairs.
COMPANIES REGULATIONS - REG 68.
Inspection of books kept under section 416 of the Act
68. The liquidator shall cause the books kept under section 416 of the Act to be made available at his office for inspection in accordance with that section.
COMPANIES REGULATIONS - REG 69.
Notice of intention to disclaim lease
69. Notice in writing given by the liquidator in pursuance of paragraph 454 (6) (a) of the Act shall be in accordance with Form 108, and shall be given to the lessor by-
(a) delivering the notice to the lessor personally; or
(b) sending the notice by prepaid post addressed to the lessor at his usual or last known place of residence or business.
COMPANIES REGULATIONS - REG 70.
Deregistration of defunct company
Division 5-Dissolution
70. For the purposes of sub-section 459 (2) of the Act, a notice shall be given to the company by sending it by prepaid certified mail.
COMPANIES REGULATIONS - REG 71.
Rate of commission
71. For the purposes of sub-section 462 (3) of the Act, the commission payable is a commission calculated at the rate of 5%.
COMPANIES REGULATIONS - REG 72.
Certified copy of certificate of incorporation, &c.
PART VIII-VARIOUS TYPES OF COMPANIES
72. For the purposes of paragraph 512 (2) (a) of the Act, a certified copy of a document referred to in that paragraph shall be a copy that has, within the period of 3 months immediately preceding the day on which it is lodged with the Commission or within such longer period as the Commission permits, been certified to be a true copy by a person to whom the custody of the original document is committed under a law in force in the place in which the corporation is formed or incorporated, being a person who exercises under that law functions similar to those exercised by the Commission.
COMPANIES REGULATIONS - REG 73.
Manner of certifying constituent document
73. For the purposes of paragraph 512 (2) (b) of the Act, a certified copy of a constituent document shall be a copy that, within the period of 3 months immediately preceding the day on which it is lodged with the Commission or within such longer period as the Commission permits, has been certified to be a true copy-
(a) by a person to whom the custody of the original document is committed under a law in force in the place in which the corporation is formed or incorporated, being a person who exercises under that law functions similar to those exercised by the Commission;
(b) by a notary public; or
(c) by a director or secretary or the principal executive officer of the foreign company-
(i) in the case of a foreign company formed or incorporated within
Australia or an external Territory, by a statement in writing; or
(ii) in any other case, by affidavit.
COMPANIES REGULATIONS - REG 74.
Notice in writing of change or alteration lodged in accordance with
paragraph 515 (2) (a), (e) or (f) of the Act
74. (1) A notice in writing containing particulars of a change or alteration, in accordance with paragraph 515 (2) (a) of the Act, shall have annexed to it a copy of the instrument effecting the change or alteration or a copy of the document as changed or altered, being a copy that is certified to be a true copy of that instrument or document by a person mentioned in paragraph 73 (a), (b) or (c).
(2) A notice in writing containing particulars of a change or alteration, in accordance with paragraph 515 (2) (e) of the Act, shall have annexed to it-
(a) a copy of the certificate of incorporation or registration of the registered foreign company, or a document of similar effect, being a certificate or document evidencing the change or alteration; or
(b) where no such certificate or document exists, a copy of the instrument effecting the change or alteration,
being a copy that is certified by a person mentioned in paragraph 73 (a), (b) or (c) to be a true copy of that certificate, document or instrument, as the case may be.
(3) A notice in writing containing particulars of a change or alteration, in accordance with paragraph 515 (2) (f) of the Act, shall be accompanied by a memorandum in writing executed by or on behalf of the foreign company stating the powers of the local directors as changed or altered.
COMPANIES REGULATIONS - REG 75.
Manner of sending letter under sub-section 518 (3) of the Act
75. For the purposes of sub-section 518 (3) of the Act, a letter shall be sent by post.
COMPANIES REGULATIONS - REG 76.
Manner of sending letter under sub-section 518 (4) of the Act
76. For the purposes of sub-section 518 (4) of the Act, a letter shall be sent by prepaid certified mail.
COMPANIES REGULATIONS - REG 77.
