Companies Regulations - Legislation

EXPLANATORY STATEMENT

STATUTORY RULES 1982 NO. 120

Issued by the authority of the Attorney-General

COMPANIES REGULATIONS

1. On 22 December 1978 the Commonwealth and the States executed a Formal Agreement that provides the framework for a co-operative Commonwealth-State scheme for a uniform system of law and administration in relation to company law and the regulation of the securities industry in the six States and the Australian Capital Territory.

2. Clause 32 of the Formal Agreement provides that the National Companies and Securities Commission (NCSC) has responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry, subject to directions from the Ministerial Council for Companies and Securities. The Ministerial Council consists of the Commonwealth and State Ministers responsible for administering the law relating to companies and the regulation of the securities industry, or their delegates, or Ministers acting in their office. (Formal Agreement, clauses 19 and 20).

3. The purpose of the Companies Act 1981 is to provide a law in relation to the formation and regulation of companies and other bodies in the A.C.T..

4. Under paragraph 8(1)(b) of the Formal Agreement, the Commonwealth is required to submit to the Federal Executive Council for making by the Governor-General regulations under the initial scheme legislation which have been unanimously approved by the Ministerial Council.

5. The Ministerial Council has passed the following resolution:

“The Ministerial Council resolved unanimously pursuant to paragraph 8(1)(b) of the Formal Agreement that the draft Companies Regulations being as set out in the print dated 10 May, 1982 be approved.”

6. The purposes of the proposed regulations are set out below.

Details of these regulations are shown at paragraphs 9 to 583.

• Regulations 1, 2, 14 to 16 and 53

Provide interpretation and definition provisions.

• Regulations 3 to 6, 28, 54, 56 and 69 and Schedules 1 and 2

Prescribe the forms to be used under the Act and the method of signing, preparing and completing such forms.

• Regulations 7 to 13, 49, 55, 58, 63 to 66, 72 to 74

Make provision for the form in which documents must be lodged with the NCSC and the manner of verification of such documents.

(v) the matters and reports to be included in prospectuses and in explanatory statements relating to prescribed interests;

(vi) the content of accounts and group accounts;

(vii) the information required to be given to creditors and members in relation to a proposed compromise or arrangement;

(viii) the requirements for the convening and conduct of certain meetings held pursuant to the provisions of the Companies Act 1981;

(ix) the procedures to be followed by a liquidator in settling the list of contributories, paying dividends to creditors and returning capital to contributories;

(x) expenses for witnesses.

7. The accompanying regulations are in accordance with the draft regulations approved by the Ministerial Council.

8. Annexure 1 contains a note of the full meaning of the terms abbreviated in the following explanation of the regulations and forms.

PART I - PRELIMINARY

9. Part I of the CR (regs 1 to 18) deals with various preliminary matters.

Reg. 1 - Citation

10. The Regulations will be cited as the Companies Regulations.

11. This regulation is based on VIC CR sub-reg. 1(1).

Reg. 2 - Interpretation

12. The following definitions are provided for purposes of the CR:

- “agent” - defined to mean a person named in a memorandum of appointment or power of attorney lodged under CA para. 512(2)(e) or CA sub-sec. 514(5).

- “local authority” - defined to mean the Corporate Affairs Commission for the Territory.

- “registered number” - defined to mean:

for a corporation, the number allocated to it on incorporation or registration;

for an auditor or liquidator, the number allocated to that person on registration.

- “the Act” - defined to mean the Companies Act 1981

(CR sub-reg. 2(1)).

13. The definition of “agent” is based on VIC CR reg. 4. The definition of “local authority” is the same as the definition of this term given in CA s-sec 22(4).

14. The definition of “registered number” is new and has been included to make it clear that the number which is to be noted on a form which requires the insertion of a “registered number” is to be that of the company, where the form is to be completed by or in relation to a company, or is to be that of an auditor or a liquidator, where the form is to be completed by or in relation to an auditor or a liquidator.

15. The definition of “the Act” is also new and has been included to avoid the need to make constant references to “the Companies Act 1981.” The purpose of this definition provision is to substantially reduce the number of “translator” regulations which would otherwise have to be made by the States in order to adopt the CR.

Reg. 3 - Forms

16. The forms listed in CR Schedule 1 are prescribed for the purposes of the provisions specified in column 1 or 2 of that Schedule. CR reg. 3 is based on VIC CR sub-reg. 5(1).

Reg. 4 - Compliance with forms

17. Strict compliance with the substance, or the provision of information required by the forms set out in Schedule 2 is required. However, it is only necessary to substantially comply with the style of the forms set out in Schedule 2. CR reg. 4 is based on VIC CR sub-reg. 5(2).

Reg. 5 - Directions and instructions to be followed

18. It will be necessary to comply with any directions contained in the forms. CR reg. 5 is based on VIC CR reg. 7.

Reg. 6 - Particulars prescribed by forms

19. Where a form is required to be completed by the furnishing of a document, or the furnishing of information or any other matter, then that document, information or other matter is to be regarded as the document, information or other matter that is required to be furnished under the provision of the Act or Regulations for which purpose the form has been prescribed. CR reg. 6 is based on VIC CR reg. 6.

Reg. 7 - General requirements for documents

20. Documents required to be lodged with the NCSC have to conform with the requirements as to form set out in CR sub-reg. 7(1). CR sub-reg. 7(1) is based on VIC CR sub-reg. 8(1) except that:

(a) VIC CR para. 8(1)(b) has been extended in CR para 7(1)(b) to cover more modern means of producing documents, provided that the production is in a permanent manner. (Suitably produced handwritten documents will still be allowed).

(b) CR para. 7(1)(e) requires documents to be fastened securely together “in the top left-hand corner” - cf. VIC CR sub-para. 8(1)(e)(i) which requires that documents “shall be bound together securely”. This change has been made because the present method of binding makes it difficult for registering authorities to separate documents for microfilming.

21. Where the address of a corporation is required for the purposes of the CR full particulars of the corporation’s physical location must be given (CR sub-reg. 7(2)).

22. CR sub-reg. 7(2) is new and has been included to overcome problems such as that which arises when a company located in the country simply gives its address as “Town X”.

23. CR sub-reg. 7(3), which requires a person signing a form set out in Schedule 2 to legibly write his name on the form, is also new. It has been included in an attempt to overcome the problem currently faced by CAOs when they are presented with documents which have indecipherable signatures.

Reg. 8 - Annexures accompanying forms

24. This new regulation is designed to make it clear that:

(a) forms may be completed by way of annexures; and

(b) if a form is completed by way of annexure, that annexure must identify the form to which the annexure relates and must be signed by each person who signs the form.

Reg. 9 - Time for lodging documents

25. Documents are required to be lodged within one month of the relevant event taking place unless another period is specified in the CA or CR. The NCSC may, however, allow extensions of this period in the case of foreign companies. CR reg. 9 is based on VIC CR reg. 18.

Reg. 10 - Affidavits and statements in writing

26. If an affidavit or statement in writing is sworn or made in the Territory then CR reg. 10 requires it to be sworn or made on behalf of a corporation by a director, secretary or the principal executive officer of the corporation. If sworn or made outside the Territory then it must be sworn or made in accordance with the law of the relevant place.

27. CR reg. 10 is based on VIC CR reg. 19 except that:

(a) As in the CA, references are made to “statements in writing” rather than “statutory declarations”. The penalty for lodging false or misleading statements is set out at s-sec. 563(2) of the CA.

(b) There is now provision for the principal executive officer of a corporation to be able to swear affidavits or make statements in writing.

(c) An affidavit sworn or made in accordance with the relevant Rules of Court will now be taken to have been sworn or made as required.

Reg. 11 - Signature of documents lodged with Commission

28. A document lodged with the NCSC must be signed by a director, secretary or principal executive officer of the relevant corporation (CR para 11(1)(a)). In addition, in the case of a foreign company, documents may be signed by an agent or, if the agent is a company, by a director, secretary or principal executive officer of that company (CR para 11(1)(b)).

29. CR reg. 11 is based on VIC CR reg. 20 except that the required signatories to documents lodged with the NCSC have been changed:

(a) a principal executive officer rather than a manager will be able to sign documents lodged on behalf of a corporation (CR para. 11(1)(a)); and

(b) there is now provision for the director secretary or principal executive officer of a corporate agent of a foreign company to sign documents lodged with the NCSC (CR para. 11(1)(b)).

30. In addition there is a new provision that the requirements of CR reg. 11 are subject to any method of signature required by the Rules of the Supreme Court of the Australian Capital Territory (CR sub-reg 11(2)).

Reg. 12 - Verification or certification of a document or a copy of a document

31. A document which is required by the CA or the CR to be verified or certified, must be verified or certified in the manner set out in CR reg. 12 unless otherwise specified.

32. This is a new provision which has been included to obviate the necessity to retain the various provisions contained in the VIC CR dealing with verification or certification of documents lodged pursuant to stated provisions in the VIC CA (see VIC CR reg.9).

Reg. 13 - Copies of orders to be lodged with Commission

33. A person who obtains a Court order under CA s-sec. 118(2), s.133, s-secs. 175(5) or 205(3), or ss. 212, 385, 470 or 539 must lodge an office copy of the order with the NCSC.

34. CR reg. 13 is a new regulation.

Reg. 14 - Definition of “authorized trustee corporation”

35. The authorized trustee corporations which are prescribed for the purposes of CA s-sec. 5(1) are set out in CR reg. 14.

36. CR reg. 14 is a new regulation.

Reg. 15 - Declared stock exchanges for the purposes of the Act and of Schedule 9

37. The stock exchanges which are prescribed for the purposes of CA s-sec. 131(5B) and paras. 100(4)(a), 100(4)(b), 134(2)(a), 552(4)(a) and 552(6)(h) and Schedule 9 of the Regulations are set out in CR reg. 15. CR reg. 15 is based on VIC CR reg. 22.

Reg. 16 - Prescribed stock exchanges for the purpose of sub-clause 7(5) of Schedule 7

38. The prescribed stock exchanges for the purposes of s-c1. 7(5) of Schedule 7 to the CR are set out in CR reg. 16. CR reg.16 is based on VIC CR reg. 22.

Reg. 17 - Prescribed offices under sub-paragraph 8(8)(a)(ii) of the Act

39. The prescribed offices for the purposes of CA sub-para. 8(8)(a)(ii) are set out in CR reg. 17.

40. CR reg. 17 is based on VIC CR reg. 23.

Reg. 18 - Prescribed amounts

41. The amounts prescribed for the purposes of various provisions in the CA are set out in Schedule 3 to the CR alongside a reference to the relevant CA provision.

42. CR reg. 18 is new. At present such amounts are specified in the relevant provisions of the ICAC CA itself.

PART II - ADMINISTRATION

43. Part II of the CR (regs 19 to 27) contains regulations dealing with the following administrative matters:

- Evidence of authority of persons exercising powers pursuant to the powers of inspection provisions in the CA (CA Division 1 of Part II) (CR reg 19).

- Registration of auditors and liquidators (CR regs 20 to 27).

Reg. 19 - Evidence of authority under sub-section 12(3) of the Act

44. Where a person produces a document stating that that person may require the production of books in accordance with CA para. 12(3)(a), (b) or (c), then that document is to be regarded as evidence of the person’s authority.

45. CR reg. 19 is based on SIR reg. 7 except that, under the first mentioned regulation, the document in question is to be evidence of any limitation on the holder’s authority as well as of being evidence of the actual authority itself.

Reg. 20 - Prescribed accounting bodies

46. The prescribed bodies for the purposes of CA sub-paras 18(2)(a)(i) and 20(2)(a)(i) are those set out in CR reg. 20.

47. CR reg. 20 is new. All prescribed bodies are members of both the Accounting Standards Committee and the International Federation of Accountants and are taken from reg. 73 of the SA CR (cf. C(AB)R of QLD (reg. 7), WA (reg. 3) and TAS (sub-reg. 6(1))).

Reg. 21 - Prescribed universities

48. The universities prescribed for the purposes of CA sub-paras 18(2)(a)(ii) and 20(2)(a)(ii) are set out in CR reg. 21.

49. CR reg. 21 is new. The provision in the ICAC CA which is the equivalent of CA sub-paras 18(2)(a)(ii) and 20(2)(a)(ii) does not require the relevant universities to be prescribed - a degree or diploma from any University in the Comonwealth is sufficient for the purposes of ICAC CA para. 9(1) (d). The universities now prescribed are those which offer courses in accountancy which appear to meet the requirements of CA sub-paras 18(2)(a)(ii) and 20(2)(a)(ii).

Reg. 22 - Prescribed institutions

50. The institutions prescribed for the purposes of CA sub-paras 18(2)(a)(ii) and 20(2)(a)(ii) are set out in CR reg. 22.

51. The provision in the ICAC CA which is the equivalent of CA sub-paras 18(2)(a)(ii) and 20(2)(a)(ii) is ICAC CA para. 9(1) (d). The Companies (Auditors’ Board) Regulations of the States and Territories are not, however, uniform in prescribing

institutions for the purposes of this provision. Although C(AB) R of QLD (reg. 8), WA (reg. 4) and TAS (sub-reg. 6(2)) prescribe a similar group of what are now Colleges of Advanced Education and Instititutes of Technology, they also include a large group of Technical and Further Education (TAFE) Colleges and Secondary Schools. It is not considered that the latter two groups are institutions which provide suitable qualifications as the basis for registration as an auditor or liquidator under the CA.

52. The present C(AB)R also omit a significant group of Colleges of Advanced Education which provide courses in accountancy and commercial law of degree status or similar.

53. The basis on which it is proposed to prescribe the institutions listed in CR reg. 22 is similar to the considerations applying to the universities. They are also institutions for which tertiary courses are approved by the Institute of Chartered Accountants in Australia, and the Australian Society of Accountants.

54. The ACT, NT, VIC and NSW C(AB)Rs do not contain a provision equivalent to CR reg. 22.

Reg. 23 - Practical experience in auditing

55. A person seeking registration as an auditor must, amongst other things, comply with the requirements as to practical experience set out in CR reg. 23.

56. The provision that details of the required practical experience for auditors be prescribed is new (CA para. 18(2)(b)). The equivalent provision in the ICAC CAs (ICAC CAs s-sec. 9(1)) simply states that the relevant Companies Auditors Board has to be satisfied that the applicant for registration has “sufficient practical experience in accountancy”.

57. CR reg. 23 is accordingly new.

Reg. 24 - Application of security under sub-section 22(2) of the Act

58. A local authority will be able to apply a security lodged by a liquidator for the purpose of compensating persons who have, as a result of the liquidator failing in his duties, suffered pecuniary loss as defined in CR sub-reg. 24(4) (CR sub-reg. 24(D).

59. A person seeking to take advantage of the provisions of CR sub-reg. 24(1) must lodge his claim in accordance with CR sub-reg. 24(2).

60. The local authority has an obligation to hear the liquidator and his surety before paying out any claim (CR sub-reg. 24(3)).

61. Pro rata payments may be made by the local authority where the amount of the security is not sufficient to satisfy all claims (CR sub-reg. 24(5)).

62. CR reg. 24 is based on SIR sub-regs 18(2), (3), (4) and (5).

Reg. 25 - Discharge of security under sub-section 22(3) of the Act

63. Where a liquidator or a liquidator of a specified corporation:

- ceases to act as such; or

- ceases to carry out the duties in relation to which a security has been lodged,

then the local authority may, on the application of the liquidator or a surety, either wholly or in part, discharge the security, return money or release sureties. CR sub-reg. 25(1) is based on SIR sub-reg. 19(1).

64. In addition, where a surety believes that liability in relation to a claim may be imposed on him, he can apply to the local authority for directions as to the manner in which the security is to be dealt with. CR sub-regs. 25(4) and (5) are based on s. 6 of the WA Securities Industry (Release of Sureties) Act 1977.

65. These powers of the local authority cannot be exercised until after a notice (in accordance with CR form 8) has been published asking for particulars of any claims in respect of the security. CR sub-regs 25(2) and (3) are based on SIR sub-regs 19(2) and (3.)

Reg. 26 - Effect of discharge of security

66. Once a security is discharged (either wholly or in part) by the local authority then the surety will be free from any future claims in respect of the proportion of the bond which has been discharged.

67. CR reg. 26 is based on s.7 of the WA Securities Industry (Release of Sureties) Act 1977.

Reg. 27 - Prescribed period for the purposes of sub-sections 27(26) and (27) of the Act

68. A person who is aggrieved by a decision of a Companies Auditors and Liquidators Disciplinary Board may appeal to the Court within 28 days. The NCSC will also have this right of appeal. CR reg. 27 is based on ICAC CAs s-sec. 9(16).

PART III - CONSTITUTION OF COMPANIES

Reg. 28 - Form of notice of resolution

69. A form of notice of a resolution lodged pursuant to the provisions of the CA specified in CR reg. 28 will have to be in accordance with CR form 17.

70. CR form 17 is based on VIC CR form 7.

PART IV - PROSPECTUSES AND SECURITIES

71. Part IV of the CR (regs 29-53) deals with prospectuses and securities:

Division 1 - Prospectuses;

Division 2 - Shares and Debentures;

Division 3 - Prescribed Interests;

Division 4 - Securities.

Division 1 - Prospectuses

72. The regulations in CR Division 1 of Part IV and the provisions of CR Schedule 4 reflect the requirements set out in CA paras 98(1)(e), (ea) and (eb) i.e. that a prospectus must contain:

(a) a report by a registered company auditor (to be called an “Investigating Accountant’s Report”) which sets out the matters prescribed by regulation as well as those matters directed to be included by the NCSC (CA para. 98 (1)(e));

(b) other prescribed matters and prescribed reports (CA para. 98(1)(ea)); and

73. The requirement that the matters and reports to be contained in a prospectus be prescribed by regulation is new. The present situation is that these matters are set out in the Fifth Schedule to the ICAC CA (see ICAC CA para 39(1)(d)). The decision was made that these provisions should be set out in regulations on the basis that this course of action would facilitate amendments to the provisions. Some of the provisions of the Fifth Schedule to the ICAC CA have, however, been included in the CA:

ICAC CA		CA
Fifth Schedule
para.	4	para.	98(1)(d)
	15		98(1)(k)
	17		98(1)(m)
	31		98(1)(e)
	32	s-sec.	97(4)
	33		97(5)

Reg 29 - Interpretation

74. For the purposes of CR Division 1 of, Part IV, and CR Schedule 4 an “investigating accountant’s report” means a report prepared by a registered company auditor in accordance with CA para. 98(1)(e).

75. This regulation is new and reflects the wording of CA para. 98(1)(e) as amended by para. 33(a) of the C & SL (MA) Act 1981.

76. The registered auditor’s report has been termed an “investigating accountant’s report” for two reasons:

(a) it was thought desirable that the title to the report should clearly reflect the function of the person preparing it, viz to make an independent enquiry into the affairs of the company issuing the prospectus; and

(b) it was thought that the new title would make it clear that the report required for the purpose of these regulations is to be separate from, and in addition to, the auditor’s report required by CA s.285.

Reg. 30 - Valuation of tangible property of borrowing corporation and guarantor corporations

77. For the purposes of CA sub-para. 97(5)(b)(ii), in calculating the aggregate values of tangible property of the borrowing corporation and its guarantor corporations, an investigating accountant must use the values disclosed in his report prepared pursuant to CA para. 98(1)(e), and must take into account any material amounts which are not likely to be realisable for repayment of moneys secured by the charge.

78. CR reg. 30 is new. It is, however, based on existing ICAC administrative requirements. It has been included with the objective of making it clear:

(a) that the assessment of the value of assets belonging to a borrowing corporation and its guarantors must be an objective one made by the investigating accountant at a particular point in time; and

(b) that allowance must be made for unrealisable amounts.

Reg. 31 - Investigating accountant’s report

79. When required to deal in his report with the profit or loss of a corporation, the investigating accountant is required to do so in respect of the following periods:

(a) each of the 5 financial years immediately preceding the issue of the prospectus; and

(b) where accounts have been made up for a part of the financial year in which the prospectus is issued, for that period.

(CR para. 31(1)(a)).

80. When required to deal in his report with the assets and liabilities of a corporation, the investigating accountant is required to do so as at the end of the last financial year, or part of the financial year referred to in CR para 31(1)(a), whichever is the later (CR para. 31(1)(b)).

