Competition and Consumer Act. Australia

Чтение книги онлайн.

      4A Subsidiary, holding and related bodies corporate

      (1) For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if:

      (a) that other body corporate:

      (i) controls the composition of the board of directors of the first-mentioned body corporate;

      (ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned body corporate; or

      (iii) holds more than one-half of the allotted share capital of the first-mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

      (b) the first-mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).

      (2) For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:

      (a) a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or

      (b) a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.

      (3) In determining whether a body corporate is a subsidiary of another body corporate:

      (a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;

      (b) subject to paragraphs (c) and (d), any shares held or power exercisable:

      (i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or

      (ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;

      shall be treated as held or exercisable by that other body corporate;

      (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and

      (d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

      (4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.

      (5) Where a body corporate:

      (a) is the holding company of another body corporate;

      (b) is a subsidiary of another body corporate; or

      (c) is a subsidiary of the holding company of another body corporate;

      that first-mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.

      (5A) For the purposes of Parts IV, VI and VII:

      (a) a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and

      (b) a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and

      (c) a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.

      (6) In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.