ASIC Class Order [CO 10/333]

Administered by Department of the Treasury

Legislation au F2010L01204 Not in force Legislative Instrument

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Funded representative proceedings and funded proof of debt arrangements

This instrument has effect under s601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a) of the Corporations Act 2001.

This compilation was prepared on 11 January 2013 taking into account amendments up to [CO 13/19]. See the table at the end of this class order.

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs 601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a) — Declaration and Exemptions

Enabling provision

1. The Australian Securities and Investments Commission (ASIC) makes this instrument under paragraphs 601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a) of the Corporations Act 2001 (the Act).

Title

2. This instrument is ASIC Class Order [CO 10/333].

Commencement

3. This instrument commences on the day it is registered under the Legislative Instruments Act 2003.

Note: An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, s 4 (definition of register). The FRLI may be accessed at http://www.frli.gov.au/.

Declaration and exemptions

4. ASIC declares that Chapter 5C of the Act applies to all persons as if the definition of managed investment scheme in section 9 of the Act were modified or varied by, after paragraph (ma) inserting:

“(maa) a scheme for participating in, conducting and funding legal proceedings where the members of the scheme have or may have an entitlement to a remedy arising out of the same or similar circumstances;

(mab) a scheme for proving claims against a company under Division 6 of Part 5.6 (including funding of the preparation and lodgment of the proofs) where the members of the scheme have or may have claims against the company arising out of the same or similar circumstances;”.

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

(a) an interest in a managed investment scheme (a litigation funding scheme) that is a scheme for participating in, conducting and funding legal proceedings where the members of the scheme have or may have an entitlement to a remedy arising out of the same or similar circumstances; or

(b) an interest in a managed investment scheme (a proof of debt funding scheme) that is a scheme for proving claims against a company under Division 6 of Part 5.6 of the Act (including funding of the preparation and lodgment of the proofs) where the members of the scheme have or may have claims against the company arising out of the same or similar circumstances; or

(i) arrangement (a litigation funding arrangement) for participating in, conducting and funding legal proceedings brought by or on behalf of a person; or

(ii) arrangement (a proof of debt funding arrangement) for proving claims made by a person against a company under Division 6 of Part 5.6 of the Act (including funding of the preparation and lodgment of the proofs);

to the extent the arrangement, or an interest in the arrangement, is a financial product other than an interest in a litigation funding scheme or proof of debt funding scheme.

6. A person does not have to comply with subsections 992A(1) or (3), or subsection 992AA(1), of the Act in relation to:

(a) an interest in a litigation funding scheme; or

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

(d) a proof of debt funding arrangement or an interest in such an arrangement.

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

(a) an interest in a litigation funding scheme; or

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

(d) a proof of debt funding arrangement or an interest in such an arrangement.

Application

8. For the avoidance of doubt, the declaration in paragraph 4 does not have effect for the purposes of section 601MB of the Act in relation to a contract entered into before the commencement of this instrument by a person to subscribe for an interest in:

(a) a litigation funding scheme; or

(b) a proof of debt funding scheme.

9. Paragraphs 4, 5 and 7 do not apply in relation to a litigation funding scheme or litigation funding arrangement that is covered by an instrument made under paragraphs 601QA(1)(b), 926A(2)(a) and (c) and 1020F(1)(b) of the Act for so long as the instrument:

(a) affects the operation of, or exempts a person from, provisions of the Act in relation to the scheme or arrangement; or

(b) exempts an interest in the scheme, or the arrangement, from provisions of the Act.

10. This instrument has effect until 12 July 2013.

Notes to ASIC Class Order [CO 10/333]

Note 1

ASIC Class Order [CO 10/333] (in force under s601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the tables below.

Table of Instruments

Instrument number	Date of FRLI registration	Date of commencement	Application, saving or transitional provisions
[CO 10/333]	5/5/2010 (see F2010L01204)	5/5/2010
[CO 10/830]	6/9/2010 (see F2010L02417)	6/9/2010	-
[CO 11/128]	22/2/2011 (see F2011L00289)	22/2/2011	-
[CO 11/555]	29/6/2011 (see F2011L01303)	29/6/2011	-
[CO 11/942]	30/9/2011 (see F2011L02008)	30/9/2011	-
[CO 12/158]	27/2/2012 (see F2012L00407)	27/2/2012	-
[CO 12/1301]	28/9/2012 (see F2012L01965)	28/9/2012	-
[CO 13/19]	11/1/2013 (see F2013L00044)	11/1/2013	-