81. CR sub-reg. 31(1) is based generally on sub-para. 20(2) of Schedule 5 to the ICAC CA. The following substantive changes should, however, be noted:

(a) In the case of a single corporation, reference is now made to that corporation’s “profit or loss” rather than to its “profit or losses”. This change has been made on the basis that although a single corporation may

incur both profits and losses over the 5 year period, it will only be able to incur a profit or a loss in respect of each individual year in that period.

(b) There is now a requirement that the investigating accountant’s report deal with any accounts of the corporation which have been made up between the end of the most recent financial year and the issue of the prospectus.

(c) There are now separate regulations stating the manner in which the affairs of the corporation are to be dealt with (see CR regs. 33 to 38).

82. Similarly, when required to deal in his report with the combined profits and losses and combined assets and combined liabilities of a corporation and its subsidiaries (or guarantor subsidiaries) the investigating accountant must do so in respect of those periods specified in CR sub-reg. 31(1) (CR sub-reg. 31(2)).

83. CR sub-reg. 31(2) is based generally on sub-para. 20(2) of the Fifth Schedule to the ICAC CAs except that:

(1) For a group of corporations, reference is now made to the “combined profits and losses” of the group rather than to its “combined profits or losses”. This new wording will allow for the accounting practice of preparing group accounts on the basis that, in any one

year, the profits of all companies within the group are combined with the losses of the remaining companies in the group to arrive at a net profit or loss figure for the group.

(2) For a group of corporations, reference is now made to the “combined assets and combined liabilities” of the group rather than to the “combined assets and liabilities”. This change has been made to make it clear that the liabilities of the group may not be offset against its assets.

84. The financial year or part of the financial year referred to in CR sub-regs 31(1) and (2) must end no more than six months or, with the consent of the NCSC, no more than 12 months, before the date of the prospectus (CR sub-reg. 31(3)).

85. CR sub-reg. 31(3) is based on sub-para. 20(2) of Schedule 5 to the ICAC CA except that the latter provision only requires that the accounts of a corporation be made up to a date within 9 months before the issue of the prospectus. This change has been made for the following reasons:

(a) the new requirement will ensure that the information set out in prospectuses is as up to date as possible;

(b) most companies already set out accounts in their prospectuses which are made up to a date within 6 months prior to the issue of the prospectus; and

86. The investigating accountant is also required to report on the rates of dividends paid by the corporation, the dividends that have been paid, and the occasions on which dividends have not been paid (CR sub-reg. 31(4)).

87. CR sub-reg. 31(4) is based on s-sub para. 20(1)(b) of the Fifth Schedule to the ICAC CAs except that there is now a requirement that the investigating accountant’s report deal with any interim dividends paid by the relevant corporation between the end of the most recent financial year and the issue of the prospectus. The investigating accountant’s report is also required to be presented in tabular form in such a manner as to facilitate comparison from year to year of equivalent amounts (CR sub-reg. 31(5)).

88. If accounts have not been made up for any part of the period of 5 years ending 3 months before the issue of the prospectus, the investigating accountant must include in his report a statement to that effect (CR sub-reg. 31(6)).

89. CR sub-reg. 31(6) is based on the concluding words of sub-para. 20(1) of the Fifth Schedule to the ICAC CA.

Reg. 32 - Combined profits and losses

90. An investigating accountant must deal with the combined profits and losses and combined assets and combined liabilities of a corporation and its subsidiaries (or guarantor subsidiaries) in the manner specified in CR sub-reg. 32(1) (CR sub-reg. 32(1)).

91. CR sub-reg. 32(1) is based generally on sub-para. 20(3) of the Fifth Schedule to the ICAC CA except that the investigating accountant will now have the option of presenting the accounts in additional combinations of consolidated and separate accounts.

92. The statement prepared by the investigating accountant pursuant to CR sub-reg. 32(1) must give a true and fair view of the relevant accounts and must also make allowance for minority interests (CR sub-reg. 32(2)).

93. CR sub-reg. 32(2) is based on the concluding words of s-sub para. 20(3)(b) of the Fifth Schedule to the ICAC CA except for the new requirement that the statements referred to in CR sub-reg. 32(1) reflect a true and fair view of the relevant accounts. This requirement is based on the provisions of CA sub-para. 267(1)(b)(i).

94. In determining amounts to be included in a statement of consolidated profit and loss, and consolidated assets and consolidated liabilities, transactions and balances between the corporations covered by the statement must be eliminated (CR sub-reg. 32(3)).

95. CR sub-reg. 32(3) is based on para. 10(2) of CR Schedule 7 which in turn is based on para. 9(2) of the Ninth Schedule to the ICAC CA.

96. Where the investigating accountant reports on the accounts of a corporation and its subsidiaries (or guarantor subsidiaries) in a manner other than in accordance with CR sub-reg. 32(1), he must certify in his report as to the reasons for so doing (CR sub-reg. 32(4)).

97. CR sub-reg. 32(4) is based on para. 10(5) of CR Schedule 7 which in turn is based on para. 9(c) of the ICAC CA Ninth Schedule.

Regs 33 to 38

98. These regulations are based generally on sub-paras 20(2) and (3) of the Fifth Schedule to the ICAC CAs. For the purposes of the CR, the last mentioned provisions have, however, been set out in a different manner with a view to assisting investigating accountants in determining which provisions apply to them.

Reg. 33 - Corporation with no subsidiaries

99. Where a corporation has no subsidiaries, CR reg. 33 sets out the manner in which the investigating accountant is required to deal in his report with the profit or loss and the assets and liabilities of such a corporation.

Reg. 34 - Corporation with no subsidiaries and holding company as guarantor

100. Where a corporation has no subsidiaries and its holding company is its sole guarantor, CR reg. 34 sets out the manner in which the investigating accountant is required to deal in his report with the profit or loss, and the assets and liabilities of the corporation and the guarantor corporation.

Reg. 35 - Corporation with subsidiaries and no guarantor

101. Where the corporation has subsidiaries and no guarantor, CR reg. 35 sets out the manner in which the investigating accountant is required to deal in his report with the profit or loss, and the assets and liabilities of the corporation, together with the profits and losses, and assets and liabilities of the subsidiaries.

Reg. 36 - Corporation with guarantors all of which are subsidiaries

102. Where a corporation has guarantors all of which are subsidiaries, CR reg. 36 sets out the manner in which the investigating accountant is required to deal in his report with:

(a) the profit or loss, and the assets and liabilities of the corporation;

(b) the profits and losses, and the assets and liabilities of the subsidiary guarantor corporations; and

Reg. 37 - Corporations with subsidiaries and a holding company which is the guarantor

103. Where a corporation has subsidiaries and a holding company which is the only guarantor, CR reg. 37 sets out the manner in which the investigating accountant is required to deal in his report with:

(a) the profit or loss, and the assets and liabilities of the corporation;

(b) the profit or loss, and the assets and liabilities of the holding company; and

Reg. 38 - Corporations whose guarantors comprise their holding company and subsidiaries

104. Where the corporation has subsidiaries and a holding company, and its guarantors comprise the holding company and the subsidiaries, CR reg. 38 sets out the manner in which the investigating accountant is required to deal in his report with:

(a) the profit or loss, and assets and liabilities of the corporation;

(b) the profit or loss, and assets and liabilities of the holding company;

(d) the profits and losses, and assets and liabilities of the other subsidiaries.

Reg. 39 - Estimate of amounts payable to or by a borrowing corporation

105. Where the prospectus relates to shares in, or debentures of, a borrowing corporation, the investigating accountant must estimate the amounts payable by, or payable to, the corporation. Such estimates must be stated separately according to the time when such amounts are payable (CR sub-reg. 39(1)).

106. CR sub-reg. 39(1) is based on sub-para. 20(4) of the Fifth Schedule to the ICAC CA except that:

(a) Estimates of the amounts payable by and debts payable to the corporation and its subsidiaries within the next 12 months are now required. The rationale for this change is that, given the trend towards shorter periods

of borrowings and lendings by finance companies, it would be very difficult to assess a company’s short term liquidity position without this information.

(b) The stated information must now be given in respect of the subsidiaries of the borrowing corporation as well as in respect of the borrowing corporation itself.

107. For the purposes of CR sub-reg. 39(1) the amount will be “payable” at the time when such amount becomes contractually due unless there is no expectation that the amounts will be received by the contractually due date (CR sub-regs 39(2) and (3)).

108. CR sub-regs 39(2) and (3) are new and have been included to make it clear that both debts payable by the company and amounts receivable by the company must be aged on the same contractual basis. It is envisaged that this change will facilitate accurate comparisons of amounts payable and amounts receivable.

Reg. 40 - Treatment of interest, accommodation charges, service charges &c.

109. The investigating accountant is not to include in his CR reg. 39 estimates, any amount of unearned income which consists of, or is in the nature of, interest, accommodation charges, service charges etc. Such amounts may only be included in the estimates as a deduction from the estimate of the gross amount of the class of debts concerned.

110. CR reg. 40, although new to the prospectus provisions, is based on sub-para. 12(2) of the Ninth Schedule to the ICAC CA. It is now, however, clear that any unearned income must be separately deducted from the relevant category of debts payable to the company, and not from the gross amount of debts owing to the company. It is intended that this change will ensure that an accurate comparison can be made between the liabilities and receivables of a company which are disclosed under CR reg. 39.

Reg. 41 - Calculation of unearned income

111. The investigating accountant must include in his report a short account of the methods by which the amount of unearned income has been calculated.

112. CR reg. 41, although new to the prospectus provisions, is based on sub-para. 12(3) of the Ninth Schedule to the ICAC CA.

Reg. 42 - Statement of basis or bases of accounting, &c.

113. The investigating accountant must set out in his report certain information relating to:

(a) the basis of accounting used in the preparation of the report;

(b) assumption of support from another corporation or an unrelated entity; and

114. CR reg. 42, which is new to the prospectus provisions, is based on existing ICAC administrative procedures.

Reg. 43 - Matters and reports for the purposes of paragraph 98(1)(ea) of the Act

115. The prescribed matters and prescribed reports for the purposes of CA para. 98(1)(ea) are those set out in CR Schedule 4 (“Prospectus”).

Reg. 44 - Agent’s authority to be lodged

116. A copy of a prospectus lodged with the NCSC pursuant to CA para. 103(2)(b), which is signed by an agent of a director or proposed director, must have annexed to it the authority of the agent, or a verified copy of such authority. CR reg. 44 is based on VIC CR sub-reg. 11(1).

Reg. 45 - Verification of a contract not reduced to writing

117. For the purposes of CA para. 103(2)(d), a statement in writing verifying a contract not reduced to writing, is to be made in accordance with CR reg. 45. CR reg. 45 is based on VIC CR sub-reg. 9(3).

Division 2 - Shares and Debentures

Reg. 46 - Notice given to company by substantial shareholder

Reg. 47 - Notice of change in relevant interest or relevant interests of substantial shareholder

Reg. 48 - Notice given to company by former substantial shareholder

118. A person who becomes a substantial shareholder or changes his interest as a substantial shareholder and a person who ceases to be a substantial shareholder must supply the following documents to the company under CA paras 137(1)(b), 138(1)(b), and 139(1)(b):

(a) a verified copy of the contract etc whereby he or his associate acquired, changed or ceased to hold a relevant interest in the voting shares of the company if the actual contract etc is not available;

(b) where the relevant interest was acquired, changed, or ceased to be held through some other circumstance, then if the contract, scheme or arrangement is not in writing, or where the contract is not readily available, a verified memorandum giving full particulars of that circumstance, contract, scheme or arrangement.

119. CR regs 46, 47 and 48 are new and are designed to ensure that companies have access to all pertinent documents to an acquisition of, or a change in, a relevant interest of a substantial shareholder (note “relevant interest” is defined in CA s. 8 and a “substantial shareholding” is defined in CA s. 136).

Reg. 49 - Certified copies of profit and loss account and balance sheet

120. Certified copies of a profit and loss account and balance sheet lodged with the NCSC under CA s-sec. 158(17) are to be certified as true copies by the Department of Trade or some other appropriate Government Department in the U.K., or by the Securities and Exchange Commission of the U.S.A.

121. CR reg. 49 is new.

Division 3 - Prescribed Interests

122. Division 3 (regs 50 to 52) sets out the regulations which are required to be prescribed for the purposes of CA Part IV, Division 6 (“Prescribed Interests”). The provisions of this last mentioned Division are designed to protect the public in relation to forms of investment other than company securities.

Reg. 50 - Matters and things to be included in a deed

123. Schedule 5 (“Matters and things to be included in a deed pursuant to paragraph 166(2)(b) of the Act”) specifies the matters required to be included in a deed pursuant to CA para. 166(2)(b). (See para 575 of this paper for an explanation of this Schedule).

Reg. 51 - Prescribed matters for the purposes of sub-section 170(4) of the Act

124. Schedule 6 (“Statement required pursuant to section 170 of the Act”) sets out the prescribed matters for the purposes of CA s-sec. 170(4). (See paras 576 to 578 of this paper for an explanation of this Schedule).

Reg 52 - Return to be lodged under sub-section 173(1) of the Act

125. A return required to be lodged under CA s-sec. 173(1) (see CR form 46) must be accompanied by a copy of the statement of

accounts and of the report of the auditor on those accounts prepared in compliance with covenants which are required to be included in the deed under CA para. 168(1)(c).

126. CR reg. 52 is new and has been included in the interests of requiring disclosure of all relevant information. It is not thought that the new requirement should place too great a burden on management companies since the accounts and report in question should already have been prepared under CA para. 168(1)(c).

Division 4 - Securities

Reg. 53 - Prescribed securities

127. A prescribed security under CA s-sec. 189(1) consists of a prescribed interest under CA s. 5 that is a prescribed interest in relation to which a deed has been approved under CA Division 6 of Part IV (or a corresponding provision of a previous law) where that interest is listed for quotation in the official list of a stock exchange which is a member of the AASE. CR reg. 53 is based on NSW MSR reg. 6 and WA MSTR reg. 6.

PART V - MANAGEMENT AMD ADMINISTRATION

Reg. 54 - Consent to act as director

128. Where a consent of a person to act as a director is signed by his agent and is lodged with the NCSC, the authority, or a verified copy of the authority to do so is required to be annexed to it. CR reg. 54 is based on VIC CR sub-reg. 11(4).

Reg. 55 - Certification of statutory report and auditor’s report

129. The copy of the statutory report lodged with the NCSC under CA s-sec. 239(5) must be certified in the same manner as the statutory report is required to be certified under CA s-sec. 239(3). In addition, the copy of the auditor’s report lodged with the NCSC must be personally signed by the auditor, or, where applicable, by a partner of the auditing firm. CR reg. 55 is based on VIC CR reg. 13.

Reg. 56 - Statement to accompany copy of minute

130. A copy of a minute lodged pursuant to CA s-sec. 244(7) must be accompanied by a statement in accordance with CR form 65 (“Statement concerning copy of minute by representative of holding company relating to proceedings of subsidiary company”). CR form 65 is based on VIC CR form 46.

PART VI - ACCOUNTS, AUDIT AND SPECIAL INVESTIGATIONS

131. Part VI (CR regs 57-61) prescribes the regulations required for the purposes of CA Part VI “Accounts and Audit” and CA Part VII “Special Investigations”.

Reg. 57 - Requirements relevant to accounts and group accounts

132. CR Schedule 7, (Accounts and Group Accounts) sets out the prescribed requirements in relation to CA s-sec. 269(8). See para. 560 of this paper for an explanation of this Schedule.

Reg. 58 - Rounding off of amounts in required accounts or reports

133. Certain companies are permitted, in specified circumstances, to round off amounts to the nearest one thousand dollars in any accounts or reports required for the purposes of the CA.

134. CR reg. 58 is based on existing orders made by State and Territory Corporate Affairs Commissioners pursuant to the provisions of ICAC CA s. 162C.

Reg. 59 - Notice given by inspector

135. A notice given under CA s-secs. 295(1) or (3) must be served in the manner specified in CR reg. 59.

136. CR reg. 59 is based on VIC CR reg. 79 except that CR reg. 59 also allows for service of the relevant notice at the place of business of the person to whom the notice is addressed.

Reg. 60 - Expenses of persons attending for examination

137. A person who is required to attend for examination under CA para. 295(1)(c) is entitled to such allowances and expenses as are allowed pursuant to CA s-sec. 296(10) by the inspector in accordance with the scale set out in CR Schedule 8 (Witnesses’ fees and travelling expenses). See para. 580 of this paper for an explanation of this Schedule.

138. CR reg. 60 is based on VIC CR reg. 80 except that the latter regulation does not prescribe its own scale of fees and expenses. Instead it is stated that the relevant scale is that set by the Evidence (Crown Witnesses Allowances) Regulations 1974.

Reg. 61 - Authentication of record of examination

139. A written record of the questions asked and answers given pursuant to CA s-sec. 298(1) may be authenticated:

(a) by the person(s) who prepared or supervised the preparation of the record of examination, by certifying in writing that the record is a true transcript; or

(b) by any person present at any part of the examination, by signing his name on each page of the record corresponding to the part of the examination at which he was present.

140. CR reg. 61 is new because of the new provision set out in CA s-sec. 298(3) that requirements as to authentication of the record of examination may be prescribed.

PART VII - ARRANGEMENTS, RECONSTRUCTIONS, &c.

141. CR Part VII (regs 62 to 71) contains regulations prescribed for the purposes of:

CA Part VIII - Compromises and arrangements

CA Part IX - Conduct of Affairs of Company in Oppressive or Unjust Manner

CA Part X - Receivers and Managers

CA Part XI - Official Management

CA Part XII - Winding Up

142. CR Part VII contains the following Divisions:

Division 1 - Compromises and arrangements

Division 2 - Reports and forms of account

Division 3 - Official management

Division 4 - Winding up

Division 5 - Dissolution.

Division 1 - Compromises and Arrangements

Reg. 62 - Prescribed information for the purposes of sub-paragraph 316(1)(a)(ii) of the Act

143. Where a meeting is convened pursuant to CA s.315, the company is required to send out a notice containing the information specified in CR reg. 62 (unless the NCSC otherwise agrees) which regulation refers to the requirements of CR Schedule 9 “Schemes of Arrangement” (see paras. 581 to 584 for an explanation of this Schedule).

144. CR reg. 62 is new and has been included for the purposes of the new requirements of CA sub-para. 316(1)(a)(ii).

Reg. 63 - Giving notice under sub-section 318(1) or (7) of the Act

145. The giving of a notice to a person under CA s-secs. 318(1) or (7) is required to be effected by delivering it to him personally or by sending it by prepaid post to his address as shown in the books of the transferor company.

146. CR reg. 63 is based on VIC CR reg. 14.

Division 2 - Reports and Forms of Account

Reg. 64 - Certified copies of reports

147. A copy of a report lodged with the NCSC or of a certificate or other document required to be annexed to it, is required to be certified in the specified manner:

(a) by the receiver of the property of the company or part thereof where the copy is lodged under CA sub-para 328(1)(c)(i);

(b) by a director, secretary or principal executive officer of the company where the copy is lodged under CA s-sec 335(15);

(c) by the person who immediately before the appointment of the liquidator was the official manager of the company, where the copy is lodged under CA s-sec 347(11); and

(d) by the liquidator of the company where the copy is lodged under CA s-sec 375(7).

CR reg. 64 is based on VIC CR sub-reg. 15(1).

Division 3 - Official Management

Reg. 65 - Notice of special resolution extending period of official management

148. A copy of a special resolution lodged under CA s-sec. 344(4) must be set out in or annexed to a notice in accordance with CR form 91.

149. CR form 91 is based on VIC CR form 61B.

Reg. 66 - Verification of copy of report

150. A copy of the report lodged with the NCSC under CA s-secs. 355(12), (13) or (14), and of a certificate or other document annexed to it, must be verified in writing to be a true copy by the person who was the official manager of the company. CR reg. 66 is based on VIC CR sub-reg. 15(2).

Division 4 - Winding Up

Reg. 67 - Matters to be entered in books kept by liquidator

151. The liquidator is required to make entries in his books for the purposes of CA s. 416 regarding those matters which are necessary and proper in order to give a complete and correct record of his administration of the company.