Application
PART IX-PAYMENTS INTO AND OUT OF BANKS BY LIQUIDATORS IN VOLUNTARY
WINDINGS UP
77. This Part applies only to a liquidator in a voluntary winding up.
COMPANIES REGULATIONS - REG 78.
Payments into a liquidator's general account
78. A liquidator shall, unless otherwise ordered by the Court or committee of inspection-
(a) open an account to be known as the liquidator's general account; and
(b) pay all money received by him into that account, not later than 7 days after it has been received.
COMPANIES REGULATIONS - REG 79.
Deposit of bills, notes and securities
79. All bills, notes and other securities payable to the company or its liquidator shall, as soon as possible after they are received by the liquidator, be deposited by him in the bank with which the liquidator's general account has been opened, in order to be presented by the bank for acceptance and payment, or payment, as the case requires.
COMPANIES REGULATIONS - REG 80.
Delivery of securities
80. All bills, notes and other securities delivered into the bank mentioned in regulation 79 shall be delivered out on the signed request of the liquidator.
COMPANIES REGULATIONS - REG 81.
Special bank account
81. (1) The Court may give directions with respect to the payment, deposit or custody of money or securities payable to or into the possession of a liquidator.
(2) Where an application is made to the Court to authorize the liquidator to make payments into and out of a special bank account, the Court may authorize the payments for such time and on such terms as it thinks fit and may at any time order the account to be closed, if it is of the opinion that the account is no longer required.
(3) An office copy of every order of the Court made under sub-regulation (2) shall be served on the bank by the liquidator.
COMPANIES REGULATIONS - REG 82.
Payments out of liquidator's general account
82. All payments out of the liquidator's general account shall be made by cheque, and every cheque shall have the name of the company marked or written on the face of it and shall be signed by the liquidator.
COMPANIES REGULATIONS - REG 83.
Application
PART X-SPECIAL PROVISIONS APPLICABLE TO CERTAIN MEETINGS
Division 1-Application
83. (1) The provisions of this Part do not apply to, or in relation to-
(a) a meeting of the directors of a company;
(b) a meeting of the members of a company, other than a meeting referred to in paragraph (2) (a); or
(c) a meeting referred to in paragraph (2) (a) or (b), where inconsistent with a specific requirement of the Act, these Regulations or the rules; or
(d) a meeting referred to in paragraph (2) (b)-where inconsistent with a specific requirement of the covenants contained in the relevant debentures or trust deed.
(2) Subject to sub-regulation (1), the provisions of this Part apply to and in relation to the convening and conduct of, and to the voting at-
(a) a meeting convened in pursuance of Part XI or XII of the Act, that is-
(i) a meeting of members, creditors or contributors of a company;
(ii) a joint meeting of creditors and members of a company or of a company and its creditors; or
(iii) a meeting of a committee of inspection; and
(b) a meeting of holders of debentures summoned in pursuance of a covenant contained, or deemed under paragraph 154 (1) (e) of the Act to be contained, in the trust deed.
paragraph (b).
(3) For the purposes of sub-clause (2), the net amount at which any assets
stood in the company's records at the date of the commencement of section 81 of
the Companies Ordinance 1973 (after deduction of the amounts previously provided or written off for depreciation, diminution in value or amortization) shall, if
the figures relating to the period before that date cannot be obtained without
unreasonable expense or delay, be treated, until a valuation is made, as if it
were the amount of a valuation of those assets made on that date, and, where any of those assets are sold, that net amount (less the net amount at which the
assets sold stood in the records as at that date, or, if no separate amount is
available, their estimated value as at that date) shall be treated as if it were the amount of a valuation of the remaining assets made on that date.
(4) Paragraphs (2) (b) and (c) do not apply to fixed assets the replacement of which is dealt with wholly or partly-
(a) by making any provision for renewal or replacement and charging the cost
of renewal or replacement against that provision; or
(b) by charging the cost of renewal or replacement directly against revenue,
but in respect of those assets there shall be stated-
(c) the method by which their renewal or replacement is dealt with; and
(d) the aggregate amount of the provisions (if any) made for renewal or
replacement and not used.