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

Provision affected	How affected
Subpara 5(c).......	ad. [CO 11/555]
Para 6...........	rs. [CO 11/555]
Para 7...........	rs. [CO 11/555]
Para 9...........	rs. [CO 11/555]
Para 10..........	am. [CO 10/830]; [CO 11/128]; [CO 11/555]; [CO 11/942]; [CO 12/158]; [CO 12/1301] and [CO 13/19]

Overview

ASIC Class Order [CO 10/333], enacted in 2010, was introduced to address the gap in regulation of funded representative proceedings and funded proof of debt arrangements under the Corporations Act 2001. This legislative instrument was prepared by the Australian Securities and Investments Commission (ASIC) and has effect under specific provisions of the Corporations Act, including sections 601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a). The primary objective of this class order is to provide exemptions and declarations that modify the application of Chapter 5C of the Act to managed investment schemes involved in funding legal proceedings and proofs of debt. This instrument ensures that certain financial services and arrangements related to litigation funding and proof of debt funding are not subject to specific regulatory requirements, provided they meet the criteria set out in the order. It is important to note that these exemptions do not apply to arrangements that are covered by other specific instruments made under the Corporations Act. The class order was registered under the Legislative Instruments Act 2003 and has been subject to amendments over time, with the most recent amendment commencing on 11 January 2013.

Scope and Application

ASIC Class Order [CO 10/333] applies to all persons who are involved in schemes or arrangements for participating in, conducting, and funding legal proceedings or proving claims against a company, specifically where the members of the scheme have or may have an entitlement to a remedy or claims arising from the same or similar circumstances. This includes both litigation funding schemes and proof of debt funding schemes. The Class Order modifies the definition of a managed investment scheme under the Corporations Act 2001 to encompass these funding schemes. However, it exempts certain interests and arrangements related to these funding schemes from specific compliance requirements under the Act, such as those concerning financial services, disclosure, and continuous disclosure. Notably, these exemptions do not apply to arrangements covered by other instruments made under the Act. The Class Order is effective until 12 July 2013, with amendments tracked through various legislative instruments registered on the Federal Register of Legislative Instruments.

Key Provisions

The ASIC Class Order [CO 10/333] primarily modifies the definition of "managed investment scheme" under the Corporations Act 2001 (the Act) by adding two new types of schemes: litigation funding schemes and proof of debt funding schemes. This addition is made through the declaration and exemptions outlined in paragraph 4 of the Class Order. Specifically, it modifies the definition of managed investment scheme to include schemes where members have or may have an entitlement to a remedy arising from the same or similar circumstances (paragraph 4(maa)) and schemes for proving claims against a company where the members have or may have claims arising from the same or similar circumstances (paragraph 4(mab)). The Class Order also exempts certain activities from specific provisions of the Act. For instance, subsections 911A(1) and 911B(1) do not apply to financial services provided in relation to interests in litigation funding schemes or proof of debt funding schemes, as long as these interests are financial products (paragraph 5). Furthermore, subsections 992A(1) and (3), and 992AA(1) of the Act do not apply to interests in litigation funding schemes or proof of debt funding schemes, or to litigation funding arrangements or proof of debt funding arrangements (paragraph 6). Additionally, Part 7.9 of the Act does not apply to interests in these schemes or arrangements (paragraph 7). There are specific obligations and requirements for the parties involved. The Class Order mandates that Chapter 5C of the Act applies to all persons, with the modified definition of managed investment schemes (paragraph 4). It exempts certain financial services from compliance with specific provisions of the Act, provided they pertain to interests in litigation funding schemes or proof of debt funding schemes (paragraph 5). Furthermore, it exempts interests in these schemes or arrangements from compliance with other provisions (paragraphs 6 and 7). Regarding penalties and consequences, the Class Order does not explicitly state penalties for breaches. However, non-compliance with the Corporations Act 2001 can result in civil or criminal penalties. For instance, individuals or entities that provide financial services in relation to these schemes without the required exemptions may face civil penalties, including fines. Moreover, those who engage in activities exempted by the Class Order but fail to meet the conditions of the exemptions might be liable to comply with the provisions they were initially exempt from, potentially resulting in fines or other legal consequences. The severity of penalties can vary depending on the nature and extent of the breach.

Area of Law: Corporate Law & Governance
Instrument: Legislative Instrument
Concepts: Definitions & Interpretation; Exemptions & Exclusions; Delegated & Subordinate Legislation

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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