152. CR reg. 67 is based on SA SCR rule 146 except that, unlike the latter rule, CR reg. 67 is not restricted to liquidators who are acting pursuant to a winding up by the Court.

Reg. 68 - Inspection of books kept under section 416 of the Act

153. A liquidator is required to keep at his office the books referred to in CA s.416.

Reg. 69 - Notice of intention to disclaim a lease

154. A liquidator giving notice of his intention to disclaim a lease pursuant to CA para. 454(6)(a) must do so in accordance with CR form 108.

Division 5 - Dissolution

Reg. 70 - Deregistration of defunct company

155. A notice under CA s-sec. 459(2) must be given to the company by sending it by prepaid certified mail.

156. CR reg. 70 is new. ICAC CA s-sec. 308(2), which is the provision equivalent to CA s-sec. 459(2), does not require the notice as to deregistration to be “in the prescribed manner”. The only relevant requirement in ICAC CA s-sec. 308(2) is that the notice be sent by “registered post”.

Reg. 71 - Rate of commission

157. The commission payable pursuant to CA s-sec. 462(3) is to be calculated at the rate of 5%.

158. CR reg. 71 is based on VIC CR reg. 21. To be compared are the provisions of CA sub-para. 105(2)(b)(ii) and CA para. 110(6)(b) which, in the context of imposing a liability on directors to repay certain monies, set an interest rate of 8% The view is that, whilst a rate of at least 8% is appropriate for an interest charge, it is too high for a commission to be paid to the Minister for the exercise by the NCSC of its powers in respect of the disposal of outstanding interests in property of a defunct company.

PART VIII - VARIOUS TYPES OF COMPANIES

Reg. 72 - Certified copy of certificate of incorporation, &c.

159. A certificate of incorporation lodged pursuant to CA para. 512(2)(a) must be certified to be a true copy by a person who, in the place of the corporation’s formation or incorporation, exercises functions similar to those of the NCSC.

16.0. CR reg. 72 is based on VIC CR sub-reg. 9(7), except for the new requirement in the former regulation that the person who certifies the copy of the certificate of incorporation must have custody of the original certificate.

Reg. 73 - Manner of certifying constituent document

161. A copy of a constituent document lodged pursuant to CA para. 512(2)(b) must be certified by one of the following:

(a) a person who, under an applicable law in the place of formation or incorporation, exercises functions similar to those exercised by the NCSC;

(b) a notary public; or

(c) a director, secretary or principal executive officer of the foreign company by affidavit, or where the foreign company is formed or incorporated within Australia or an external Territory, by a written statement.

162. CR reg. 73 is based on VIC CR sub-reg. 9(8) except that:

(a) If the constituent documents are certified in accordance with CR para. 73(a) then the person certifying the documents must have custody of the original documents.

(b) Reference is made in CR para. 73(c) to “a statement in writing” rather than the ICAC CA para. 9(8)(c) reference to a “statutory declaration”. This change is in line with the practice in the CA of requiring written statements rather than statutory declarations on the basis that, since the rules as to statutory declarations are different amongst the States, they should no longer be required.

Reg. 74 - Notice in writing of change or alteration lodged in accordance with paragraph 515(2)(a), (e) or (f) of the Act

163. A written notice of a change in constituent documents lodged pursuant to CA para. 515(2)(a) is required to have annexed to it:

(a) a copy of the instrument effecting the change; or

(b) a copy of the changed document

which has been certified to be a true copy by a person mentioned in CR paras. 73(a), (b) or (c).

164. CR sub-reg. 74(1) is based on VIC CR sub-reg. 16(b).

165. A written notice lodged pursuant to CA para. 515(2)(e) is required to have annexed to it:

(a) a copy of the certificate of incorporation or registration of the registered foreign company, which document evidences the change; or

(b) where no such document exists, a copy of the instrument effecting the change.

Such a copy must be certified to be a true copy by a person mentioned in CR para. 73(a), (b) or (c).

166. CR sub-reg. 74(2) is based on VIC CR sub-reg. 16(c).

167. A written notice of a change in the powers of directors on the local board of a foreign company, lodged pursuant to CA para. 515(2)(f), is required to be accompanied by a written memorandum executed by, or on behalf of, the foreign company, stating the changed or altered powers of the local directors. CR sub-reg. 74(3) is based on VIC CR sub-reg. 16(d).

Reg. 75 - Manner of sending letter under sub-section 518(3) of the Act

Reg. 76 - Manner of sending letter under sub-section 518(4) of the Act

168. A letter sent by the NCSC to a registered foreign company pursuant to CA s-sec. 518(3) is required to be sent by post (CR reg. 75). A letter sent by the NCSC pursuant to CA s-sec 518(4) must be sent by prepaid certified mail (CR reg. 76).

169. CR regs 75 and 76 are new and have been included to take account of the inclusion of new CA s-secs 518(3) and 518(4) which require the NCSC to send, in the prescribed manner, letters to registered foreign companies it suspects of no long carrying on business, or of having ceased to have a place of business in the A.C.T.

PART IX - PAYMENTS INTO AND OUT OF BANKS BY LIQUIDATORS IN VOLUNTARY WINDINGS UP

Reg. 77 - Application

170. Part IX of the CR (regs 77-82) only applies to a liquidator in a voluntary winding up. With respect to a liquidator in a court winding up, equivalent provisions in the Rules of Court will continue to be applicable.

Reg. 78 - Payments into a liquidator’s general account

171. Unless otherwise ordered by the Court or committee of inspection, a liquidator must open a liquidator’s general account, and pay all moneys received by him into such account within 7 days of receipt.

172. CR reg. 78 is based on NSW SCR rule 179. However, by virtue of CR reg. 77 (“Application”), CR regs. 78 to 82 are only applicable to a liquidator in a voluntary winding up.

Reg. 79 - Deposit of bills, notes and securities

173. A liquidator must, as soon as possible after the receipt of any bills, notes or other securities (payable to the company or to the liquidator), deposit them in the bank where he has opened a general account. CR reg. 79 is based on NSW SCR rule 181.

Reg. 80 - Delivery of securities

174. All bills, notes and other securities delivered to the bank where the liquidator has opened a general account, are to be delivered out upon a signed request from the liquidator.

175. CR reg. 80 is based on NSW SCR rule 182.

Reg. 81 - Special bank account

176. The Court may give directions as to the payment, deposit or custody of money or securities payable to or in the possession of a liquidator. (CR sub-reg 81(1)).

177. The Court may authorize a liquidator to make payments into and out of a special bank account. Such authorisation may be given on such terms as the Court thinks fit, and the Court may, if it considers that the account is no longer required, order that the account be closed (CR sub-reg. 81(2)).

178. An office copy of any Court order made under CR sub-reg. 81(2) must be served on the bank by the liquidator (CR sub-reg. 81(3)).

179. CR reg. 81 is based on NSW SCR rule 184.

Reg. 82 - Payments out of liquidator’s general account

180. All payments out of the liquidator’s general account must be made by cheque. Each cheque is required to be signed by the liquidator, and must have written on the face of it the name of the company.

181. CR reg. 82 is based on NSW SCR sub-rule 185(1).

PART X - SPECIAL PROVISIONS APPLICABLE TO CERTAIN MEETINGS

182. Part X (CR regs. 83-108) contains provisions dealing with the convening of, conduct of and procedure at meetings which are requried to be held by the CA and which are not otherwise regulated by that Act.

183. The proposed regulations in Part X are based generally on VIC CR Part V and relevant provisions of the NSW SCR. These provisions have, however, been extensively rationalized and consolidated.

184. Part X is separated into the following Divisions:

Division 1 - Application

Division 2 - Convening and holding of meetings and voting at meetings.

Division 3 - Appointment of proxies and their attendance at meetings

Division 1: Application

Reg. 83 - Application

185. CR Division 1 of Part X applies to the following categories of meetings:

(a) meetings of members, creditors or contributories of a company;

(b) joint meetings of creditors and members of a company, or of a company and its creditors;

(d) meetings of debenture holders called pursuant to a covenant in the trust deed.

(CR sub-reg. 83(2)).

186. The provisions of CR Part X are not, however, applicable:

(a) to directors’ meetings;

(b) to meetings of members of a company other than meetings for the purposes of CA Part XI or Part XII; and

(CR sub-reg 83(1)).

187. CR reg. 83 is based on VIC CR reg. 25 except that:

(a) VIC CR reg. 25 identifies the categories of meeting to which VIC CR Part V applies by reference to the appropriate section of the VIC CA. CR reg. 83 does not do this. Instead reference is made to the broad categories of meetings to which CR Part X may be applicable.

(b) The words of CR reg. 83 make it quite clear that the provisions of CR Part X are to be read as being subject to the CA, CR or the Supreme Court Rules. Hence if anything in the CA, CR or the Supreme Court Rules is at variance with a regulation in Part X, then the first mentioned provision will prevail.

Division 2: Convening and holding of meetings and voting at meetings

Reg. 84 - Notice of meetings

188. The person calling a meeting is required:

(a) to give at least 7 days notice of the time and place of the meeting by advertisement in a daily newspaper circulating generally in the Territory, and in any State or other Territory in which the company carries on business or has carried on business during the previous two years; and

(b) to send by post, at least 14 days before the meeting, notice of the meeting to all persons entitled to receive notice.

189. CR reg. 84 is based on VIC CR regs. 26 and 44. The latter regulations have been combined to form a single regulation governing the notice to be given of all meetings to which Part X applies.

Reg. 85 - Proof of notice

190. A statement, made in writing, by the person calling a meeting, to the effect that a notice has been sent to a specified person by prepaid post is, in the absence of evidence to the contrary, evidence of such notice having been sent.

191. CR reg. 85 is based on NSW SCR rule 95 except that rule 95 has been modified so that:

- a statement in writing, rather than an affidavit, is required; and

- the statement in writing is evidence of postage of the notices if there is no evidence to the contrary.

Reg. 86 - Place of meeting

192. The date, time and place of the meeting is to be that which the person calling the meeting considers most convenient for the majority of persons entitled to receive notice of the meeting.

193. CR reg. 86 is based on NSW SCR rule 96 except that, unlike the latter provision, CR reg. 86 does not specifically provide for the possibility of convening, at different times and places, meetings of creditors and meetings of contributories.

Reg. 87 - Costs of convening a meeting of creditors or contributories or of a committee of inspection.

194. Where any person (other than a liquidator or official manager) calls a meeting of creditors or contributories, he is required to pay the costs of calling such a meeting. In addition, before the meeting is convened, he is required to deposit with the liquidator or official manager such sum which may be required as security for payment of the costs. (CR sub-reg 87(1)).

195. The costs of calling a meeting of a committee of inspection shall, where the Court so orders or the committee so resolves, be repaid to the person convening the meeting out of the assets of the company (CR sub-reg 87(2)).

196. CR reg. 87 is based on NSW SCR rule 97.

Reg. 88 - Quorum

197. There is required to be present at a meeting, in person or by proxy, at least 2 persons who are entitled to vote. Otherwise the meeting will only be able to deal with specified procedural matters (CR sub-reg. 88(1)).

198. CR sub-reg. 88(1) is based on VIC CR sub-reg. 27(1) and VIC CR regs 37 and 45 except that, under the VIC CR, if a quorum is not present at a meeting of debenture holders (VIC CR reg. 37) or a joint meeting of creditors and members (VIC CR reg. 45), then the meeting cannot act for any purpose at all.

199. Where only one person is present at the meeting, if that person represents a number of persons sufficient to constitute a quorum, the meeting will be sufficiently constituted. CR sub-reg. 88(2) is based on NSW SCR sub-rule 103(2).

200. If a quorum is not present, or the meeting is not otherwise sufficiently constituted, within 30 minutes of the appointed time, the meeting will be adjourned in accordance with CR sub-reg. 88(3). If the same situation arises at the adjourned meeting then it will lapse (CR sub-reg. 88(4)).

201. CR sub-reg. 88(3) is based on VIC CR sub-reg. 27(2). The latter provision, however, only applies to meetings of creditors, members or contributories. The VIC CR does not have an equivalent provision for the purposes of meetings of debenture holders or joint meetings of creditors and members.

202. CR sub-reg. 88(4) is based generally on para 43(b)(ii) of Table A in CA Schedule 3.

Reg. 89 - Chairman

203. If a meeting is convened by a liquidator, provisional liquidator or official manager, then that person (or his nominee) is to be the chairman of the meeting (CR sub-reg. 89(1)).

204. At other meetings governed by CR Part X the persons present and entitled to vote at the meeting are required to elect one of their number to be chairman (CR sub-reg. 89(2)).

205. CR reg. 89 is based on VIC CR regs. 28 and 46.

Reg. 90 - Adjournment of meeting

206. The chairman is able to adjourn the meeting, if so directed by the meeting, or with the consent of the meeting (CR sub-reg. 90(1)).

207. CR sub-reg. 90(2) specifies the circumstances in which an adjourned meeting may be held at a place other than the original place of the meeting.

208. CR reg. 90 is based on VIC CR regs. 28, 39 and 47. CR reg. 90 does, however, include a new provision to the effect that the liquidator, provisional liquidator or official manager may order that the meeting be held at a place other than the original place of meeting.

Reg. 91 - Voting on resolutions

209. A vote taken at a meeting other than a joint meeting of members and creditors or a joint meeting of a company and its creditors, is to be decided on a show of hands unless a poll is demanded by the persons specified in CR sub-reg. 91(1). If a vote is taken on the basis of a show of hands then the chairman’s declaration of the result of the poll, is conclusive evidence of the result of the vote. CR sub-regs. 91(1) to (4) are based on CA para 16 of Table A in CA Schedule 3.

210. A resolution put to the vote of a joint meeting of members and creditors, or of a company and its creditors may only be decided on a show of hands. CR sub-reg. 91(5) is based on VIC CR reg. 48.

Reg. 92 - Taking a poll

211. Where a poll is demanded, the chairman is to determine the manner in which it is to be taken and the time at which it is to be taken, unless it relates to his election or a question of adjournment in which case it must be taken forthwith. CR reg. 92 is based on para 47 of Table A in CA Schedule 3.

Reg. 93 - Carrying of resolutions after poll has been duly demanded

212. After a poll has been demanded, a resolution is to be taken as carried if:

(a) at a meeting of creditors or debenture holders, a majority (in number and value) of those present and voting, has voted in favour of the resolution;

(b) at a meeting of contributories or members a majority of the votes cast by the contributories or members is in favour of the resolution. In computing this majority reference is to be made to the number of votes to which each member is entitled by the CA or by the articles of the company.

213. CR reg. 93 is based on NSW SCR sub-rule 99(1) except that the latter provision is not restricted to determining the results of a vote taken by poll. It applies to all resolutions (cf. CR reg. 91 which provides for the passing of resolutions by a show of hands).

Reg. 94 Casting vote

214. Should the result of a poll be an equality of votes, the chairman is to have the casting vote.

215. CR reg. 94 is based on VIC CR regs. 41 and 49 except that:

(a) CR reg. 94 provides that the chairman is to have a casting vote in addition to his deliberative vote (if any); and

(b) CR reg. 94 is expressed to be of general application whereas VIC CR regs 41 and 49 are only expressed to apply to particular classes of meetings.

Reg. 95 - Creditors who may vote

216. A creditor will not be entitled to vote at a meeting of creditors unless:

(a) his debt or claim has been admitted by the liquidator or official manager; or

(b) he has lodged with the chairman (or the person named in the notice convening the meeting as being entitled to receive particulars of debts) the particulars of his debt or claim, or where required, a formal proof of his debt or claim (CR sub-reg 95(1)).

217. CR sub-reg. 95(1) is based on VIC CR sub-regs. 31(1) and 31(2).

218. Before a creditor is entitled to vote in respect of an unliquidated or contingent debt, or any debt the value of which has not been determined, a just estimate of its value must be made (CR sub-reg. 95(2)).

219. Where a debt or claim is secured by a bill of exchange, promissory note, or other negotiable instrument or security etc, a creditor must treat as a security the liability on that instrument of persons other than the company. The value of such security is required to be estimated and, for the purposes of voting at a meeting, deducted from his proof of debt or claim (CR sub-reg. 95(3)).

220. CR sub-regs. 95(2) and (3) are based generally on VIC CR sub-reg. 31(3).

Reg. 96 - Votes of secured creditors

221. A secured creditor is only entitled to vote in respect of the balance (if any) of his debt which remains after deducting

the value of the security. In addition, if a secured creditor votes in respect of his whole debt or claim he is deemed to have surrendered his security unless the Court otherwise orders. CR reg. 96 is based on VIC CR reg. 32.

Reg. 97 - Creditors may be required to give up security

222. Where a secured creditor has voted pursuant to CR sub-reg. 96(1), the liquidator, within 28 days, is entitled to require the creditor to give up the security on payment of its value (as assessed by the secured creditor) (CR sub-reg. 97(1)).

223. At any point, with the liquidator’s leave, before the request referred to in CR sub-reg. 97(1) is made, a secured creditor can reassess the value of his security (CR sub-reg. 97(2)).

224. CR reg. 97 is based on NSW SCR rule 107.

Reg. 98 - Admission and rejection of proofs for purposes of voting

225. Subject to any previous decision by the liquidator or official manager, the chairman of a meeting is entitled to admit or reject proof of a debt or claim for the purposes of voting (CR sub-reg. 98(1)).

226. Where the chairman is in doubt as to whether or not to admit a proof of debt or claim, the creditor is entitled to vote, although the vote may later be declared to be invalid (CR sub-reg. 98(2)). A creditor may appeal to the Court within 14 days against the chairman’s decision to admit or reject a proof of debt or claim (CR sub-reg 98(3)).

227. CR sub-regs 98(1) and 98(2) are based on VIC CR sub-regs 34(1) and (2) respectively. CR sub-reg. 98(3) is new.

Reg. 99 - Minutes of meeting

228. The chairman is required to ensure that the minutes of the meetings are drawn up and entered in a book, and that this record is signed by him and a certified copy thereof lodged with the NCSC (CR sub-regs. 99(1) and 99(3)).

229. A list of those persons present at any meeting is to be made and kept in accordance with CR sub-reg. 99(2)

230. After a meeting of creditors or members, the official manager is required to ensure that the minutes and list made at the meeting are available for inspection by creditors or members at the registered office or principal place of business of the company (CR sub-reg. 99(4)). A liquidator is required to keep these documents at his office (CR sub-reg. 99(5)).

231. CR sub-regs 99(1) and 99(2) are based on VIC CR sub-regs 35, 42 or 50, except that CR sub-reg. 99(2) is quite explicit in saying that the list of persons present at the relevant meeting must include those persons who were present by proxy.

232. CR sub-reg. 99(3) is based on VIC CR reg. 36. CR sub-reg. 99(3) does not apply to the chairman of a meeting of debenture holders because of the provisions of CA s-sec. 168(3). This provision says that meetings of debenture holders shall be conducted in accordance with the provisions of the trust deed or, if the deed is silent, as directed by the chairman of the meeting.

Division 3: Appointment of proxies and their attendance at meetings

Reg. 100 - Appointment of proxies

233. A person entitled to attend and vote at a meeting is entitled to appoint a natural person over the age of 18 years to attend and vote in his place at the meeting (CR sub-reg. 100(1)).

234. A proxy so appointed has the same right to speak and, subject to CR reg 101, to vote at the meeting as the person appointing him (CR sub-reg. 100(2)).

235. CR reg. 100 is based on VIC CR reg. 68. To be noted, however, is the fact that VIC CR reg. 68 does not provide for the appointment of proxies by debenture holders. CR reg. 100 applies to all persons who are entitled to attend and vote at any of the types of meetings to which CR Part X applies. The same comment applies to the remaining draft regulations in CR Part X.

Reg. 101 - Instruments of proxy

236. The person appointing a proxy may specify the manner in which the proxy is to vote in respect of a particular resolution. CR reg. 101 is based on sub-article 54(2) of Table A in CA Schedule 3.

Reg. 102 - Proxy forms to accompany notice of meetings

237. A form of proxy in accordance with the requirements of CR reg 102 is required to be sent out with each notice of the meeting.