(5) If any investments of a class for which paragraph 5 (4) (c), (d), (e) or
(f) requires a separate amount to be shown are listed for quotation on the stock market of a stock exchange in Australia or elsewhere that is specified in
regulation 16, a separate total shall be shown for the quoted investments of
each class, and there shall also be shown the aggregate quoted market value,
calculated on the official quotation of that stock market, of the quoted
investments of each class.
(6) Where the amount of any fixed asset or investment (other than an
investment the quoted market value of which has been included in an aggregate
market value in accordance with sub-clause (5)) is shown at a valuation or at a
valuation less amounts written off, there shall be shown (whether by way of note or otherwise) the date of the valuation, and whether the valuation was made by
an officer of the company or of a related corporation or by a person not being
such an officer.
(7) If the valuation referred to in sub-clause (6) was made on or after the
date of commencement of section 81 of the Companies Ordinance 1973 by a person
not being such an officer, the name of the person who valued it and particulars
of his qualifications shall be shown in the first accounts in which reference is made to the valuation.
(8) For the purposes of sub-clause (6), the expression "officer's valuation" may be used to indicate a valuation made by an officer of the company or of a
related corporation and the expression "independent valuation" may be used to indicate a valuation made by a person not being such an officer.
(9) In addition to any other information required to be shown, there shall be
shown separately (whether by way of note or otherwise), in respect of land or
interests in land acquired or held for sale or resale, to the extent to which
they have not been written off-
(a) the total cost of acquisition (exclusive of any cost of surveys, roads
and drainage and other development expenses);
(b) the total of any development expenses capitalized; and
(c) the total of any amounts of rates, taxes or interest and any other
amounts capitalized.
8. There shall be shown (whether by way of note or otherwise) in the
balance-sheet of every company that is a borrowing corporation or a guarantor
corporation a schedule setting out, separately, estimates of the amounts payable by, and the debts payable to the company-
(a) not later than one year;
(b) later than one year but not later than 2 years;
(c) later than 2 years but not later than 5 years; and
(d) later than 5 years,
after the end of the financial year.
9. The accounts of a company that is a subsidiary of another corporation shall state (whether by way of note or otherwise) the name of the corporation that the company believes to be its ultimate holding company and, if known to the
company, the country in which that ultimate holding company is incorporated.
10. (1) Group accounts of a holding company shall state (whether by way of
note or otherwise)-
(a) the name and place of incorporation of each subsidiary, and if any
business of the subsidiary is carried on in a country other than Australia, the
name of the country;
(b) the amount of the holding company's investment in each class of the share capital of each subsidiary;
(c) the percentage of each class of the shares in each subsidiary held by the holding company; and
(d) where the financial year of a subsidiary does not coincide with the
financial year of the holding company, the date on which the financial year of
the subsidiary ends.
(2) Where any consolidated accounts are to be laid before a holding company at its annual general meeting, transactions and balances between the corporations
covered by the consolidated accounts shall be eliminated in determining any
amounts to be stated in the consolidated accounts.
(3) Subject to sub-clause (4), where separate accounts of a subsidiary are to
be laid before the holding company at its annual general meeting as part of the
group accounts, the accounts of the subsidiary shall as far as practicable be in the same form as the accounts of the holding company.
(4) In the case of a subsidiary incorporated outside the Territory (whether or not it has established a place of business in the Territory), it is sufficient
compliance with the provisions of sub-clause (3) if the accounts of the
subsidiary-
(a) are in such form;
(b) are reported on by an auditor in such manner;
(c) contain such particulars; and
(d) include or are accompanied by such documents (if any),
as is or are required by the law of its place of incorporation concerning
accounts to be laid before the subsidiary in general meeting.
(5) Where group accounts are prepared otherwise than as one set of
consolidated accounts covering the group, the directors of the holding company
shall certify on, or in a certificate attached to, the accounts-
(a) that the preparation of one such set of consolidated accounts is
impracticable or that it is preferable, in the interest of the shareholders,
that the accounts be prepared in the form in which they are prepared (as the
case may be), for reasons to be stated in the certificate; and
(b) that, in the opinion of the directors, the accounts so prepared are not
significantly affected by transactions and balances between the corporations
covered by the accounts, except to the extent stated in any notes forming part
of the accounts.
