Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs 601QA(1)(a), 911A(2)(l) and 992B(1)(a) — Variation
Under paragraphs 601QA(1)(a), 911A(2)(l) and 992B(1)(a) of the Corporations Act 2001, the Australian Securities and Investments Commission varies Class Order [CO 02/305] by:
- in Schedule A omitting all the text and substituting:
“Any person (“Operator”) who operates a scheme of the kind specified in Schedule B (“Scheme”) other than a person who is aware that:
(a) any Product Disclosure Statement required to be given to a person under the Act in relation to the Scheme, was not given or was given but did not comply with the Act; or
(b) in the case of a Scheme that was operated before 11 March 2004 – any disclosure statement required to be given to a person under this instrument (as in force from time to time before that date) in relation to the Scheme was not given.”;
2. in Schedule B:
(a) omitting from subparagraph (e)(i) “and”; and
(b) omitting subparagraph (e)(ii) and substituting:
“(ii) one or more payments of the Investor’s reasonable proportion of the Operator’s fees and expenses with respect to the management of the Scheme where in any 3 month period the total of such payments relates to a period of no more than 3 months and where:
(A) that total is reasonably commensurate with the work done or to be done, or the expenses incurred or likely to be incurred (as the case may be), by the Operator during the period to which the payments relate; and
(B) where a FFE Fund has been established for the Investor ‑ no payment or part thereof is used for the replacement, repair or refurbishment of furniture, fittings and equipment of the Strata Unit in relation to the period to which the payment relates unless all money in the Fund has first been expended; and
(iii) where a FFE Fund has been established for the Investor – one or more payments into the Fund where:
(a) each payment is by way of a deduction from rental income of the Scheme that would otherwise be paid to the Investor in relation to a period and does not exceed 3% of the gross rent attributable to the Investor for the period; and
(b) the balance of the Fund at all times does not exceed $5,000 for each Strata Unit made available by the Investor for use as part of the Scheme;”;
3. omitting paragraph 2 of Schedule C and substituting:
“2 Where a FFE Fund has been established for an Investor, the Operator must ensure that:
(a) the money comprising the Fund is held on trust for the Investor in a trust account and subject to audit as to whether the money has been dealt with in accordance with the terms of the trust by a registered company auditor at least annually; and
(b) the balance of the Fund is promptly returned to the Investor at the termination of the Scheme or upon the Investor’s withdrawal from the Scheme, whichever occurs first;
2A Each promoter that is involved in making an offer of interests in the Scheme for issue must not engage in any misleading or deceptive conduct or conduct that is likely to mislead or deceive in connection with those offers; and”;
4. omitting Schedule D; and
5. under the heading “Interpretation”, omitting paragraph 1 and substituting:
“1 “FFE Fund” means a fund established for an Investor consisting of money paid by the Investor and any interest accrued on that money, to be used from time to time in accordance with the written agreement referred to in paragraph (g) of Schedule B for the replacement, repair or refurbishment of furniture, fittings and equipment of the Strata Unit made available by the Investor for use as part of the Scheme; and”.
Commencement
This instrument commences on gazettal.
Dated this 25th day of June 2004
Signed by Brendan Byrne
as a delegate of the Australian Securities and Investments Commission