238. CR reg. 102 is based on VIC CR reg.71.

Reg. 103 - Form of proxies

239. An instrument of appointment of a proxy is required to be in accordance with CR form 128. CR sub-reg. 103(1) is based on VIC CR sub-reg. 69(1).

240. The person appointing a proxy is required to sign the instrument of proxy. CR sub-reg. 103(2) is based on VIC CR sub-reg. 69(2) except that provision has now been made for proxies who are incapable of writing to attach their mark, rather than their signature, to the proxy form.

241. Where the person appointing a proxy is blind or unable to write, the proxy can only be accepted if he attaches his signature or mark to the instrument after it has been completed and read to him by a witness. Such a witness is also required to complete the certificate included in CR form 128. CR sub-reg. 103(3) is based on VIC CR reg. 70.

Reg. 104 - Liquidator, provisional liquidator, official manager or chairman may act as proxy

242. The liquidator, provisional liquidator, official manager or chairman of a meeting, may be appointed as a general or special proxy. CR reg. 104 is based on VIC CR reg. 74.

Reg. 105 - Voting by proxy where financially interested

243. A proxy, except in specified cases, is not permitted to vote for any resolution which would entitle the proxy, or an associated person, to receive any remuneration from the assets of the company (except as a creditor, rateably with other creditors). CR reg. 105 is based on VIC CR reg. 75.

Reg. 106 - Liquidator, official manager or trustee may appoint deputy

244. A liquidator, official manager or trustee who holds a proxy is entitled to appoint a deputy to use the proxy on his behalf. However, the deputy may not be directed to use the proxy in a situation where the liquidator, if acting in person as the proxy, would be acting in contravention of CR reg. 105.

245. CR reg. 106 is based on VIC CR reg. 76.

Reg. 107 - Proxies appointed by a corporation

246. Where a corporation has, pursuant to CA s-sec. 244(3), appointed a person to act as proxy at a meeting, a copy of the resolution (verified or under the seal of the corporation) is conclusive evidence of his authority to do so. CR reg. 107 is based generally on NSW SCR rule 110.

Reg. 108 - Time for lodging proxies

247. In order to be effective, an instrument appointing a proxy, or any other related document, shall not be required to be received by the specified person more than 48 hours before the meeting.

248. CR reg. 108 is based on CA para. 243(1)(c).

PART XI - PROOF OF DEBTS, CLAIMS OR TITLES TO PRIORITY

248A. Part XI of the CR (CR regs. 109 - 129) deals with the procedure for establishing a debt or claim against a company in liquidation. A creditor whose debt or claim is admitted by the liquidator has a right to be paid or to receive a dividend out of the assets of the company (see CR Part XIII which deals with the payment of dividends).

249. The CR provisions apply to both compulsory and voluntary windings up, unlike the VIC CR which are limited to voluntary windings up only. (See VIC CR reg. 51. The regulations of the other States, except the NSW SCR, are similarly limited).

250. This Part is based largely on the NSW SCR rather than the VIC CR as the NSW rules contain more comprehensive provisions dealing with, and a more flexible procedure for, the admission of debts and claims by the liquidator.

Reg. 109 - Establishing title to priority

251. A title to priority is to be established in the same manner as a debt or claim. This provision is based on NSW SCR sub-rule 153(3), but has been expanded to cover the whole of CR Part XI. It has been made so as to avoid constant references which would otherwise be necessary.

Reg. 110 - Proof of debts or claims

252. Creditors need not formally prove their debts or claims. However, the liquidator may, at his discretion, require formal proof to be submitted. However, he must do this before rejecting any debt or claim (see CR sub-reg. 119(4)). (CR sub-reg. 110(1)).

253. CR sub-reg. 110(1) is based on NSW SCR rule 150. This rule differs from VIC CR reg. 53 which requires every creditor to prove his debt or claim unless the Court directs that any creditor or class of creditors be admitted without proof. CR reg. 119 deals with the admission by the liquidator of a debt or claim without formal proof and CR reg. 121 deals with formal proofs.

254. A reference, in Part X or Part XI, to a “proof of debt or claim” (as opposed to a formal proof) is to be taken as a reference to:

(a) a formal proof of debt or claim referred to in CR reg. 121; or

(b) particulars of a debt or claim submitted by or on behalf of a creditor to the liquidator for the purposes of having that debt or claim admitted without formal proof under CR reg. 119.

(CR sub-reg. 110(2)).

255. CR sub-reg. 110(2) is new and has been included to facilitate the application of various provisions to both the formal proof of debt or claim and to any particulars submitted to the liquidator in respect of that debt or claim.

Reg. 111 - Notice to submit particulars of debts or claims

256. The liquidator is to advertise a notice calling on creditors to submit to him particulars of their debts or claims. The particulars so submitted must comply with the provisions relating to “proofs of debt or claim” (see special definition in CR sub-reg. 110(2) above).

257. CR reg. 111 is based on NSW SCR rule 151 except that -

(a) the title and the regulation is to refer to submitting particulars, rather than lodging informal claims so as to be consistent with the content of the notice; and

(b) it is not expressed to be limited to where the liquidator does not require formal proof.

258. The purpose of this provision is to assist the liquidator in the process of admitting debts or claims by enabling him at an early stage in the winding up to ascertain the number and identity of the unsatisfied creditors and the amount of outstanding liabilities. It will, for example, help the liquidator to determine the accuracy of the report as to the affairs (formerly the “statement of affairs”) of the company.

259. Where the liquidator decides that he may wish to admit a debt or claim without formal proof, the particulars may provide him with further evidence of that debt or claim in addition to the evidence present in the books of the company, or, if insufficient, indicate that a formal proof will be required.

Reg. 112 - Preparation of a proof of debt or claim

260. A creditor need not himself prepare the particulars or the formal proof to be submitted to the liquidator. But where he does not, the person who does prepare the “proof” is to state the authority that has been given to him by the creditor to do so and the reason why he personally knows that the debt or claim is valid. CR reg. 112 is based on NSW SCR rule 154 and VIC CR reg. 56, except that “affidavit” and “statutory declaration” respectively have been replaced by “proof of debt or claim” (see CR sub-reg. 110(2)).

Reg. 113 - Disclosure of security

261. A creditor is to state whether or not his debt or claim is secured, and if it is he must disclose the nature and extent of the security. CR reg. 113 is based on NSW SCR rule 156 and VIC CR reg. 58, except that “affidavit” and “statutory declaration” respectively, have been replaced by “proof of debt or claim”.

Reg. 114 - Discounts

262. A creditor is to deduct from his debt or claim all discounts which ordinarily would have been allowed if the company was still carrying on business. CR reg. 114 is based on NSW SCR rule 167 and VIC CR reg. 60, except for some drafting changes, and the NSW rule refers to “trading discounts” rather than “all discounts” as in the CR and the VIC CR.

Reg. 115 - Periodical payments

263. Where a company has a liability to make periodical payments and the relevant date in relation to the winding up is after the date on which the last payment was due but before, the date on which the next payment was due, a creditor is able to seek to have admitted that proportion which is represented by the intervening period as well as any unpaid amounts due in respect of prior complete periods. This provision does not, however, affect a landlord’s right to demand payment for premises rented to the company which the liquidator continues to occupy after the commencement of the winding up. CR reg. 115 is based on NSW SCR rule 168 and VIC CR reg. 61 with some drafting changes.

Reg. 116 - Debt or claim payable at a future time

264. The liquidator may admit in full a debt or claim which is payable after the relevant date in relation to the winding up by making a deduction of a proportion of the debt or claim for the period between the date of the payment of any subsequent dividend

and the time at which the debt or claim would have become payable. CR reg. 116 is based on NSW SCR rule 169 and VIC CR reg. 62, with some drafting changes.

Reg. 117 - Employees’ wages

265. A single “proof” may be prepared and submitted by one person on behalf of all employees demanding remuneration from the company. CR reg. 117 is based on NSW SCR rule 170 (cf. VIC CR sub-reg. 53(2) which mentions only claims for “wages” and does not specifically refer to commission and leave entitlements).

266. CR sub-reg. 121(3) now specifies the relevant form to be completed in respect of a formal proof for employee remuneration.

Reg. 118 - Production of bills of exchange and promissory notes

267. Where the company is liable on a negotiable instrument or security, the relevant document must be produced to the liquidator, unless the Court otherwise orders, before the debt or claim can be admitted for any purpose (including voting). CR reg. 118 is based on NSW SCR rule 171.

Reg. 119 - Admission of debts or claims without formal proof

268. If the liquidator has satisfied himself from such evidence as he has obtained that a debt or claim is valid, he may admit it without requiring formal proof (CR sub-reg. 119(1)). But where, on

the other hand, he is not satisfied of the validity of a debt or claim, he will not be able to reject it without first requiring the creditor to submit a formal proof in respect of it (CR sub-reg. 119(4)).

269. Where the liquidator admits a debt or claim without formal proof he will not need to formally admit it in writing. A notice of any subsequent dividend will be sufficient notification of the admission (CR sub-regs. 119(2) and (3)).

270. CR reg. 119 is based on NSW SCR rule 152 except that CR sub-reg. 119(4) does not make a specific reference to CR reg. 120 (cf. VIC CR where only the Court may admit without proof).

Reg. 120 - Notice to creditors to submit formal proofs

271. The liquidator will be able to fix a time within which debts and claims must be formally proved by those creditors whose debts or claims have not already been admitted (CR sub-reg. 120(1)). A creditor who fails to submit a formal proof within that time will not be able to participate in any distribution made before his debt or claim is admitted (CR sub-reg. 120(3)). CR sub-regs. 120(1) and (3) are based on NSW SCR sub-rule 153(1).

272. The liquidator is not only required to advertise the call for formal proofs, but is also to give notice to each person who he knows to be a creditor (not simply those who appear in the report as to affairs (formerly the “statement of affairs”) as in VIC CR sub-reg. 54(2)). It is to be noted nevertheless that in

some circumstances a liquidator will be fixed with constructive notice of possible creditors of whose existence he ought to be aware: Re Armstrong-Whitworth Securities Co. [1947] Ch. 678. CR sub-reg. 120(2) is based on NSW SCR sub-rule 153(2), except that the liquidator is not required to place the notification in the Gazette and “prescribed newspaper” has been replaced by a newspaper circulating generally in each State or other Territory in which the company has been carrying on business.

Reg. 121 - Formal proof of debt or claim

273. A debt or claim is to be formally proved by submitting to the liquidator a formal proof in the appropriate prescribed form. Such formal proof may be delivered or sent by post to the liquidator. CR reg. 121 is new, although sub-regs. (2) and (3) are based on NSW SCR sub-rules 155(2) and (3) respectively.

274. The purpose of this provision is to make clear the form in which a debt or claim is to be formally proved.

Reg. 122 - Contents of formal proof of debt

275. This provision sets out the particulars and accounts to be contained in and the supporting vouchers to be referred to in the formal proof. CR reg. 122 is based on NSW SCR sub-rule 155(1) and VIC CR reg. 57.

Reg. 123 - Costs of proof

276. The cost of proving or amending a debt or claim will be borne by the creditor unless the Court orders that they are to be paid out of the assets of the company or by the liquidator. CR reg. 123 is based on NSW SCR rule 157 and VIC CR reg. 59, except that the CR has been extended to cover the costs of amending a “proof”.

Reg. 124 - Liquidator to notify receipt of proof of debt or claim

277. A liquidator is required, when requested to do so, to notify a person that he has received a proof of debt or claim and whether or not it has been admitted under CR reg. 119.

Reg. 125 - Time for liquidator to deal with proofs

278. A liquidator has 28 days after he receives a request from a creditor to do so, to decide in writing whether he will admit or reject a formal proof wholly or in part, require further evidence in support of it, or apply to the NCSC for further time in which to consider the proof (CR sub-reg. 125(1)). However, where the liquidator notifies the creditor that he requires further evidence, the relevant period only starts to run from the time he receives a sufficient written answer from the creditor (CR sub-reg. 125(3)).

279. A creditor may apply to the Court for a decision on a formal proof if the liquidator fails to give notice of his decision within the relevant period (CR sub-reg. 125(2)).

280. CR reg. 125 is based on rule 165 of the NSW SCR except that:

(a) the NCSC rather than the Court has been given the power to determine whether the liquidator is to have any extensions of time within which to decide on a proof; and

(b) the requirement made of a liquidator who has given notice of his intention to declare a dividend to deal with proofs within 14 days has been omitted.

Reg. 126 - Grounds of rejection and notice to creditor

281. The liquidator is required to notify a creditor in the prescribed form of the grounds of his rejection of that creditor’s formal proof. The Court is to be given power to extend the time in which the creditor may appeal against the rejection. CR sub-regs. 126(1)—(4) are based on NSW SCR rule 159 (cf. VIC CR sub-reg. 55(2)).

282. The notice of a dividend is sufficient notification of the admission of a formal proof. CR sub-reg. 126(5) is based on NSW SCR rule 158 (cf. VIC CR sub-reg. 55(4) which applies only in respect of admissions under VIC CR sub-reg. 55(3)).

Reg. 127 - Revocation or amendment of decision of liquidator

283. If it is believed that a creditors debt or claim has been improperly admitted or rejected, the liquidator (after notifying that creditor), may revoke or amend the decision to admit or reject the proof. If such a decision is made then the creditor may be liable to repay, or be paid, certain monies to or by the liquidator. CR reg 127 is based on s-secs. 102(3) to (b) of the Bankruptcy Act 1966).

Reg. 128 - Withdrawal or variation of proof of debt or claim

284. A creditor is able to withdraw or vary his own “proof” with the consent of the liquidator. CR reg. 128 is based on NSW SCR rule 162. There is no corresponding right given in the VIC CR.

Reg. 129 - Oaths

285. The liquidator may administer oaths or affirmations, and take affidavits for the purposes of admitting debts or claims in a Court winding up. CR reg. 129 is based on NSW SCR rule 163. Note that VIC CR reg. 66 is not limited to winding up by the Court.

PART XII - SETTLEMENT OF LIST OF CONTRIBUTORIES BY LIQUIDATOR

286. Part XII (regs. 130 - 134) contains regulations setting out the procedure which the liquidator must follow when he settles the list of contributories pursuant to CA s-sec. 378(1). These regulations are based generally on NSW SCR rules 138 to 143 and forms 63 to 70.

Reg 130 - Liquidator to make out provisional list of contributories

287. A liquidator, when he considers it necessary, may make out a provisional list of contributories of the company (in accordance with CR form 134).

288. CR reg. 130 is based on NSW SCR rule 138 except that there is no requirement that the provisional list of contributories be lodged, in the case of a winding up by the Court, with the Court. This requirement has not been included in the CR for two reasons:

(1) it was thought that it should be left up to the Judges of the State and Territory Supreme Courts, in making SCR, to decide whether they wished such documents to be lodged with the Court; and

(2) at present NSW is the only jurisdiction requiring lodgment.

Reg. 131 - Time and place for settlement of list

289. The liquidator is required to give each person included in the provisional list of contributories no less than 14 days written notice (in accordance with CR form 135) of the time and place appointed to settle that list.

290. CR sub-reg. 131(1) is based on NSW SCR sub-rule 139(1).

291. A statement in writing by the liquidator or by some person acting on his behalf, that the required notice was sent by prepaid post will be evidence of it having been sent (CR sub-reg. 131(2)).

292. CR sub-reg. 131(2) is a new provision.

Reg 132. - Settlement of list of contributories

293. A liquidator is required to hear and determine any person’s objection to being included as a contributory before settling the list of contributories (CR sub-reg. 132(1).). He is required to settle and certify the list (in accordance with CR form 137) at the time and place specified in the notice given under CR reg. 131 (CR sub-reg. 132(2)).

294. CR reg 132 is based on NSW SCR rule 140, except that there is no requirement that the final list of contributories be lodged with the Court.

Reg. 133 - Supplementary list

295. The list of contributories may be varied or added to by the liquidator at any time (in accordance with CR forms 138 and 139) (CR sub-reg. 133(1)). CR reg. 131 and CR sub-reg. 132(1) also apply to the making out, settling and certifying of a supplementary list under CR sub-reg. 133(1) (CR sub-reg. 133(2)).

296. CR reg. 133 is based on NSW SCR rule 141 except that there is no requirement in the CR for the supplementary list to be lodged with the Court.

Reg. 134 - Notice to contributories

297. A liquidator is required to give written notice (in accordance with CR form 140) to a person placed on the list or supplementary list of contributories of the company, within 14 days after its settlement, and he must advise that person that he may appeal to the Court. (CR sub-regs. 134(1) to 4).

298. CR sub-regs 134(1) to (4) are based on NSW SCR sub-rule 142(1) except that the new sub-regulations make it clear that the Court may extend the time for lodging an appeal.

299. A statement in writing by the liquidator or by some person acting on his behalf, that the required notice was sent by prepaid post is evidence of it having been sent (CR sub-reg. 134(5)).

300. CR sub-reg 134(5) is a new provision.

PART XIII - DIVIDENDS AND DISTRIBUTION OF SURPLUS IN A WINDING UP

301. Part XIII (CR regs. 135 - 144) contains regulations dealing with the payment of dividends to creditors of an insolvent company and the return of capital to contributories. There are two divisions in this Part:

302. Division 1 - Payment of dividends.

303. Division 2 - Distribution of surplus.

Division 1 - Payment of dividends

Reg. 135 - Dividend payable only on admission of a debt or claim

304. Only creditors whose debts or claims have been admitted by the liquidator at the date of the distribution of dividends must be paid a dividend in the winding up of the affairs of a company. CR reg. 135 is based on NSW SCR rule 175.

Reg. 136 - Application of Part XI

305. CR Part XI (“Proof of Debts, Claims or Titles to Priority”) applies, for the purposes of Part XIII, in relation to the formal proof of a debt or claim, and the rejection and appeals against the rejection of a formal proof of a debt or claim.

306. CR reg. 136 is new and has been included to make it clear that the relevant provisions of CR Part XI apply to CR Part XIII.

Reg. 137 - Liquidator to give notice of intention to declare a dividend

307. The liquidator is required to give notice of his intention to declare a dividend not more than 2 months before the intended date by notice in the Gazette (in accordance with CR form 142) and in writing (in accordance with CR form 143 or CR form 144) to:

(a) a creditor mentioned in the statement prepared under either CA s-sec. 375(1) or CA sub-para. 398(2)(b)(ii);

(b) in the case of a members’ voluntary winding up, to each person appearing by the company’s books to be a creditor; and

(c) to any other person who the liquidator knows is claiming to be a creditor of the company and whose debt or claim has not been admitted (CR sub-reg. 137(1)).

308. This notice must specify a date (no less than 21 days after the date of the notice) on or before which formal proof of a debt or claim is to be lodged for the purpose of participation in the distribution. (CR sub-reg. 137(2)).

309. CR sub-regs 137(1) and (2) are based on NSW SCR sub-rule 176(1).

310. Subject to CR reg.140, a person, who does not lodge a formal proof of debt or claim within the period specified in the notice, will be excluded from participation in that distribution (CR sub-reg. 137(3)).

311. CR sub-reg 137(3) is new and has been included in order that it may be quite clear that creditors who do not lodge a formal proof of debt in the manner and within the time specified, will be excluded from any dividend which may be declared.

Reg. 138 - Time allowed for dealing with formal proofs of debt or claim

312. Once a liquidator has given notice under CR sub-reg. 137(1) he must within 14 days of the date specified in the notice, admit or reject any formal proofs received by him, or else require further evidence in support of it. If the liquidator does not take this action, a creditor may appeal to the Court.

Reg. 139 - Declaration and distribution of dividends

313. The liquidator will be required to declare and distribute, as soon as possible, all available monies among creditors whose debts or claims have been admitted. When a dividend is declared the liquidator is required to send a notice of that declaration (in accordance with CR form 145) to every person entitled to a dividend. CR reg. 139 is based on sub-sections 140(1) and (2) of the Bankruptcy Act 1966.

Reg. 140 - Rights of creditor who has not proved debt before declaration of dividend

314. A creditor whose debt or claim has not been admitted before the payment of a dividend may subsequently share in later dividends, although he is not entitled to interfere with any distribution made to creditors before his debt or claim was admitted. CR reg. 140 is based on s. 144 of the Bankruptcy Act 1966.