(6) Where any accounts included in group accounts laid before a holding
company at its annual general meeting are presented in a form or grouping
different from that in which the immediately preceding group accounts (if any)
were so laid, the directors shall certify on, or in a certificate attached to,
the accounts the names of the corporations the accounts of which have been so
presented and the reasons for presenting them in that form or grouping.
(7) A certificate under sub-clause (5) or (6) shall be signed by not less than 2 directors.
11. All amounts shown in the accounts or group accounts shall be expressed in
Australian currency and, where any conversion has been made otherwise than on
the basis of the rate of exchange current at the end of the financial year of
the company or holding company, an explanation of the methods used in
calculating the conversion shall be given.
12. (1) Except in the case of the first accounts after the incorporation of
the company and in the case of the first group accounts after the company
becomes a holding company, there shall be shown-
(a) in every balance sheet and in all notes attached to that balance sheet
the corresponding amounts as at the end of the immediately preceding financial
year; and
(b) in every profit and loss account and in all notes attached to that profit and loss account the corresponding amounts for the corresponding period of the
immediately preceding financial year,
and, where the respective financial years are not equal in length, the periods
covered shall be clearly indicated by way of note or otherwise.
*(**2**)* If-
(a) the balance sheet or notes attached to that balance sheet do not include
an item corresponding to an item in the balance sheet or notes attached to that
balance sheet as at the end of the immediately preceding financial year; or
(b) the profit and loss account or notes attached to that profit and loss
account do not include an item corresponding to an item in the profit and loss
account or notes attached to that profit and loss account covering the
corresponding period of the immediately preceding financial year,
that previous item and the amount of that previous item shall be shown.
13. (1) Where the accounts or group accounts could be misleading by reason of
a failure to explain the method used in dealing with, or calculating the amount
of, any item or information included in or excluded from the accounts or group
accounts, there shall be stated (whether by way of note or otherwise) the method used to deal with, or calculate, the amount of the item or information.
(2) Any sums that consist of or are in the nature of interest, accommodation
charges, service charges, maintenance charges or insurance premiums, being
income that has not been earned at the end of the financial year, shall not be
included in any estimate of the gross amount of any of the following classes of
debts owed to the company or to the company and its subsidiaries:
(a) debts payable not later than one year after the end of the financial
year;
(b) debts payable later than one year but not later than 2 years after the
end of the financial year;
(c) debts payable later than 2 years but not later than 5 years after the end of the financial year;
(d) debts payable later than 5 years after the end of the financial year,
unless the amount of unearned income so included is shown as a deduction from
the estimate of the gross amount of the class of debts concerned.
(3) A short statement of the method by which the amount of unearned income has been calculated shall be included in the accounts or group accounts (whether by
way of note or otherwise).
----------------
COMPANIES REGULATIONS - SCHEDULE 8 SCH
SCHEDULE 8
Regulation 60 Sub-section 296 (10)
WITNESSES' FEES AND TRAVELLING EXPENSES
1. A person who is an officer by reason of his professional, scientific or
other special skill or knowledge and is called to give evidence by reason of
that skill or knowledge shall be paid a fee of not less than $45 and not more
than $250 for each day on which he so attends.
2. A person, other than a person referred to in clause 1 of this Schedule, who is called to give evidence or to produce documents shall be paid-
(a) if he is remunerated by wages, salary or fees-
(i) a fee equal to the amount of wages, salary or fees lost by reason of
his so attending; or
(ii) a fee of $50 for each day on which he so attends,
whichever is the less; or
(b) if he is not so remunerated-a fee of $30 for each day on which he so
attends.
3. A person attending an examination before an inspector to give evidence or
to produce documents shall be paid a reasonable amount-
(a) in respect of his conveyance to and from the place at which he so
attends; and
(b) if he is required to be absent overnight from his usual place of
residence-for meals and accommodation.