Reg. 141 - Postponement of declaration

315. If the liquidator believes it is necessary to postpone the declaration of a dividend he is obliged to issue another notice in accordance with CR form 142. It is not, however, necessary to give a fresh notice to a creditor whose debt has not been admitted.

316. CR reg. 141 is based on NSW SCR sub-rule 176(4), except that there is now no express statement to the effect that a liquidator need not give a fresh notice to a creditor whose debt has not been admitted.

Reg. 142 - Payment of dividend to a person named

317. A person to whom a dividend is payable may lodge with the liquidator an authority (in accordance with CR form 146), to pay the dividend to some other person, and the liquidator is required to pay the dividend accordingly. CR reg. 142 is based on NSW SCR sub-rule 176(5).

Division 2 - Distribution of surplus

Reg. 143 - Distribution of surplus in a winding up by the Court

318. In a winding up by the Court, an order authorising the liquidator to distribute any surplus to persons entitled to it, is required to have annexed to it a schedule in accordance with CR form 147. (CR sub-reg. 143(1)). The liquidator is also required to send to each person to whom any surplus is distributed, a notice in accordance with CR form 148 (CR sub-reg.143(2)).

319. CR reg. 143 is based on NSW SCR sub-reg. 178(2)).

Reg. 144 - Distribution of surplus as directed

320. A person who receives a notice of distribution of surplus under CR sub-reg. 143(2) may lodge an authority (in accordance with CR form 149) and the liquidator will be obliged to distribute the surplus to the person specified in the authority. CR reg. 144 is based on NSW SCR sub-rule 178(4)).

PART XIV - MISCELLANEOUS

Reg. 145 - Penalty

321. A person is guilty of an offence against the CR and will be subject to a penalty of $250 if he:

(a) acts in a manner forbidden by the CR;

(b) does not do that which he is required or directed to do under the CR; or

322. CR reg. 145 is based on VIC CR reg. 24 except that the penalty has been increased from $40 to $250 in line with the attempt in the CA to devise a more appropriate monetary penalty for offences.

Reg. 146 - Prescribed period for appeals from decisions of the Commission

323. A person may appeal from an act, omission, or decision of the NCSC within 21 days of the relevant act etc. of the NCSC.

324. CR reg. 146, which is prescribed for the purposes of CA s.537, is a new provision.

Reg. 147 - Certified translations of instruments

325. Where a translation under CA s.548 is made outside Australia it must be certified by:

(a) a person to whom, under the applicable law in the place of the corporation’s formation or incorporation, the custody of the original instrument etc. is committed, and who exercises under that law functions similar to those exercised by the NCSC;

(b) a notary public or translator public duly admitted and sworn in accordance with the law of the place in which the corporation is formed or incorporated; or

(c) an Australian consular officer in the place of the corporation’s formation or incorporation (‘Australian consular officer’ is defined in CR sub-reg. 149(3)).

(CR para. 147(1)(a)).

326. Where a translation under CA sec. 548 is made within Australia it will be required to be certified by a person approved by the NCSC (CR para. 147(1)(b)).

327. Before accepting a translation for lodgment, the NCSC may require evidence as to the ability to make the translation of the person who made the translation. (CR sub-reg. 147(2)).

328. CR reg. 147 is based on VIC CR reg. 17.

SCHEDULE 1 - LIST OF FORMS

329. Schedule 1 sets out the following information for the purposes of CR reg. 3:

(a) column 1 - details of the provisions in the CA for which forms are prescribed,

(b) column 2 - details of any regulations for the purposes of which forms are prescribed,

(c) column 3 - a short description of all the forms in Schedule 2, with the description of each form being next to the number of the section in the CA or the regulation for the purposes of which it is prescribed, and

(d) column 4 - the number of each form alongside the relevant description in column 3.

330. CR reg. 3 and CR Schedule 1 are based on VIC CR sub-reg. 5(1) and Schedule 1 respectively.

SCHEDULE 2 - FORMS

331. Schedule 2 (forms 1 to 153) contains all the forms prescribed for the purposes of the CA and CR.

Companies Form 1: Verification or certification of documents or copies of documents

332. CR form 1 sets out the form of the statement in writing, referred to in CR reg 12, which is required when verifying or certifying a document or a copy of a document relating to a corporation.

333. CR form 1 is a new form which has been included for the purposes of CR reg. 12 which is a new provision setting out the general requirements for verification or certification of documents (see paras 31 and 32 of this explanatory statement).

Companies Form 2: Application for registration*as an auditor *and* a liquidator

334. CR form 2 is the form of application to be used when applying for registration as an auditor or liquidator or as an auditor and a liquidator under CA s-sec. 17(2).

335. The form of application is required to include the following information:

(a) the applicant’s personal details;

(b) details of the applicant’s previous employment and business activities and any previous registration as an auditor and/or a liquidator;

(d) details of the name and place of business of the applicant’s proposed business; and

(e) the names, addresses and occupations of two referees.

336. CR form 2 is based generally on the forms presently used by the CAB of the ACT for the registration of auditors and liquidators. The existing forms have, however, been significantly modified, for the purpose of the CR, to take account of the new requirements in the CA relating to the qualifications and experience of auditors and liquidators. In particular:

(a) CR form 2 para. 7 requires specified information as to whether the applicant is or has been prohibited, by virtue of the provisions of CA s.227 and s-sec. 562(2) from acting as a director, or being concerned in the management of a corporation. This information is required because of the new provisions in CA s-secs. 18(3) and 20(4); and

(b) CR form 2 para. 8 requires applicants for registration as auditors or liquidators to state whether they have at any time been convicted in Australia or elsewhere of an offence which is not a road traffic offence. This is a new requirement which has been included in order to assist the NCSC in making a decision as to whether the applicant is a “fit and proper person” to be registered (see CA s-secs. 18(1) and 20(1)).

(c) CR form 2 para. 11 requires details to be given of any instances in which the applicant has been removed, or resigned from office as an auditor or a liquidator. This is also a new requirement which has been included for the same reasons given in sub-para 335(b) above.

Companies Form 3: Application for registration as a liquidator of a specified corporation

337. CR form 3 is the form of application to be used when applying for registration as a liquidator of a specified corporation under CA s-sec. 17(2).

338. This form of application requires information to be specified which is similar to that required by CR form 2 (Application for registration*as an auditor *and a liquidator).

339. CR form 3 is new. The present practice seems to be to use the existing forms for the registration of liquidators when applying for registration, pursuant to ICAC CA s-sec. 9(5), as a liquidator of a specified corporation. CR form 3 has been drafted with a view to the fact that CA s-sec. 20(3), which is the comparable provision to ICAC CA s-sec. 9(5), differs from that provision by:

(a) not requiring that the applicant be qualified to be appointed as a registered company auditor;

(b) imposing a “fit and proper person test”;

(d) omitting the requirement in ICAC CA para 9(5)(b) that the nature of the business and the interests of the creditors and members require the appointment of a specified person.

340. The information required to be disclosed for the purposes of CR form 3 is similar to that required for the purposes of CR form 2 except that provision has been made for the fact that CR form 3 is an application form for registration as a liquidator of a specified corporation.

Companies Form 4: Certificate of registration as an auditor

341. CR form 4 sets out the form of the certificate which is required to be issued under CA s-sec. 18(5), when the NCSC grants an application by a person for registration as an auditor.

342. CR form 4 is based generally on the certificate given to registered auditors by the CAB of the ACT. This form has, however, been modified so that the NCSC may, in issuing the certificate, specify a date for the purposes of CA s-sec. 26(2).

Companies Form 5: Certificate of registration as a liquidator

343. CR form 5 sets out the form of the certificate which is required to be issued under CA s-sec. 20(6), when the NCSC grants an application by a person for registration as a liquidator and that person has complied with the requirements of CA s.22 (Security to be given by liquidators).

344. CR form 5 is based generally on the certificate given to registered liquidators by the CAB of the ACT. This form has, however, been modified so that the NCSC may, in issuing the certificate, specify a date for the purposes of CA s-sec. 26(2).

Companies Form 6: Certificate of registration as a liquidator of a specified corporation

345. CR form 6 sets out the form of the certificate which is required to be issued, under the new requirements of CA s-sec. 20(6), when the NCSC grants an application by a person for registration as a liquidator of a specified corporation, and that person has complied with the requirements of CA s.22 (Security to be given by liquidators).

Companies Form 7: Certificate of registration as an official liquidator

346. CR form 7 (which is new) sets out the form of the certificate which is required to be issued under CA s-sec. 21(2) when the NCSC registers an official liquidator.

Companies Form 8: Notice of application for discharge of security

347. CR form 8 sets out the form of notice that is required to be published in a newspaper generally circulating in the Territory, before the local authority will be entitled to discharge the security, return money or release sureties pursuant to CR reg. 25. “Local authority” is defined in CR reg. 2 to mean the Corporate Affairs Commission for the Territory.

348. This form of notice requires particulars in writing of any claim in respect of the security sought to be discharged, and the specification of a date by which such claims should be made.

349. CR form 8 is based generally on SIR form 8.

Companies Form 9: Particulars of cessation or change relating to a person registered as *an auditor *and* a liquidator (not being a liquidator of a specified corporation)

350. CR form 9 sets out the form of the statement in writing that is required to be lodged with the NCSC pursuant to the new requirements of either CA s-secs. 25(1) or 25(2).

351. The statement is required to be lodged with the NCSC in the following circumstances:

(a) where a registered company auditor or a registered company liquidator ceases to practise; or

(b) where a change occurs in certain particulars which are required to be entered in the Register of Auditors or the Register of Liquidators (eg change of name, change of principal place of business, change of name of firm - see CA paras. 23(1)(a), (c) and (d), and also CA sub-paras. 24(1)(a)(i), (iii) or (iv)).

Companies Form 10: Particulars of cessation or change relating to a liquidator of a specified corporation

352. CR form 10 sets out the form of the statement in writing that is required to be lodged with the NCSC pursuant to the new requirements of CA s-sec. 25(3).

353. Such a statement is required to be lodged with the NCSC in the following circumstances:

(1) where a registered liquidator of a specified corporation ceases to act as liquidator of that corporation; or

(2) where a change occurs in certain particulars which are required to be entered in the Register of Liquidators in relation to the liquidator of a specified corporation (eg change of name of the liquidator, change of name of the corporation, change of principal place of business, change of name and address of firm - see CA para. 24(1)(b)).

Companies Form 11: Notice of a prohibition under section 227 or under 562 or a corresponding provision of the law of a State or Territory

354. CR form 11 sets out the form of the statement in writing that is required to be lodged with the NCSC pursuant to the new requirements of CA s-sec. 25(4).

355. Such a statement is required to give notice and set out specified particulars, when a person registered as an auditor, liquidator or liquidator of a specified corporation:

(a) becomes an insolvent under administration;

(b) is convicted of an offence and thereby becomes subject to the prohibition in CA s-sec. 227(2); or

(c) is subject to an order made under CA s-sec. 562(2) (or a corresponding provision of the law of a State or another Territory).

356. Once the NCSC has the information set out in CR form 11, it may make an application to the relevant Companies Auditors and Liquidators Disciplinary Board for the cancellation or suspension of the auditor, liquidator or liquidator of a specified corporation (see CA s-secs. 27(4) to (6)).

Companies Form 12: Triennial statement lodged by auditor *and* liquidator in respect of the period ….. 19.. to ….. 19..

357. CR form 12 sets out the form of the triennial statement that is required to be lodged with the NCSC pursuant to CA s-secs. 26(2) or 26(3).

358. The information which is required to be provided in this statement includes much of the information required by CR form 2 (Application for registration*as an auditor*and a liquidator). In addition, it is necessary to state:

(i) whether the person has ceased to practise as an auditor/liquidator; and

(ii) whether the person is still conducting audits or liquidations.

359. The requirement for auditors and liquidators to lodge triennial statements (CA s.26) replaces the requirement in ICAC CA s-secs. 9(6) to (8) that the registration of auditors and liquidators be renewed each year. The CA contains no requirements as to renewal of registration.

Companies Form 13: Statement by liquidator of specified corporation for the period ….. 19.. to ….. 19..

360. CR form 13 sets out the form of the statement is required to be lodged by the liquidator of a specified corporation pursuant to the new requirements of CA s-sec. 26(5).

361. The information which is required to be provided in this statement includes much of the information required by CR form 3 (Application for registration as a liquidator of a specified corporation). In addition, it is necessary to state:

(1) the names and addresses of any other corporations of which he is the liquidator; and

(2) whether he has ceased to act as liquidator in the winding up of the specified corporation.

Companies Form 14: Certificate that no company was registered under the name …

362. CR form 14 sets out the form of the certificate that may be issued by the NCSC, pursuant to the new requirements of CA para. 31(7)(a), to the effect that at a certain date or during a specified period, no company was registered by a name specified in the certificate.

Companies Form 13: Supplementary document

363. CR form 15 sets out the form of the supplementary document which is required to be lodged when the NCSC, pursuant to CA para. 31(8)(h), requests that such a document be lodged. CR form 15 is based on VIC CR form 3A.

Companies Form 16: Certificate of incorporation of public company

364. CR form 16 sets out the form of the certificate of incorporation of a public company which is required to be issued by the NCSC pursuant to CA s-sec. 35(2). CR form 16 is based on VIC CR form 5.

Companies Form 17: Certificate of incorporation of proprietary company

365. CR form 17 sets out the form of the certificate of incorporation of a proprietary company, that is required to be issued by the NCSC pursuant to CA s-sec. 35(2). CR form 17 is based on VIC CR form 6.

Companies Form 18: Application for (*extension of) reservation of name for *intended company or *intended foreign company

366. CR form 18 sets out the form of the application to be used when applying for:

(a) the reservation of a name of an intended company (pursuant to CA s-sec. 40(1)); or

(b) the reservation of a name for an intended foreign company (pursuant to CA s-sec. 46(1)).

367. CR form 18 is based on VIC CR form 10, except that the latter form can also be used as an application for the reservation of a name:

(a) to which a company proposes to change its name;

(b) by which a foreign company proposes to be registered; or

Companies Form 19: *Application for (*extension of) reservation of *proposed new name /*new name of *company/*registered foreign company

*Application for (*extension of) reservation of name by which *recognized company/*foreign company intends to become registered

368. CR form 19 sets out the form of application to be used when applying for the reservation of:

(a) a proposed new name by a company (see CA s-sec. 43(D);

(b) a proposed new name by a registered foreign company (see CA s-sec. 49(1));

(c) the name by which a recognized company proposes to become registered upon transfer of its incorporation (see CA s-sec. 52(1));

(d) the name by which a foreign company proposes to become registered (see CA s-sec. 46(2)); or

(e) the name by which the foreign company intends to become registered upon transfer of its incorporation (see CA s-sec. 55(1)).

369. CR form 19 is based on VIC CR form 10, except that CR form 19 may also be used by recognized and foreign companies to make application for the reservation of names by which they propose to become registered on transfer of their incorporation.

Companies Form 20: Notice by company or registered foreign company for the purposes of section 59 or 61

370. CR form 20 sets out the form of notice that is required to be given in the following circumstances:

(a) when a company or registered foreign company proposes to have its name registered in a participating State or Territory (see CA s.59); or

(b) when a company or registered foreign company proposes that its name should no longer be registered in a participating State or Territory (see CA s.61).

371. CR form 20 is new and has been included to take account of the new procedures in the CA for the reservation of names in a participating State or Territory.

Companies Form 21: Application by a company to change to a different status

372. CR form 21 sets out the form of application to be used by a company when applying to the NCSC for a change in status under CA s-sec. 69(2). CR form 21 is based on VIC CR form 10A although the layout is slightly different.

Companies Form 22: Certificate of incorporation on change of status

373. CR form 22 sets out the form of the certificate of incorporation on change of status that is required to be issued by the NCSC pursuant to CA s-sec. 69(2). CR form 22 is based on VIC CR form 10B.

Companies Form 23: Assent by members to application by a limited company to convert to an unlimited company

374. CR form 23 sets out the form of the members’ assent which is required, pursuant to CA para. 69(4)(c), when an application is made by a limited company to convert to an unlimited company.

375. The form of the assent is required to be subscribed by or on behalf of all the members of the company, and will be required to include a statement in writing by a director or secretary of the company verifying specified matters. CR form 23 is based on VIC CR form 10C.

Companies Form 24: Notice of resolution

376. CR form 24 sets out the form of the copy of the resolution that is required to be lodged with the NCSC pursuant to CA s-secs. 70(1), 70(2), 73(12), 73(13), 123(7), 251(1), and 392(2). CR form 24 is based on VIC CR form 7.

Companies Form 25: Certificate of incorporation on conversion

377. CR form 25 sets out the form of the certificate of incorporation that is required, pursuant to CA s-sec. 70(3), to be issued by the NCSC on the conversion of:

(a) a public company to a proprietary company; or

(b) a proprietary company to a public company.

CR form 25 is based on VIC CR forms 12 and 13.

Companies Form 26: Certificate of registration of document affecting memorandum of association

378. CR form 26 sets out the form of the certificate that is required to be issued by the NCSC pursuant to CA s-sec. 72(6) when certifying the registration of a court order, a resolution or other document affecting the memorandum of a company.

379. CR form 26 is based to some extent on VIC CR form 8 except that the new form can also be used to certify that documents other than orders of the Supreme Court have been registered by the NCSC.

Companies Form 27: Certificate of incorporation issued on change of name of company

380. CR form 27 sets out the form of the certificate of incorporation which is required to be issued by the NCSC pursuant to CA s-sec. 72(9). CR form 27 is based on VIC CR form 9.

Companies Form 28: Application for certificate authorising application for transfer of incorporation

381. CR form 28 sets out the form of application to be used by a company when applying, pursuant to CA s-sec. 83(1), to the NCSC for a certificate authorising the company to apply for registration as a company under the corresponding law of a participating State or Territory.

382. The form of application is required to include the information as to which the Commission must be satisfied, under CA s.83, before it can issue the relevant certificate (eg details of special resolution passed, notice given to creditors, reservation of name in participating State, and the financial position of the company etc.).

383. CR forms 28 to 34 are all new and have been prescribed for the purposes of certain provisions in CA Division 4 of Part III. This Division contains new procedures which will enable a company incorporated in one jurisdiction to transfer its domicile to another jurisdiction. The provisions cover both “transfers in” and “transfers out” of jurisdictions covered by the Formal Agreement.

Companies Form 29: Declaration by directors of a company desiring transfer of incorporation

384. CR form 29 sets out the form of declaration of solvency that is required to be made by the directors or a majority of the directors of the company seeking to transfer its incorporation (see CA sub-para. 83(2)(b)(i)).

385. This form of declaration, which must accompany any application made under CA s-sec. 83(1), is required to state that the directors, at a directors’ meeting, have formed the opinion that the company would be able to pay its debts as they fell due.

Companies Form 30: Report as to affairs

386. CR form 30 sets out the form of the report as to affairs which is required to be prepared pursuant to:

(a) CA sub-para. 83(2)(b)(ii);

(b) CA para. 328(1)(b);

387. An application made under CA s-sec. 83(1) must be accompanied by this report as to affairs showing the assets and liabilities of the company made up to the latest practicable date before the making of the application.

388. CR form 30 is based on VIC CR form 56.

Companies Form 31: Certificate authorizing application by company for transfer of incorporation

389. CR form 31 sets out the form of the certificate which is required to be issued by the NCSC (under CA s-sec. 83(3)), when authorizing an application by a company for transfer of incorporation.

390. Where the certificate is issued subject to certain conditions, the NCSC is required to set out such conditions in a schedule to the form (CA s-sec. 83(4)).

Companies Form 32: Application by recognized company for registration as a company

391. CR form 32 sets out the form of application to be used by a recognized company when applying for registration as a company under CA s. 84.

392. This form of application is required to provide information concerning:

(a) details of incorporation;

(b) the address of the registered office of the corporation in its place of incorporation;

(d) details of whether the corporation has established a place of business or commenced to carry on business in the State or Territory in which registration is sought, and particulars of that business; and

(e) the financial position of the company.

Companies Form 33: Application by foreign company for registration as a company

393. CR form 33 sets out the form of application to be used by a foreign company when applying for registration as a company under CA s. 85.

394. This form of application is required to provide certain information, for example:

(a) details of incorporation;

(b) the address of the registered office in the place of incorporation;

(c) whether the corporation is authorized by the law of its place of incorporation to apply for the transfer of its incorporation;

(d) whether the corporation has established a place of business or commenced to carry on business in the State or Territory in which registration is sought, and particulars of that business;

(e) whether the required percentage of members of the corporation have consented to the transfer of incorporation (if applicable);

(f) details of share capital (if applicable); and

(g) the financial position of the company.

395. In addition, is necessary to attach to this form of application documents specified by CA s-sec. 85(4).

Companies Form 34: Certificate of registration on transfer of incorporation

396. CR form 34 sets out the form of certificate which is required to be issued by the NCSC (under CA s-sec. 86(5)) when granting an application by a recognized company or by a foreign company to be registered as a company.

Companies Form 35: Return of allotment of shares

397. CR form 35 sets out the form of return which is required to be lodged with the NCSC within one month of the allotment of shares by a company.

398. This return is required to contain the information specified in CA s-sec. 113(1). Where the shares are allotted for consideration other than cash pursuant to a contract in writing, the company is required to lodge with this return the contract or a certified copy of the contract. CR form 35 is based on VIC CR form 17.

Companies Form 36: Statement containing particulars of shares allotted otherwise than for cash

399. CR form 36 sets out the form of the statement that is required (pursuant to CA s-sec. 113(5)) to accompany the return of allotment of shares (form 35), where shares are allotted otherwise than for cash and the allotment is made in the circumstances set out in CA s-sec. 113(5). CR form 36 is based on VIC CR form 18.

Companies Form 37: Statement of payment in relation to subscription for shares

400. CR form 37 sets out the form of statement that is required by CA para. 117(1)(c) to be lodged with the NCSC.

401. This statement is required to be made when a company makes a payment to a person in consideration of his subscribing or procuring subscriptions for shares, and where such payment has not previously been disclosed in the prospectus.

402. CR form 37 is based on VIC CR form 19, except that the latter form has been modified for the purposes of the CR to take account of the new provisions in CA s.117 ie:

(a) CA s.117 is expressed in broader terms than its ICAC CA equivalent (s.58); and

(b) CA s.117 has a new reference to payments which are “not prohibited by the memorandum or articles” in recognition of the fact that there is now power in the Third Schedule to make the payments referred to in the Third Schedule of the CA.

Companies Form 38: Notice of redemption of redeemable preference shares

403. CR form 38 sets out the form of notice that is required to be lodged with the NCSC (pursuant to CA s-sec. 120(8)) when a company redeems any redeemable preference shares. CR form 38 is based on VIC CR form 20.

Companies Form 39: Certificate of registration of special resolution and court order in relation to reduction of share capital

404. CR form 39 sets out the form of certificate that is required to be issued by the NCSC pursuant to CA s-sec. 123(8). This certificate is required to state that a certified copy of the resolution and an office copy of the court order relating to a reduction of share capital, have been registered by the NCSC. CR form 39 is based on VIC CR form 22.

Companies Form 40: Statement of special rights carried by shares

405. CR form 40 is prescribed for the purposes of the new provisions in CA s-sec. 124(1) which require a statement to be lodged with the NCSC when a company allots shares carrying rights not provided for in the memorandum or articles of the company or in a resolution or document to which CA s. 251 applies. The statement is required to show the number of shares allotted, their nominal value, the names of the holders of such shares, the number and class of shares held and to describe the special rights attaching to such shares.

Companies Form 41: Return showing division or conversion of shares into classes

406. CR form 41 sets out the form of return that is required to be lodged with the NCSC pursuant to CA s-sec. 124(2) where shares in a company are divided, or converted into shares of another class. CR form 41 is based on VIC CR form 22A.

Companies Form 42: Notice of interests of substantial shareholder

407. CR form 42 sets out the information that a person who is a substantial shareholder is required to give to the company concerned within 2 business days of acquiring the relevant interest in shares of the company (see CA s-sec. 137(1)).

408. The information required by CR form 42 is as follows:

(a) the name and address of the substantial shareholder, those of his associates who hold a relevant interest in the shares at issue and of the persons who are, or who are entitled to be registered as the holder of the shares in which the relevant interest is held;

(b) particulars of the voting shares in which each relevant interest is held;

(d) particulars of the nature of the current relevant interest.

409. The meaning of the expression “a relevant interest in shares” is set out in CA s. 8. CA s. 136 sets out when, for the purposes of CA Part IV, Division 4, a person is to be taken to be a substantial shareholder.

410. CR form 42 is based generally on SIR form 18 except that the latter form also requires the specified information to be stated in respect of a disposal of, or a change in, a relevant interest. These matters are dealt with separately in the CR (see CR forms 43 and 44).

Companies Form 43: Change in interests of substantial shareholder

411. When there is a change in the relevant interests of a substantial shareholder, he is required to lodge with the company information in accordance with the requirements of CR form 43. These requirements are similar to those of CR form 42, except that, for the purposes of CA s-sec. 138(1), additional details must be given including:

(a) particulars relating to the change in the relevant interest including details of the contract etc whereby the change occurred and of the valuable consideration given in relation to the change;

(b) the number and description of voting shares in which relevant interest is held after the change; and

(c) details of the person who will become entitled to be registered as the holder of the shares after the change in the relevant interest and also the name and address of the holder.

412. CR form 43 is based generally on SIR form 18.

Companies Form 44: Notice of person ceasing to be a substantial shareholder

413. CA s-sec. 139(1) requires a person who ceases to be a substantial shareholder to notify the company concerned of specified details. CR form 44 sets out the information that is required to be given; this information is similar to that required in CR form 43. CR form 44 is based generally on SIR form 18.

Companies Form 45: Notice of appointment of successor in place of trustee for holders of debentures

414. CR form 45 sets out the form of notice that is required to be lodged, pursuant to CA s-sec. 153(6), when a successor is., appointed to be trustee in place of the previous trustee for holders of debentures. CR form 45 is based on VIC CR form 23A.

Companies Form 46: Return by management company

415. CR form 46 sets out the form of return that is required (pursuant to CA s-sec. 173(1)) to be lodged by a management company within 2 months of the end of each financial year applicable to a deed, or within 2 months of such deed ceasing to be in force.

416. The return is required to contain a list of prescribed interest holders and other specified particulars. In addition, the return must be accompanied by a copy of the statement of accounts and auditor’s report prepared in accordance with CR reg. 57.

417. CR form 46 is based on VIC CR form 25 except that the management company is no longer required to give details of property in which the holders of the prescribed interests have a specific interest. This requirement has been omitted on the basis that this information is required to be given pursuant to the provisions of CR Schedule 6 “Statement Required Pursuant To Section 170”.

Companies Form 47: Notice of particulars of charge

418. CR form 47 sets out the form of notice that is required to be lodged pursuant to CA paras. 201(1)(a) and 201(5)(a), and CA sub-para. 202(1)(a)(i).

419. This notice is required to be lodged:

(i) by a company within 45 days of the creation of a charge;

(ii) by a foreign company (intending to transfer its incorporation or register as a foreign company) in respect of property of the company which is subject to a charge; or

(iii) by a company which acquires property subject to an existing charge.

420. CR form 47 is based generally on VIC CR form 26. The latter form has, however, been modified to take account of the new requirements in CA ss. 201 and 202. For example, CA para. 201(1)(b) requires a verified copy of a resolution authorizing the issue of a series of debentures to be lodged together with a verified copy of the first debenture issued in the series. It is a result of these requirements that para. 2 of CR form 47 has been included. CR form 48 sets out the form of verification that is required.

Companies Form 48: Verification of resolution authorizing issue of debentures

421. CR form 48 sets out the form of verification which is required to be made pursuant to CA paras. 201(1)(b), 201(2)(b), 201(5)(b) and 201(5)(d), and CA sub-para. 202(1)(a)(ii). These provisions require a written verification of the following documents relating to the issue of debentures to be lodged with the NCSC:

(a) a copy of the resolution(s) authorizing the original issue of the debentures;

(b) a copy of any resolution(s) authorizing a subsequent issue of debentures in the series; and

422. CR form 48 is required to be lodged with the NCSC together with:

(a) a notice of particulars of the charge (CR form 47);

(b) a copy of the resolution(s); and

Companies Form 49: Verification of copy of instrument creating or evidencing a charge

423. CR form 49 sets out the form of verification that is required to be made pursuant to CA paras. 201(1)(c) and 201(5)(c) and CA sub-para. 202(1)(a)(iii).

424. These provisions require copies of instrument(s) creating or evidencing a charge which are lodged with the NCSC to be supported by a written verification of the copy, and, if applicable, verification of the execution of the instrument(s).

425. Where a copy of an instrument creating or evidencing a charge is lodged with CR form 47 (notice of particulars of charge), it is also necessary to lodge CR form 49 verifying the copy of the instrument, and the execution of the instrument.

Companies Form 50: Notice of assignment of charge

426. CR form 50 sets out the form of notice that is required to be lodged by the assignee of a registrable charge over the property of a company pursuant to the new requirements of CA s-sec. 206(1). The notice is required to contain specified particulars about the charge which are sufficient to enable the charge to be identified.

Companies Form 51: Notice of variation in terms of charge

427. CR form 51 sets out the form of notice that is required to be lodged, pursuant to the new requirements of CA s-sec. 206(2), when a variation in the terms of a registered charge is effected. CR form 51 is required to set out particulars of the charge and of any variation in the terms of the charge having the effect of:

(a) increasing the amount of the debt or increasing the liabilities (whether present or prospective) secured by the charge; or

(b) prohibiting or restricting the creation of subsequent charges on the property.

Companies Form 52: Memorandum of payment or discharge of debt or liability

*Memorandum of release of property or part of property from charge

428. CR form 52 sets out the form of memorandum which is required to be made pursuant to CA s-sec 207(1). Where the liability (which is secured by a charge) has been paid or discharged in whole or in part, or where the property or part of the property charged has been released from the charge, the holder of the charge is required to give the company a memorandum in accordance with CR form 52. CR form 52 is based on VIC CR forms 34 and 35.

Companies Form 53: Certificate setting out particulars of a charge

429. CR form 53 sets out the form of the certificate that may be issued by the NCSC under CA s-sec. 210(1) which is a new provision. The certificate is required to set out the time and date on which the notice in respect of a charge was lodged with the NCSC, and the number which was allocated to it. The certificate is also required to have annexed to it the particulars of the charge which are entered in the Register of Company Charges and, if the word “provisional” appears in the Register, the certificate must state so.

Companies Form 54: Certificate of entry of particulars of a charge

430. CR form 54 sets out the form of certificate that may be issued by the NCSC under CA s-sec. 210(3). The certificate

is required to certify that a notice in respect of a charge was lodged at a certain time and date. The certificate must also state that particulars of the charge were entered in the Register of Company Charges in accordance with the registration requirements of CA Division 9 of Part IV, and the number which was allocated to the charge. CR form 54 is based on VIC CR form 33.

Companies Form 55: Notice in relation to registered office

431. CR form 55 sets out the form of notice a company, proposed company, recognized company or corporation may be required to lodge with the NCSC in accordance with the provisions of CA paras 84(2)(ia) and 85(4)(fa) and s-secs. 217(1), (2), (3) and (4).

432. It is necessary to lodge CR form 55 in any of the following circumstances:

(a) when notifying the NCSC of the address of the proposed registered office of a proposed company, recognized company, or corporation, or a change in the situation of the registered office of a company; and

(b) when notifying the NCSC of the hours during which a proposed registered office of a proposed corporation is to be open to the public, or of a change in the hours during which the registered office of a company is open to the public.

433. CR form 114, which is in similar terms to CR form 55, is of application to proposed registered foreign companies and registered foreign companies.

Companies Form 56: Consent to act as director

434. CR form 56 sets out the form of consent to act as director that is required to be lodged under CA s-sec. 220(1). CR form 56 is based on VIC CR form 38.

Companies Form 57: Undertaking by director to take and pay for qualification shares

435. CR form 57 sets out the form of undertaking that a director is required to lodge with the NCSC under CA para. 220(1)(b). CR form 57 is based on VIC CR form 39.

Companies Form 58: Statement by director of registration of qualification shares

436. CR form 58 sets out the form of statement relating to the registration of qualification shares that is required to be lodged with the NCSC pursuant to CA para. 220(1)(c). CR form 58 is based on VIC CR form 40.

Companies Form 59: Statement by director of entitlement to qualification shares

437. CR form 59 sets out the form of statement relating to a director’s entitlement to qualification shares that a director is required to lodge under CA para. 220(1)(d).

438. This form is to be used in the case of a company formed by way of reconstruction of another corporation or group of corporations.

439. CR form 59 is based on VIC CR form 41.

Companies Form 60: List of persons who have consented to be directors

440. CR form 60 sets out the form of the list that is required to be lodged under CA s-sec. 220(4) by a person desiring the incorporation of a company.

441. The list is required to include particulars of the persons who have consented to be directors of the company.

442. CR form 60 is based on VIC CR form 42.

Companies Form 61: Particulars and changes of particulars in register of directors, principal executive officer and secretaries

443. CR form 61 sets out the form of the return of particulars and changes of particulars in the register of directors, principal executive officer and secretaries.

444. This form is required to be lodged with the NCSC in the circumstances specified in CA s-sec. 238(7).

445. CR form 61 is based on VIC CR form 43 except that CR form 61 requires particulars to be given of the principal executive officer of the company instead of the managers of the company (as required by VIC CR form 43).

Companies Form 62: Notice as to the holding of office in a company

446. CR form 62 sets out the form of notice that is required to be lodged with the NCSC pursuant to the new requirements of CA s-sec. 238(9). When so requested by the NCSC, a person will be required to lodge this notice stating whether he is a director, principal executive officer or secretary of the company, or whether, and on what date, he ceased to hold any of these offices.

Companies Form 63: Certificate as to holding of the office of director, principal executive officer or secretary

447. CR form 63 sets out the form of the certificate that will be issued by the NCSC under CA s-sec. 238(10).

448. The certificate is required to include particulars relating to the holding of the office of director, principal executive officer or secretary of a company by a certain person. Such certificate is to be received as prima facie evidence of the facts stated in the certificate.

449. CR form 63 is based on VIC CR form 44.

Companies Form 64: Statutory report of …… Limited

450. CR form 64 sets out the form of the statutory report and the auditors report, referred to in CA s-secs. 239(3) and (4). CA s-sec. 239(3) sets out the particulars required to be contained in the statutory report, and CA s-sec. 239(4) requires the auditors (if any) to report on it insofar as it relates to shares allotted by the company and to the cash received in respect of them, and to the receipts and payments of the company on capital account.

451. CR form 64 is based on VIC CR Form 45.

Companies Form 65: Statement concerning copy of minute by representative of holding company relating to proceedings of subsidiary company

452. CR form 65 sets out the form of a statement, which is required by CR reg. 56 to set out or annex a copy of a minute lodged with the NCSC pursuant to CA s-sec. 244(7).

453. CR form 65 is based on VIC CR Form 46.

Companies Form 66: Annual return of a company having share capital

454. CR form 66 sets out the form of annual return for a company having a share capital which is required to be lodged with the NCSC under CA s-sec. 263(1).

455. The return is required to include details concerning:

(a) particulars relating to the company;

(b) the accounts of the company;

(d) summary of share capital;

(e) list of shareholders;

(f) particulars of the directors, principal executive officer, secretaries and auditors of the company; and

(g) particulars as to forfeited shares in no liability companies.

456. CR form 66 sets out:

(a) a certificate to be given by all companies (based on a similar certificate in VIC CA Eigth Schedule);

(b) a statement to be given by the auditor of an exempt proprietary company for the purposes of CA s-sec. 264(1) (CA s-sec 264(1) is based on ICAC CAs s. 159A);

(c) a certificate in respect of a company, the accounts or group accounts of which, by reason of the circumstances referred to in sub-sections 279(1) and (2) are not audited (CA s. 279 is based on ICAC CAs s. 165B); and

(d) a certificate for inclusion in a public company’s annual return that does not include a list of members (based on VIC CR form 50).

457. CR form 66 is based on VIC CA Eighth Schedule, however, CR form 66 requires information to be given as to the period to which the annual return relates. This information is required in order to assist the NCSC to ascertain whether or not the company lodging the return has held its annual general meeting within the statutory period (see CA s. 263) (CR form 66, para 1).

Companies Form 67: Annual return of a company not having share capital

458. CR form 67 sets out the form of the annual return of a company not having share capital, which is required to be lodged with the NCSC under CA s-sec. 263(1).

459. The return is required to contain details concerning:

(a) the period to which the annual return relates;

(b) particulars relating to the company;

(d) particulars of indebtedness;

(e) a list of members of the company; and

(f) a list of directors, principal executive officer, secretaries and auditors of the company.

460. The return is required to have annexed to it a certified 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 all documents required by law to be annexed to the accounts.

461. A certificate relating to unclaimed moneys and a certificate for inclusion in a public company’s annual return that does not include a list of members (based on VIC CR form 50) are also included as part of the annual return.

462. CR form 67 is based on VIC CR form 49, except that:

(a) CR form 67 requires new information to be given as to the period to which the annual return relates (CR form 67 para. 1);

(b) CR form 67 requires details concerning the nature of the principal business carried on by the company (CR form 67 para. 2);

(c) provision is made in CR form 67 for a statement as to whether the accounts of the company were adopted by the annual general meeting (CR form 67, para. 3), and

(d) a list of members forms part of the return (CR form 67, para. 5).

Companies Form 68: Notice of place at which statements and records relating to accounting records outside Australia are kept

463. CR form 68 sets out the form of the notice of the place in Australia where statements and records are kept pursuant to CA s-sec. 267(5). This notice, which is required to be be lodged with the NC.SC under CA s-sec. 267(6), is based on VIC CR form 50A.

Companies Form 69: Return of members of firm of auditors

464. CR form 69 sets out the form of the return of members of a firm of auditors which is required to be lodged under CA para. 277(2)(e). This form is based on VIC CR form 50B.

Companies Form 70: Notice of resignation or removal of auditor

465. CR form 70 sets out the form of a notice of the resignation or removal of an auditor which is required to be lodged under CA s. 282. CR form 70 is based on VIC CR form 50C.

Companies Form 71: Notice in respect of an investigation concerning a corporation

466. CR form 71 sets out the form of a notice under CA s-sec. 295(1) which may be used to require an officer of a corporation

(the affairs of which are being investigated) to do certain things. CR form 71 is based on VIC CR form 51.

Companies Form 72: Notice requiring the production of books relevant to the affairs of a corporation

467. An inspector is entitled, by the issue of a notice in accordance with CR form 72, to require a person to produce books which may be relevant to the affairs of a company being investigated.

468. CR form 72 is prescribed for the purposes of the new provisions of CA s-sec. 295(3). This provision, which empowers inspectors to require persons other than officers of the corporation being investigated to produce books, is designed to ensure that access can be had to books (eg bank records) which are not necessarily those of the corporation.

Companies Form 73: Certificate by an inspector carrying out an investigation

469. CR form 73 sets out the form of a certificate which, pursuant to CA s-sec. 295(5), is required to be furnished by an inspector to an officer of a corporation related to the corporation which is being investigated, before the inspector will be permitted to exercise his powers in relation to that officer. This form is based on VIC CR form 51A.

Companies Form 74: Notice to dissenting shareholder

470. Where a scheme or contract (other than a takeover scheme) involving a transfer of shares to a person (the transferee) has been approved by holders of 90% in nominal value of the shares involved, the transferee may give notice in accordance with CR form 74 to a dissenting shareholder that he desires to acquire the shares of that shareholder.

471. CR form 74, which is prescribed for the purposes of CA s-sec. 318(1), is based on VIC CR form 52.

Companies Form 75: Notice to remaining shareholder

472. Where, pursuant to a scheme or contract (other than a takeover scheme), a person (the transferee) becomes entitled to at least 90% of the shares in a particular class, then, he may give notice in accordance with CR form 75, to the remaining shareholders in that class that he desires to acquire their shares.