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COMPANIES REGULATIONS - SCHEDULE 9 SCH
SCHEDULE 9
SCHEMES OF ARRANGEMENT
Regulation
62
PART I-INTERPRETATION
In this Schedule-
"internal creditor" means a creditor who is a member of the company, a relative or spouse of the member, or a relative of the spouse of a member;
"Scheme" means the proposed compromise or arrangement;
"scheme creditors" means the creditors or class of creditors of a company, to whom the Scheme would apply;
"scheme members" means the members or class of members of a company, to whom the Scheme would apply.
PART II
PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR
ARRANGEMENT WITH CREDITORS OR CLASS OF CREDITORS
1. The statement shall set out-
(a) the expected dividend that would be available to scheme creditors if the
company were to be wound up within 6 months after the date of the hearing of the application to the Court for an order under sub-section 315 (1) of the Act;
(b) where a composition of debts is proposed-the expected dividend that would be paid to scheme creditors if the Scheme were put into effect as proposed;
(c) a list of the names of all known scheme creditors together with the debts owed to those creditors;
(d) if any scheme creditor is known to be a guaranteed creditor-the name of
that creditor and the amount of the debt owed; and
(e) if any scheme creditor is known to be an internal creditor-the name of
the creditor and the amount of the debt owed.
2. The statement shall contain a statement to the effect that an order under
sub-section 315 (1) of the Act does not constitute an endorsement of, or any
other expression of opinion on, the Scheme.
3. The statement shall contain as a schedule or have annexed to it-
(a) a report as to the affairs of the company in accordance with Form 30,
drawn to represent the financial position of the company as at a day within one
month of the date on which it is intended to apply to the Court for an order
under sub-section 315 (1) of the Act;
(b) a copy, certified by a director or by the principal executive officer or
a secretary of the company to be a true copy, of all accounts and group accounts (if any) required to be laid before the company at the annual general meeting,
together with a copy of every document required by law to be annexed to the
accounts;
(c) where the company the subject of the Scheme is a trustee, a statement as
to-
(i) how many trusts are administered by the trustee;
(ii) whether the trustee carries on any business separate from that of the trust;
(iii) how the scheme creditors may obtain a copy of the relevant trust
deed, free of charge, prior to the date of the meeting; and
(d) where the person, if any, who would be appointed to manage the Scheme
proposes to charge for his services and for the services of his staff in
accordance with a particular scale of charges, that scale of charges.
PART III
PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT
WITH MEMBERS OR A CLASS OF MEMBERS
1. The statement shall set out-
(a) except in the case where the company the subject of the Scheme is in the
course of being wound up or is under official management, in relation to each
director of the company-
(i) if the director desires to make, and considers himself justified in
making, a recommendation in relation to the Scheme-whether the director
recommends the acceptance of the Scheme or recommends against acceptance and, in either case, his reasons for so recommending;
(ii) if the director is not available to consider the Scheme-that the
director is not so available and the cause of his not being available; or
(iii) in any other case-that the director does not desire to make, or does not consider himself justified in making, a recommendation and, if the director
so requires, his reasons for not wishing to do so; or
(b) where the company the subject of the Scheme is in the course of being
wound up or is under official management, in relation to each liquidator or each official manager, as the case requires-
(i) if the liquidator or official manager, as the case may be, wishes to
make a recommendation in relation to the Scheme-whether the liquidator or
official manager, as the case may be, recommends the acceptance of the Scheme or recommends against acceptance and, in either case, his reasons for so
recommending; or
(ii) in any other case-that the liquidator or official manager, as the
case may be, does not wish to make a recommendation and his reasons for not
wishing to do so.