473. CR form 75, which is prescribed for the purposes of CA para. 318(7)(a), is based on VIC CR form 53.

Companies Form 76: Account of receipts and payments by *receiver/*receiver and manager

474. CR form 76 sets out the form of an account which a receiver (or a receiver and manager) is required to lodge with the NCSC under CA s-sec. 330(1).

475. This form is based on VIC CR form 58, except that the information in CR form 76 is not required to be verified by statutory declaration.

Companies Form 77: Statement verifying report

476. CR form 77 sets out the form of a statement verifying a report submitted under CA s-secs. 329(1), 375(1) and (2). This form is based on VIC CR form 57.

Companies Form 78: Notice of appointment of *receiver/*receiver and manager of … Limited

477. CR form 78 sets out the form of a notice which is required to be lodged with the NCSC under CA s-sec. 326(1). CR form 78 is based on VIC CR form 54.

Companies Form 79: Notice of address of office of *receiver/*receiver and manager

478. CR form 79 sets out the form of a notice which is required to be lodged with the NCSC by a receiver or a receiver and manager pursuant to the new requirements of CA s-sec. 326(1A).

Companies Form 80: Notice of change in situation of office of *receiver/*receiver and manager

479. CR form 80 sets out the form of a notice which is required to be lodged with the NCSC by a receiver or a receiver and manager pursuant to the new requirements of CA s-sec. 326(1A).

Companies Form 81: Notice by *receiver/*receiver and manager ceasing to act

480. CR form 81 sets out the form of notice which is required to be lodged with the NCSC by a receiver or a receiver and manager who ceases to act as such.

481. CR form 81, which is prescribed for the purposes of CA s-sec. 326(2), is based on VIC CR form 55, except that CR form 81 also requires details regarding the appointment of the receiver or receiver and manager.

Companies Form 82: Notice of meeting of creditors to consider placing company under official management

482. CR form 82 sets out the form of a notice of a meeting of creditors which is required to be given under CA para. 335(9)(a). CR form 82 is based on VIC CR form 59.

Companies Form 83: Summary of affairs

483. CR form 83 sets out the form of a summary of the affairs of a company that is required to be attached to a notice of a meeting of creditors under CA paras. 335(10)(a) and 398(2)(b)(i). The summary is required to include details concerning:

(a) assets not specifically charged;

(b) assets subject to specific charges;

(d) amounts owing and secured by debenture or floating charge over the company’s assets;

(e) preferential and unsecured creditors;

(f) contingent assets and liabilities; and

(g) the company’s share capital.

CR form 83 is based on VIC CR form 59A except that a note has been added to make it clear that, where the form is completed for the purposes of CA sub-para 398(2)(b)(i), creditors should not regard it as the report required by CA para 398(5)(a).

Companies Form 84. Notice of resolution of creditors placing company under official management

484. CR form 84 sets out the form of a notice of the passing of a special resolution under CA s-sec. 338(1) which is required to be lodged with the NCSC under CA sub-para. 338(2)(a)(i). CR form 84 is based on VIC CR form 60.

Companies Form 85: Notice to creditors and members of special resolution placing company under official management and of rights under section 353

485. CR form 85 sets out the form of a notice to creditors and members of the passing of a special resolution under CA s-sec. 338(1) and of their rights under CA s.353. This notice, which is required to be given under CA sub-para. 338(2)(a)(ii), is based on VIC CR form 60A.

Companies Form 86: Notice of order terminating appointment of official manager and appointing registered company auditor as official manager

486. CR form 86 sets out the form of a notice of the making of an order by the court pursuant to CA s-sec. 338(4). CR form 86 is based on VIC CR form 60B.

Companies Form 87: Notice of appointment and address of office of *official manager/*deputy official manager

487. CR form 87 sets out the form of a notice of the appointment and of the address of the office of an official manager or a deputy official manager. This form, which is required to be lodged with the NCSC under CA s-secs. 340(1) and 357(4), is based on VIC CR form 60C.

Companies Form 88: Notice of change in situation of office of *official manager/*deputy official manager

488. CR form 88 sets out the form of a notice of a change in the situation of the office of an official manager or deputy official manager. This form, which is required to be lodged with the NCSC under CA s-secs. 340(1) and 357(4), is based on VIC CR form 60D.

Companies Form 89. Notice by *official manager/*deputy official manager of resignation or removal from office

489. CR form 89 sets out the form of a notice of resignation or removal by an official manager or a deputy official manager. This form, which is required to be lodged with the NCSC under CA s-secs. 340(2) and 357(5), is based on VIC CR form 61.

Companies Form 90: Notice by official manager of holding of six-monthly meeting

490. CR form 90 sets out the form of a notice of the holding of a meeting convened pursuant to the provisions of CA s-sec. 342(1). This notice, which is required to be lodged with the NCSC under CA s-sec. 342(6) is based on VIC CR form 61A.

Companies Form 91: Notice of special resolution of creditors extending period of official management

491. CR form 91 sets out the form of a notice which is required to accompany a copy of a special resolution lodged with the NCSC under CA s-sec. 344(4). This form is based on VIC CR form 61B.

Companies Form 92: Notice by official manager of holding of meetings of members and creditors when company unable to pay-debts

492. CR form 92 sets out the form of a notice of the meetings of members and creditors of a company. This form, which is required to be lodged with the NCSC under CA s-sec. 347(11), is based on VIC CR form 61C.

Companies Form 93: Notice of order terminating official management

493. CR form 93 sets out the form of a notice of the making of an order under CA s. 352. This notice, which is required to be lodged with the NCSC under CA para. 354(1)(a), is based on VIC CR form 61D.

Companies Form 94: Notice of order varying or cancelling resolution for official management

494. CR form 94 sets out the form of a notice of the making of an order under CA s. 353. This form, which is required to be lodged with the NCSC under CA para. 354(1)(a), is based on VIC CR form 61E.

Companies Form 95: Notice relating to meeting of creditors called to receive report of official manager on cessation of office

495. CR form 95 sets out the form of a notice of a meeting to consider the report of the official manager on cessation of his office. This form, which is required to be lodged under CA s-sece. 355(12), (13) or (14) is based on VIC CR form 61P.

Companies Form 96: Notice of *application for/*dismissal of application for/*withdrawal of application for/*making of winding up order

496. CR form 96 sets out the form of a notice of an application for a winding up order, a notice of the making of a winding up order, and a notice of the withdrawal or dismissal of an application for a winding up order. These notices are required to be lodged with the NCSC pursuant to CA paras. 370(1)(a)(b) or (c).

497. The requirements to effect notification of the making of an application, or of the withdrawal or dismissal of an application, are new. VIC CR form 62 sets out the form of a notice of the making of a winding up order and particulars of the liquidator. Such notice is required to be lodged under ICAC CA s-sec. 230(1).

Companies Form 97: Declaration of solvency

498. CR form 97 sets out the form of a declaration of solvency and statement of assets and liabilities which the directors will be able to make under CA s-secs. 395(1) and (2). This form is based on VIC CR form 63.

Companies Form 98: Notice of meeting of creditors under section 397

499. CR form 98 sets out the form of a notice convening a meeting of creditors pursuant to CA s-sec. 397(1). This form is based on VIC CR form 64.

Companies Form 99: Notice of holding of meeting of creditors to consider appointment of another liquidator

500. CR form 99 sets out the form of a notice of the holding of a meeting of creditors pursuant to CA s-sec. 397(1). The liquidator is required to lodge this form with the NCSC under CA s-sec 397(7). CR form 99 is based on VIC CR form 65.

Companies Form 100: Return by liquidator relating to final meeting

501. CR form 100 sets out the form of a return by the liquidator relating to the holding of the final meeting of the company. This return, which is required to be lodged by the liquidator under CA s-secs. 411(3) and (4), is based on VIC CR form 66.

Companies Form 101: Notice of appointment and of address of office of liquidator (winding up by the court)

502. CR form 101 sets out the form of a notice of the appointment of a liquidator or provisional liquidator and of the address of his office in the case of a winding up by the Court. This notice, which is required to be lodged with the NCSC under CA s-sec. 421(1), is based on VIC CR form 67.

Companies Form 102: Notice of appointment and of address of office of liquidator (members’ voluntary winding up)

503. CR form 102 sets out the form of a notice of the appointment of a liquidator and of the address of his office in the case of a members’ voluntary winding up. This notice, which is required to be lodged with the NCSC under CA s-sec. 421(1), is based on VIC CR form 68.

Companies Form 103: Notice of appointment and of address of office of liquidator (creditors’ voluntary winding up)

504. CR form 105 sets out the form of a notice of the appointment of a liquidator and of the address of his office in the case of a creditors’ voluntary winding up. This notice, which is required to be lodged with the NCSC under CA s-sec. 421(1), is based on VIC CR form 69.

Companies Form 104: Notice of change in situation of office of liquidator

505. CR form 104 sets out the form of a notice of a change in the situation of a liquidator’s office. This notice, which is required to be lodged with the NCSC under CA s-sec. 421(1), is based on VIC CR form 70.

Companies Form 105: Notice by liquidator of resignation or removal from office

506. CR form 105 sets out the form of a notice of resignation or removal of a liquidator. This notice, which is required to be lodged with the NCSC under CA s-sec. 421(2), is based on VIC CR form 71.

Companies Form 106: Liquidator’s account of receipts and payments and statement of the position in the winding up

507. CR form 106 sets out the form of a liquidator’s account of receipts and payments and a statement of the position in a winding up. This form is required to be lodged with the NCSC under CA s-sec. 422(1).

508. CR form 106 is based generally on VIC CR form 72. A number of changes to the latter form have however, been made. The more significant changes are as follows:

(a) a liquidator will be required to give the totals rather than individual details of his receipts during the period in question. In addition information will have to be given as to amounts received in previous accounting periods;

(b) the information required in relation to a liquidator’s payments has been categorized into groups;

(d) the “Statement of Position in Winding Up” has been extensively redrafted so as to give a more accurate picture of the current position in the winding up;

(e) a provisional liquidator is not required to complete the “Statement of Position in Winding Up”.

Companies Form 107: Disclaimer of onerous property

509. CR form 107 sets out the form of a disclaimer of onerous property, which may be made under CA s-sec. 454(1). CR form 107 is based on Bankruptcy Rules 1966 Sch. 1 form 18.

Companies Form 108: Notice of intention to disclaim lease

510. CR form 108 sets out the form of a notice of intention to disclaim a lease which is required to be given under CA para. 454(6)(a) and which is referred to in CR reg. 69. CR form 108 is based on Bankruptcy Rules 1966 Sch. 1 form 19.

Companies Form 109: Application requiring liquidator to decide whether to disclaim property

511. CR form 109 sets out the form of an application to a liquidator under CA para. 454(8)(a). CR form 109 is based on Bankruptcy Rules 1966 Sch. 1 form 20.

Companies Form 110: Notice by *recognised company/*recognised foreign company of principal office and of office hours in participating State or participating Territory

512. CR form 110 sets out the form of a notice of the address of the principal office of a company or change thereto, and of a notice of the hours during which the principal office is open and accessible to the public, or any change thereto. This notice is required to be lodged under CA s-secs. 501(1) and (2) and 502(1) and (2).

Companies Form 111: Certificate as to address of principal office in participating State or participating Territory

513. CR form 111 sets out the form of a certificate to be issued under CA s-sec. 501(3).

Companies Form 112: Notice of cessation of business

514. CR form 112 sets out the form of a notice of cessation of business which is required to be lodged under CA s. 503 and s-sec. 518(1). CR form 112 is based on VIC CR form 89.

Companies Form 113: Return by foreign company giving particulars of directors or members of other governing body and changes of particulars

515. CR form 113 sets out the form of a return by a foreign company giving particulars of directors or members of the company’s governing body, under CA para. 512(2)(c) or 515(2)(b).

516. CR form 115 is based on VIC CR form 77 except that the terminology of VIC CR form 77 has been changed to take account of the possibility of the foreign company not having persons known as “directors” in its governing body.

Companies Form 114: Notice in relation to registered office or principal place of business

517. CR form 114 sets out the form of the following notices:-

(1) Notice by a foreign company seeking registration of the address of its registered office or principal place of business in the place of incorporation or formation. This notice is required to be lodged with the NCSC pursuant to CA para. 512(2)(fa).

(2) Notice by a foreign company seeking registration of the address of its registered office in the Territory or State in which the foreign company is seeking registration. This notice is required to be lodged with the NCSC pursuant to CA para 512(2)(g).

(3) Notice by a registered foreign company of any change or alteration in the situation of its registered office. This notice is required to be lodged with the NCSC pursuant to CA s-sec. 515(1).

(4) Notice by a registered foreign company of any change in the situation of its registered office or principal place of business in the place of incorporation or formation. This notice is required to be lodged with the NCSC pursuant to CA para 515(2)(d).

(5) Notice by a registered foreign company of the hours during which the registered office will be open and accessible to the public, or of any charge thereto. This notice is required to be lodged with the NCSC pursuant to CA s-secs 513(2) and 515(3).

518. CR form 114 is based on para. 3 of Vic CR form 78, Vic CR form 84, and para 1 of Vic CR form 86.

Companies Form 115: Statement in writing by agent of foreign company

519. CR form 115 sets out the form of a statement in writing that is required to be made by the agent of a foreign company pursuant to CA para. 512(2)(h). This form is based on VIC CR form 78.

Companies Form 116: Notice by foreign company of cessation of agency

520. CR form 116 sets out the form of a notice by a foreign company of cessation of agency under CA s-sec. 514(3). CR form 116 is based on VIC CR form 80.

Companies Form 117: Notice by agent of foreign company of cessation of agency

521. CR form 117 sets out the form of a notice by the agent of a foreign company of cessation of agency under CA s-sec. 514(3) CR form 117 is based on VIC CR form 79.

Companies Form 11b: Certificate of registration of foreign company

522. CR form 118 sets out the form of a certificate of registration of a foreign company under CA s-sec. 514(6). CR form 118 is based on VIC CR form 81.

Companies Form 119: Particulars of change or alteration relating to foreign company

523. CR form 119 sets out the form of a notice in writing, under CA s-sec. 515(2), containing particulars of a change or alteration in accordance with CA paras. 515(2)(a), (e) or (f), CI form 119 is based on VIC CR form 82.

Companies Form 120: Particulars of change or alteration relating to agent of foreign company

524. CR form 120 sets out the form of a notice of change or alteration relating to the agent of a foreign company under CA para. 515(2)(c). This form is based on VIC CR form 83.

Companies Form 121: Statement in writing verifying balance - sheet, profit and loss account, &c, of foreign company

525. CR form 121 sets out the form of a statement in writing verifying that the copies of documents lodged with the NCSC are true copies of the documents required to be lodged under CA s-sec. 516(1). CR form 121 is based on VIC CR form 85.

Companies Form 122: Annual return of foreign company

526. CR form 122 sets out the form of annual return of a registered foreign company under CA s-sec. 516(8). CR form 122 is based on VIC CR form 86.

Companies Form 123: Notice by agent of foreign company of liquidation or dissolution of company

527. CR form 123 sets out the form of a notice for the purposes of CA para. 516(11)(a). This form is based on VIC CR form 90.

Companies Form 124: Notice by foreign company of placing under or termination of official management in place of incorporation

528. CR form 124 sets out the form of a notice by a foreign company of its being placed under official management, or of the termination of a period of official management in the place of incorporation under CA s-sec. 518(12). CR form 124 is based on VIC CR form 90A.

Companies Form 125: Notice of meeting

529. CR form 125 sets out the form of a notice pursuant to CA para. 577(1)(d) and CR para 84(2)(b). This form is based on VIC CR form 92.

Companies Form 126: Statement in writing of posting of notices of meeting

530. CR form 126 sets out the form of a statement in writing by the person summoning a meeting or by some person acting on his behalf that the notice of the meeting was duly sent by prepaid post, pursuant to CA para. 577(1)(d) and CR reg. 85. This form is based on NSW SCR form 46.

Companies Form 127: List of persons present at meeting of ……. of ……… Limited

531. CR form 127 sets out the form of a list of those persons present in person or by proxy at a meeting. This list, which is made pursuant to CA para 577(1)(d) and CR sub-reg. 99(2), is based on NSW SCR form 47.

Companies Form 128: Appointment of proxy

532. CR form 128 sets out the form of the appointment of a person as a proxy for the purposes of CA para 577(1)(e) and CR reg. 103. This form is based on VIC CR form 94.

Companies Form 129: Notice to submit particulars of debts or claims

533. CR form 129 sets out the form of a notice to submit particulars of debts or claims for the purposes of CA para 577(1)(f) and CR sub-reg. 111(2). CR form 129 is based on NSW SCR form 84 except for minor drafting changes.

Companies Form 130: Notice inviting formal proof of debt or claim

534. CR form 130 sets out the form of a notice in writing for the purposes of CA para 577(1)(f) and CR sub-reg. 120(2). This form is based on NSW SCR form 85.

Companies Form 131: Formal proof of debt or claim (general form)

535. CR form 131 sets out the form of a proof of debt or claim for the purposes of CA para 577(1)(f) and CR sub-reg. 121(2). CR form 131 is based on VIC CR form 75.

Companies Form 132: Formal proof of debt or claim on behalf of employees

536. CR form 132 sets out the form of proof of debt or claim to be submitted to the liquidator of a company pursuant to CA para 577(1)(f) and sub-reg. 121(3).

537. This form is to be used where there are numerous claims by employees for wages, salaries, or remuneration for annual leave or long service leave.

538. CR form 132 is required to include a schedule setting out the names of employees and the amounts due to them.

539. CR form 132 is based on VIC CR form 76 and NSW SCR form 88.

Companies form 133 - Notice as to rejection of formal proof of debt or claim

540. CR form 133 sets out the form of notice to be issued by a liquidator pursuant to CA para 577(1)(f) and CR sub-reg. 126(4) when he rejects a creditor’s formal proof of debt or claim. CR form 155 is based on NSW SCR form 87.

Companies Form 134: Provisional list of contributories

541. CR form 134 sets out the form of the provisional list of contributories that a liquidator is required to prepare pursuant to CR reg. 130 as soon as possible after his appointment.

542. CR form 134 is based on NSW SCR form 63 except that CR form 134 requires the liquidator to indicate in respect of each contributory the amount not called up at the commencement of the winding up.

Companies Form 135: Notice to contributories of appointment to settle list of contributories

543. CR form 135 sets out the form of notice that the liquidator is required to send (pursuant to CR sub-reg. 131(1)) to each person included in the provisional list of contributories. This notice is required to include particulars of the time and place appointed for settlement of the list of contributories. CR form 135 is based on NSW SCR form 64.

Companies Form 136: Statement in writing of posting of notices of appointment to settle list or supplementary list of contributories

544. CR form 136 sets out the form of statement that the liquidator is required to lodge with the NCSC pursuant to CR sub-reg. 131(2).

545. The liquidator is required to state on this form that notice under CR sub-reg. 131(1) (CR form 135) was sent to each person included in the provisional list of contributories.

546. CR form 136 is based on NSW SCR form 46, insofar as it applies to contributories.

Companies Form 137: Certificate of liquidator of final settlement of the list of contributories

547. CR form 137 sets out the form of certificate that the liquidator is required to make (pursuant to CR sub-reg. 132(2)) upon settlement of the list of contributories.

548. The liquidator is required to set out in the certificate in separate schedules:

(a) those persons included in the list of contributories as contributories in their own right;

(b) those persons included in the list of contributories as contributories who are representatives of others or who are liable for the debts of others; and

549. CR form 137 is based on NSW SCR form 60.

Companies Form 138: Provisional supplementary list of contributories

550. CR form 138 sets out the form of the provisional supplementary list of contributories which a liquidator is entitled to make pursuant to CR para 133(1)(a). The supplementary list is to be set out in a form similar to that set out in CR form 134 (Provisional list of contributories).

551. CR form 138 is based on NSW SCR form 67 except that CR form 138 does not require the liquidator to state in the form certain of the particulars required by NSW SCR form 67.

Companies Form 139: Certificate of liquidator of settlement of supplementary list of contributories

552. CR form 139 sets out the form of the certificate that the liquidator (pursuant to CR para 133(1)(b)) is required to make upon settlement of the supplementary list of contributories. The certificate is to be set out in a form similar to that required by CR form 137 (Certificate of liquidator of final settlement of the list of contributories). CR form 139 is based on NSW SCR form 68.