2. The statement shall set out-
(a) the number, description and the amount of marketable securities of the
company the subject of the Scheme held by or on behalf of each director of the
company or, in the case of a director by or on behalf of whom none are so held,
a statement to that effect;
(b) in respect of each director of the company the subject of the Scheme, by
whom or on whose behalf, shares in that company are held, whether-
(i) the director intends to vote in favour of, or against, the Scheme;
or
(ii) the director has not decided whether he will vote in favour of, or
against, the Scheme;
(c) where the other party to the proposed reconstruction or amalgamation is,
or includes, a corporation or corporations, whether any marketable securities of that corporation or of any of those corporations are held by, or on behalf of,
any director of the company the subject of the Scheme and, if so, the number,
description and amount of those marketable securities;
(d) where it is proposed that any payment or other benefit will-
(i) be made or given to any director, secretary or executive officer of
the company the subject of the Scheme as compensation for loss of, or as
consideration for or in connection with his retirement from, office as a
director, secretary or executive officer of the company the subject of the
Scheme or of a corporation that is related to the company the subject of the
Scheme; or
(ii) be made or given to any director, secretary or executive officer of
any corporation that is related to the company the subject of the Scheme as
compensation for the loss of, or as consideration for or in connection with his
retirement from, office as a director, secretary or executive officer of the
company the subject of the Scheme or of a corporation that is related to that
company,
particulars of the proposed payment or benefit;
(e) where there is any other agreement or arrangement made between any
director of the company the subject of the Scheme and any other person in
connection with or conditional upon the outcome of the Scheme-particulars of any such agreement or arrangement;
(f) if the object of the Scheme is for a corporation to acquire control of
another corporation that is a company, whether any director of that company has
any interest in any contract entered into by the corporation seeking control and particulars of the nature and the extent of each such interest, if any;
(g) if the shares of the company the subject of the Scheme are not granted
official quotation on a Stock Exchange, all the information that the company the subject of the Scheme has as to the number of any such shares that have been
sold in the 6 months immediately preceding the date on which the statement is
lodged with the Commission for registration and the amount of those shares and
the prices at which they were sold;
(h) whether, within the knowledge of the directors of the company the subject of the Scheme, or, where the company the subject of the Scheme is in liquidation or under official management, the knowledge of the liquidator or the official
manager, the financial position of the company has materially changed since the
date of the last balance sheet laid before the company in general meeting or
dispatched to shareholders in accordance with section 274 of the Act and, if so, full particulars of any such change or changes; and
(i) any other information material to the making of a decision in relation to the Scheme, being information that is within the knowledge of any director,
liquidator or official manager of a company the subject of the Scheme or of a
related company and which has not previously been disclosed to the scheme
members.
3. Where-
(a) the other party to the proposed reconstruction or amalgamation of the
company the subject of the Scheme has a prescribed shareholding in the company
the subject of the Scheme; or
(b) a director of any corporation which is the other party to the proposed
reconstruction or amalgamation is a director of a company the subject of the
Scheme,
the statement shall be accompanied by a copy of a report made by an expert (not
being a person who is associated with the corporation which is the other party
to the proposed reconstruction or amalgamation or with the company the subject
of the Scheme) stating whether or not, in his opinion, the implementation of the proposed Scheme is in the best interest of the members of the company the
subject of the Scheme and setting out his reasons for forming that opinion.
4. Where the company the subject of the Scheme obtains 2 or more reports, each of which could be used for the purposes of compliance with clause 3, the
statement shall be accompanied by a copy of each report.
5. Where-
(a) the company the subject of the Scheme obtains a report for the purposes
of compliance with clause 3; and
(b) the report contains-
(i) a forecast in respect of the profits or profitability of the company
the subject of the Scheme; or
(ii) a statement to the effect that the market value of an asset or assets of the company the subject of the Scheme or of a corporation that is related to
the company the subject of the Scheme differs from an amount at which the value
of the asset or assets is shown in the books of the company or the related
corporation,
that report shall not accompany the statement except with the consent in writing of the Commission and in accordance with such conditions (if any) as are
specified by the Commission.
6. For the purposes of clause 3-
(a) a person has a prescribed shareholding in a company if he is entitled to
not less than 30% of the voting shares in the company; and
(b) a person has a prescribed shareholding in a company being a company the
voting shares in which are divided into 2 or more classes of shares, if he is
entitled to not less than 30% of the shares in one of those classes.
7. The statement shall set out, where the consideration to be offered to
scheme members consists, in whole or in part, of marketable securities issued,
or to be issued, by a corporation, the formula to be applied to ascertain the
number of marketable securities to be issued to each scheme member, and the
basis upon which that formula was developed.
8. Where marketable securities of the same class as those referred to in
clause 7 are granted official quotation on a Stock Exchange, the statement shall state the fact, specify the Stock Exchange concerned, and set out-
(a) the latest recorded sale price before the date on which the statement is
lodged with the Commission for registration;
(b) the highest and lowest recorded sale prices during the 3 months
immediately preceding that date and the respective dates of the relevant sales;
and
(c) where the Scheme has been the subject of a public announcement in
newspapers or by any other means before the statement has been registered by the Commission, the latest recorded sale price immediately before the public
announcement.
9. (1) Where the marketable securities referred to in clause 8 are granted
official quotation on more than one Stock Exchange, it is sufficient compliance
with paragraphs 8 (a) and (c) if information with respect to the marketable
securities is given in relation to the Stock Exchange at which there has been
the greatest number of recorded dealings in the securities in the 3 months
immediately preceding the date on which the statement is lodged with the
Commission for registration.
(2) Where the securities have not been granted official quotation on a stock
exchange, the statement shall set out all the information that a director,
liquidator or official manager of a company the subject of the Scheme or of a
related company has as to the number of securities that have been sold in the 3
months immediately preceding the date on which the explanatory statement was
prepared and the price of those securities or, if that information or any part
of that information cannot be ascertained, a statement to that effect.
10. The statement shall set out particulars of the intentions of the directors of the company the subject of the Scheme regarding-
(a) the continuation of the business of the company or, where the
undertaking, or any part of the undertaking, of a company is to be transferred,
how that undertaking or part is to be conducted in the future;
(b) any major changes to be made to the business of the company, including
any redeployment of the fixed assets of the company; and
(c) the future employment of the present employees of the company.
PART IV
PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT
WITH MEMBERS OR CLASS OF MEMBERS FOR TRANSFER TO A TRUSTEE
1. The statement shall set out-
(a) in detail, the basis on which units in the unit trust are to be issued to scheme members; and
(b) where the issue of units in the unit trust is based on the asset backing
of shares held by scheme members, full valuation details of those assets.
2. A copy of the trust deed shall be annexed, or set out in a schedule, to the statement.
3. Where the effect of the proposed compromise or arrangement will be the
merger of 2 companies without substantial common membership, the explanatory
statement shall, so far as practicable, state the matters, and be accompanied by the documents and reports, referred to in Part III.
------------------------------------------------------------------------------ --
COMPANIES REGULATIONS - Note 1
1. The Companies Regulations (in force under the Companies Act 1981) as shown
in this reprint comprise Statutory Rules 1982 No. 120 amended as indicated in
the Tables below.
Table of Statutory Rules
-----------------------------------------------------------------------------
Application,
saving
Date of
notification Date of or transitional
Year and number in Gazette commencement provisions
----------------------------------------------------------------------------- 1982 No. 120(a) 16 June 1982 1 July 1982
121(a) 16 June 1982 1 July 1982 -
----------------------------------------------------------------------------- (a) The form of introductory words used to make Statutory Rules 1982 No. 121
was as follows:
"WHEREAS it is provided by sub-section 577 (2) of the Companies Act 1981
that the powers of the Governor-General to make regulations under that Act shall be exercised only in accordance with advice that is consistent with resolutions
of the Ministerial Council for Companies and Securities established by the
Agreement made on 22 December 1978 between the Commonwealth and the States as
amended by the Agreement made on 24 February 1981:
"AND WHEREAS the making of the following Regulation is in accordance with
advice that is consistent with those resolutions:
"NOW THEREFORE I, the Governor-General of the Commonwealth of Australia,
acting with the advice of the Federal Executive Council and in pursuance of
section 4 of the Acts Interpretation Act 1901, hereby make the following
Regulation under the Companies Act 1981."
The form of introductory words used to make Statutory Rules 1982 No. 120
was similar to the form set out above.
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and
substituted
----------------------------------------------------------------------------- Provision affected How affected
----------------------------------------------------------------------------- R. 57 . . . . . . . . rs. 1982 No. 121
-----------------------------------------------------------------------------
0
0
0