Companies Form 140: Notice to contributory of final settlement of list or supplementary list of contributories and of his inclusion in the list

553. CR form 140 sets out the form of notice that is required to be sent pursuant to CR sub-reg. 134(4) to each person included on

the settled list of contributories. The liquidator is required to include in the notice a Schedule setting out particulars relating to the contributories’ shareholding in the company. CR form 140 is based on NSW SCR form 68.

Companies Form 141: Statement in writing of giving of notices to persons placed on the list or supplementary list of contributories

554. The statement in writing required for the purposes of CR sub-reg. 134(5) is to be in accordance with CR form 141. CR form 141 is based on NSW SCR form 70.

Companies Form 142: Notice of intention to declare a dividend

555. CR form 142 sets out the form of notice that the liquidator, pursuant to CR para 137(1)(a), is required to have published in the Gazette. The liquidator is required to give notice in this form of his intention to declare a dividend, and to require creditors to lodge formal proofs of debt or claim by a date specified in the notice. This form is based on NSW SCR form 90.

Companies Form 143: Notice to creditor or person claiming to be a creditor of intention to declare a dividend

556. CR form 143 sets out the form of notice that is required to be given (pursuant to CR para 137(1)(b)) to a creditor who has not had his debt or claim admitted. The liquidator is required

to give the creditor notice of his intention to declare a dividend, and to require the creditor to prove his debt or claim by a specified date. This form is based on NSW SCR form 91.

Companies Form 144: Notice to creditor or person claiming to be a creditor of intention to declare a final dividend

557. CR form 144 sets out the form of notice that is required to be given, pursuant to CR para 137(1)(b) to a creditor who has not had his debt or claim admitted. The liquidator is required to give the creditor notice of his intention to declare a final dividend, and to require the creditor to prove his debt or claim on or before a specified date. This form is based on NSW SCR form 92.

Companies Form 145: Notice of declaration of dividend

558. CR form 145 sets out the form of notice of dividend that is required by CR sub-reg. 139(3) to be sent to every person entitled to receive payment of the dividend. CR form 145 is based on NSW SCR form 93.

Companies Form 146: Authority to liquidator to pay dividend to a person named

559. CR form 146 sets out the form of authority that may be lodged with the liquidator pursuant to CR reg. 142. This authority may be lodged by a person to whom a dividend is

payable, and it will entitle the liquidator to pay the dividend to the person named in the authority. This form is based on NSW SCR form 94.

Companies Form 147: Schedule of contributories, or other persons, to whom a distribution of surplus is to be paid

560. CR form 147 sets out the form of the schedule of contributories which is required, pursuant to CR sub-reg. 143(1), to be attached to an order of the Court authorizing the liquidator to distribute any surplus to the contributories of the company. CR form 147 is based on NSW SCR form 95.

Companies Form 148: Notice of distribution to contributories or other persons

561. CR form 148 sets out the form of notice of distribution that is required, pursuant to CR sub-reg. 143(1), to be sent to each person to whom any surplus is returned. CR form 148 is based on NSW SCR form 96.

Companies Form 149: Authority to liquidator to pay distribution of surplus capital to a person named

562. CR form 149 sets out the form of authority that may be lodged with the liquidator pursuant to CR reg. 144. This authority may be lodged by a person to whom a notice of return of capital has been sent, and requires the liquidator to pay the distribution of surplus to the person specified in the authority. CR form 149 is based on NSW SCR form 97.

Companies Form 150: Consent to specification of address as address of office of corporation

563. CR form 150 sets out the form of the consent that is to be lodged with the NCSC for the purposes of the new requirements in CA para. 530A(d). This form, to be signed by the occupier of premises, is to accompany a notice of address of an office of a corporation where the notified address is the address of premises that will not be occupied by the corporation.

Companies Form 151: Statement in writing in respect of disposal of securities of shareholder whose whereabouts are unknown

564. CR form 151 sets out the form of the statement in writing that is to accompany any application under CA s-sec. 534(2). CR form 151 is to be made by a director, principal executive officer or secretary of the company when applying to the Minister administering the Unclaimed Moneys Ordinance for permission to transfer to him securities held by a person whose whereabouts are unknown. CR form 151 is based on VIC CR form 90B.

Companies Form 152: Notice of place other than registered or principal office at which register or branch register is kept

565. CR form 152 sets out the form of notice that is required to be lodged with the NCSC pursuant to the new requirements of CA s-sec. 547(4). This form is to be lodged where a register is kept at a place other than the registered office or the principal office.

Companies Form 155: Notice in relation to branch register of registered foreign company

566. CR form 153 sets out the form of notice that a registered foreign company is required to lodge with the NCSC pursuant to CA s-sec. 521(10) or 521(11). CR form 153 is a new form.

SCHEDULE 3 - PRESCRIBED AMOUNTS

567. CR Schedule 3 sets out the fees that will be able to be charged by companies in relation to:

(a) the inspection of registers;

(b) the supply of a copy of the company’s memorandum and articles;

(d) the replacement of lost or destroyed certificates relating to shares, debentures or prescribed interests.

568. CR Schedule 5 is new. At present these amounts are set out in the ICAC CA itself.

SCHEDULE 4 - PROSPECTUS

569. The provisions of CR Schedule 4 reflect the requirements of CA para. 98(1)(ea) that a prospectus must contain the prescribed matters and prescribed reports.

570. The requirement that the matters and reports to be contained in a prospectus be prescribed by regulation is new. The former situation was that these matters were set out in the Fifth Schedule to the 1CAC CA (see ICAC CA para. 39(1)(d)). The decision was made that these provisions should be set out in Regulations on the basis that this course of action would facilitate amendments to the provisions. Some of the provisions of the Fifth Schedule to the ICAC CA have, however, been included in the CA:

ICAC CA	CA
Fifth Schedule

para. 4	para. 98(1)(d)
para. 15	para. 98(1)(k)
para. 17	para. 98(1)(m)
para. 31	para. 98(1)(e)
para. 32	para. 97(4)
para. 33	s-sec. 97(4)
	s-sec. 97(5)

Part I: Matters to be stated

571. CR Schedule 4 Part I is based on ICAC CA Fifth Schedule Part I except that, as noted in the preceding paragraph, ICAC CA Fifth Schedule clauses 4, 15 and 17 have been relocated in the CA (see CA paras. 98(1)(d), (k) and (m)).

Part II: Reports to be contained in prospectus

572. CR Schedule 4 Part II is based on ICAC CA Fifth Schedule Part II. The following significant changes should, however, be noted:

(a) Reference is now made to an “investigating accountant’s report” rather than to an “auditor’s report”. See para. 76 of this paper for an explanation of this change;

(b) The investigating accountant’s reports referred to in CR Schedule 4 clauses 16 and 17 must be made up to no later than 6 months before the issue of the prospectus or, if the NCSC gives permission, 12 months before the issue of the prospectus. The equivalent provisions in ICAC CA Fifth Schedule paras 21 and 22 only require that the accounts be made up to within 9 months of the issue of the prospectus.

(c) Where the investigating accountant is required to give a report on the profit or loss, or assets and liabilities, of a corporation or of a group of corporations for a specified number of financial years he will also be required to report on the accounts for any period of less than six months between the end of the last financial year and the date of his report (CR Sch. 4, cls. 16 and 17);

(d) When dealing with the combined profits and losses and combined assets and combined liabilities of a corporation and its subsidiaries an investigating accountant now has the option of presenting the accounts in additional combinations of consolidated and separate accounts (CR Sch. 4, s-cl. 19(1));

(e) There is a new requirement that, when an investigating accountant is dealing with the accounts of a group of corporations, transactions and balances between companies in the group must be eliminated (CR Sch. 4, s-cl. 19(5));

(f) If an investigating accountant deals with the accounts of a group of corporations other than in accordance with the manner specified in CR Sch. 4 para 19(1)(a) he must now give reason for doing so (CR Sch. 4, s-cl. 19(4));

(g) There is a new requirement that the directors of the company issuing the prospectus must give full details of any of the matters mentioned in their report (CR Sch. 4 s-cl. 21 (2));

(h) In the case of a single corporation, reference is now made to that corporation’s “profit or loss” rather than to its “profits or losses”. See para. 81 of this paper for an explanation of this change;

(i) In the case of a group of corporations, reference is now made to the “combined profits and losses” of the group rather than to its “combined profits or losses”. See para. 83 of this paper for an explanation of this change;

(j) Again for a group of corporations, reference is now made to the “combined assets and combined liabilities” of the group rather than to the “combined assets and liabilities”. See para. 83 of this paper for an explanation of this change.

Part III: Directions applicable to Parts I and II

573. CR Sch. 4 Part III is based on ICAC CA Fifth Sch. Part III except that cl. 31 of the latter Part is now in the CA at para. 98(1)(e).

Part IV: Additional matters to be set out in a prospectus relating to an invitation to deposit money with or lend money to a corporation

574. CR Sch. 4 Part IV is based on ICAC CA Fifth Sch. Part IV except that paras. 32 and 33 of the latter part have now been placed in the CA at s-secs. 97(4) and 97(5) respectively.

SCHEDULE 5: MATTERS AND THINGS TO BE INCLUDED IN A DEED PURSUANT TO PARAGRAPH 166(2)(b)

575. OR Sch. 5 is based on VIC CR reg. 12 with some drafting changes and the following substantive amendments:

(a) CR Sch. 5 cl. 1 (cf VIC CR para. 12(1)(a)) now requires particulars to be given of the rights of the holders of the prescribed interests;

(b) CR Sch. 5 cl. 3 (cf VIC CR para. 12(1)(c)) takes account of the situation where some or all of the property subject to the scheme will not vest in the trustee or representative;

(c) It is now clear that CR Sch. 5 cl. 8 (cf VIC CR para. 12(1)(h)) does not apply to meetings required to be held under CA para. 168(1)(h); and

(d) CR Sch. 5 cl. 10 (cf VIC CR para 12(1)(j)) now gives protection to the rights of the holders of prescribed interests where the provisions of the deed are capable of modification by requiring that their consent be obtained before any modification is effected.

SCHEDULE 6: STATEMENT REQUIRED PURSUANT TO SECTION 170

576. CR Sch. 6 Part I is based on the VIC CA Seventh Schedule Part I except that:

(a) There are a number of drafting changes, eg the “deed” is referred to as the “approved deed” throughout, and changes have been made in respect of the use of the terms “prescribed interest” and “undertaking, scheme, enterprise or investment contract” (see eg CR Sch, 6 cl. 14 and cl. 21 inter alia);

(b) There is now a requirement to give the address of the principal office of the management company in each State or Territory in which it has such an office as well as the address of its registered office in the A.C.T. (CR Sch. 6 cl. 6 - cf VIC CA 7th Sch. cl. 6);

(c) Pull particulars must now be given with respect to the winding up or termination of any part of the undertaking etc to which the scheme relates (CR Sch. 6 cl. 12 - cf VIC CA 7th Sch. cl. 12);

(d) Additional details must now be given of a transaction involving the purchase of property in relation to the undertaking etc to which the deed relates (CR Sch. 6 cl. 22 - based on CR Sch. 4 cl. & rather than the more restricted requirements of VIC CA 7th Sch. cl. 22);

(e) There is a new requirement to disclose details of commissions paid within the preceding two years for the procuring etc of any prescribed interests (CR Sch. 6 cl. 23 - based on CR Sch. 4 cl. 10);

(f) Information must now be given of:

• the cost of setting up the undertaking etc;

• the persons who have paid these costs

(CR Sch. 6 cl. 24 - based on CR Sch. 4 cl. 11).

(g) There is now a requirement to give details of the amount or benefit to be paid to any promoter, the management company or any director of that company out of the proceeds of the issue of prescribed interests. (CR Sch. 6 cl. 25 - based on CR Sch. 4 cl. 12);

(h) Any exemptions given under CA s-sec. 168(2) or s. 176 must now be disclosed (CR Sch. 6 cl. 27);

(i) If the statement relates to more than one class of prescribed interest then details of the voting rights of the different classes must be disclosed (CR Sch. cl. 32 - based on CR Sch. 4 cl. 14);

577. CR Sch. 6 Part II is based generally on VIC CA 7th Sch. Part II except for the following new provisions:

(a) There is to be included in the statement a report by the directors of the management company on the investments of the trust or relating to the undertaking etc which report must be current as at 28 days before the issue of the statement (CR Sch. 6 cl. 40);

(b) the reports to be contained in the statement by virtue of CR Sch. 6 cl. 4 (VIC CA 7th Sch. para. 3.6) are to be made up to within 28 days of the issue of the statement (see also CR Sch. 6 s-cl. 41(c) where the price information required is now to be given within 28 days rather than 14 days as in the VIC CA);

(c) The information required to be given in relation to the accounts of the management company must now also be given in relation to the accounts of the undertaking etc to which the scheme relates (CR Sch. 6 s-cl. 41(e));

(d) the accounts of the management company required under CR Sch. 6 s-cl. 41(f) (VIC CA 7th Sch. para. 36(e)) are to be made up to within one year of the issue of the statement (cf. CR Sch. 4 para. 16, where the period is six months, although an extension is available in special circumstances). The same rule applies to the accounts of the undertaking etc to which the scheme relates;

(e) Where the proceeds of the issue of the prescribed interests are to be used for the purchase of a business, then the statement must contain a registered company auditor’s report on the accounts of that business for the preceding five financial years (CR Sch. 6 cl. 42 - based on CR Sch. 4 cl. 16 except that the last financial year of the business to which the auditor’s report relates must have ended no more then 12 months before the issue of the statement (rather than 6 months for a report contained in a prospectus - see CR sub-reg. 31(3));

(f) The explanatory statement must now also contain a report by the directors of the management company relating to the period between the date to which the CR Sch. 6 cl. 41 reports were made and a date not earlier than 28 days before the issue of the statement (CR Sch. 6 cl. 43 - based on CR Sch. 4 cl. 21).

578. CR Sch. 6 Part III is new and contains provisions based on CR Sch. 4 Part III, cls. 24, 26 and 27 respectively.

SCHEDULE 7: ACCOUNTS AND GROUP ACCOUNTS

579. CR Sch. 7 is based on the ICAC CA Ninth Schedule. The following changes should, however, be noted:

(a) Particulars of income received, or due and receivable, as interest on debentures, deposits, loans or advances from “other persons” is required. (CR Sch. 7 s-para. 2(1)(b)(iv) - based on ICAC CA Ninth Schedule para. 2(1)(b));

(b) Particulars of the amount of debts on which interest or credit charges are due which have not been brought fully to account in the profit and loss account are required. (CR Sch. 7 s-para. 2(1)(k) - based on ICAC CA Ninth Schedule 2(1) (j));

(c) It is no longer necessary to disclose emoluments received by a non-resident director of the company from a holding company that is formed or incorporated outside Australia (CR Sch. 7 para. 2(1)(m) - cf ICAC CA Ninth Schedule para. 2(1)(l));

(d) Particulars of the nominal value of shares in the capital of the company in respect of which options are outstanding, the amount of premium (if any) payable in respect of those shares, and particulars of the options are required (CR Sch. 7 para. 5(1)(b));

(e) Particulars of the amount of the discount at which preference shares are to be redeemed or are liable to be redeemed are required. (CR Sch. 7 para. 5(1)(c) - based on ICAC CA Ninth Schedule para. 5(1)(b));

(f) There is a new requirement to disclose details of leasing and hire purchase commitments entered into (CR Sch. 7 para. 5(2)(g));

(g) The requirements on disclosure of stock on hand and work in progress in ICAC CA Ninth Schedule paras. 5(4)(b) and (c) have been combined and expanded and now require the disclosure, where appropriate, of raw materials, finished goods, work in progress and other stock (CR Sch. 7 para. 5(4)(b));

(h) Particulars of options held over shares in the holding company, subsidiaries, other related corporations and other corporations are required (CR Sch. 7 para. 5(4)(e));

(i) The amounts of interest due from the holding company, subsidiaries, other related corporations and other persons are required to be disclosed if that interest has not been brought to account in the profit and loss account. (CR Sch. 7 para. 5(4)(h));

(j) Particulars are required in respect of:-

(i) loans made by the company or its subsidiaries or both to the trustee of a trust under which a director of the company or a related company, or the spouse or other relative of such a director, has a beneficial interest; and

(ii) such loans guaranteed or secured by the company or its subsidiaries or both. (CR Sch. 7 para. 5(4)(j));

(k) The requirement that unearned income be deducted from the gross amount of debts owing to the company or the company and its subsidiaries has been modified to also require the deduction of unearned income from each specified class of debt. (CR Sch. 7 s-cl. 13(2) - based on ICAC CA 9th Sch. s-cl. 12(2)).

SCHEDULE 8: WITNESSES’ FEES AND TRAVELLING EXPENSES

580. CR Sch. 8, which sets out the allowable witnesses fees and travelling expenses for the purposes of CA s-sec. 296(10), is based on SIR Schedule 2 except that:

(a) CR Sch. 8 para. 1 makes it clear that the fees set out in that paragraph may only be paid to a person who is an officer by reason of his professional etc. skill and is called to give evidence because of that skill or knowledge (CR Sch. 8 para. 1); and

(b) there is no provision in CR Sch. 8 whereby an expert may obtain a reasonable fee for obtaining the qualifications to give evidence.

SCHEDULE 9: SCHEMES OF ARRANGEMENT

581. CR Sch. 9 is new and contains details of the information required to be given in an explanatory statement by directors to the creditors and members in relation to a proposed compromise or arrangement (see CA sub-para 316(1)(a)(ii)).

582. The information to be contained in the explanatory statement falls into the following broad categories:

(a) In the case of a compromise or arrangement involving creditors:

(i) details of all scheme creditors and of the dividends that may be paid to such creditors in specified circumstances (CR Sch. 9 Part I cl. 1);

(ii) information as to the accounts and affairs of the company (CR Sch. 9 Part II cl. 3);

(b) In the case of a proposed compromise or arrangement with members or a class of members:

(i) details of any recommendation in relation to the Scheme that may be made by a director, liquidator or official manager (CR Sch. 9 Part II, cl. 1);

(ii) details of any interest in the outcome of the Scheme held by a director and information as to any payment or benefit that may be made to a director, secretary or principal executive officer (CR Sch. 9 Part I, cl. 2);

(iii) details of any marketable securities to be offered as consideration to scheme members (CR Sch. 9 Part III, cl. 7, 8 and 9);

(iv) particulars of the intentions of the directors of the company in relation to certain aspects of the company’s future business (CR Sch. 9 Part III, cl. 10).

583. CR Sch. 9 also contains:

(a) interpretation provisions (CR Sch. 9 Part I);

(b) in the case of a proposed compromise or arrangement involving the members, a requirement, if certain specified conditions are fulfilled, that the explanatory statement have attached to it a report by an expert (CR Sch. 9 Part III cls. 3, 4, 5 and 6);

584. CR Sch. 9 is based generally, with necessary modifications, on Part A of the Schedule to the CA SA, “Statement to be furnished by offeror”.

S.R. No. 35/81

ANNEXURE I

ABBREVIATIONS

CA	Companies Act 1981 (Commonwealth)
C(AB)R	Companies Auditors’ Board Regulations
CR	Companies Regulations made under the Companies Act 1981 (Commonwealth)
C & SL	Companies and Securities Legislation
(MA)	(Miscellaneous Amendments)
Act 1981	Act 1981 (Commonwealth)
cl.	clause
ICAC CA	Companies Acts of the States which are parties to the Interstate Corporate Affairs Agreement
NCSC	National Companies and Securities Commission
NSW MSR	Regulations made under the Marketable Securities Act 1970 (NSW)
SA CR	Companies Regulations made under the Companies Act 1981 (South Australia)

SCR	Rules of the Supreme Court
SIR	Securities Industry Regulations made under the Securities Industry Act 1981 (Commonwealth)
s.	section
s-sec.	sub-section
Sch.	Schedule
para.	paragraph
sub-para.	sub-paragraph
VIC CR	Companies Regulations made under the Companies Act 1981 (Victoria)
WA MSTR	Regulations made under the Marketable Securities Transfer Act 1970 (Western Australia)

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