Corporations Act. Australia
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Название: Corporations Act

Автор: Australia

Издательство: Проспект

Жанр: Юриспруденция, право

Серия:

isbn: 9785392086429

isbn:

СКАЧАТЬ must provide that the following are held in trust by the trustee for the benefit of the debenture holders:

      (a) the right to enforce the borrower’s duty to repay;

      (b) any charge or security for repayment;

      (c) the right to enforce any other duties that the borrower and any guarantor have under:

      (i) the terms of the debentures; or

      (ii) the provisions of the trust deed or this Chapter.

      Note: For information about the duties that the borrower and any guarantor body have under this Chapter, see sections 283BB to 283CE.

      (2) An offence based on subsection (1) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      283AC Who can be a trustee

      Who can be trustee

      (1) The trustee must be:

      (a) the Public Trustee of any State or Territory; or

      (aa) a licensed trustee company (within the meaning of Chapter 5D); or

      (b) a body corporate authorised by a law of any State or Territory to take in its own name a grant of probate of the will, or letters of administration of the estate, of a deceased person; or

      (c) a body corporate registered under section 21 of the Life Insurance Act 1995; or

      (d) an Australian ADI; or

      (e) a body corporate, all of whose shares are held beneficially by a body corporate or bodies corporate of the kind referred to in paragraph (b), (c) or (d) if that body or those bodies:

      (i) are liable for all of the liabilities incurred, or to be incurred, by the trustee as trustee; or

      (ii) have subscribed for and beneficially hold shares in the trustee and there is an uncalled liability of at least $500,000 in respect of those shares that can only be called up if the trustee becomes an externally‑administered body corporate (see section 254N); or

      (f) a body corporate approved by ASIC (see section 283GB).

      Note: Section 283BD provides that if the borrower becomes aware that the trustee cannot be a trustee, the trustee must be replaced.

      Circumstances in which a person cannot be trustee

      (2) A person may only be appointed or act as trustee (except to the extent provided for by section 283AD) if the appointment or acting will not result in a conflict of interest or duty. This subsection is not intended to affect any rule of law or equity.

      (3) An offence based on subsection (1) or (2) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      283AD Existing trustee continues to act until new trustee takes office

      An existing trustee continues to act as the trustee until a new trustee is appointed and has taken office as trustee, despite any rule of law or equity to the contrary.

      Note: This section applies even if the existing trustee resigns.

      283AE Replacement of trustee

      Related party of existing trustee may be appointed as a new trustee

      (1) In addition to any other powers of appointment under the terms of the debentures or provisions of the trust deed, the borrower may appoint a body corporate that is related to the existing trustee as trustee in place of the existing trustee if:

      (a) the body corporate can be a trustee under section 283AC; and

      (b) the existing trustee consents in writing to the appointment.

      The appointment has effect despite any terms of the debentures or provisions of the trust deed.

      Appointment by Court

      (2) The Court may:

      (a) appoint a person who may be a trustee under section 283AC as trustee on the application of the borrower, a debenture holder or ASIC if:

      (i) a trustee has not been validly appointed; or

      (ii) the trustee has ceased to exist; or

      (b) terminate the existing trustee’s appointment and appoint a person who may be a trustee under section 283AC as trustee in the existing trustee’s place on the application of the borrower, the existing trustee, a debenture holder or ASIC if:

      (i) the existing trustee cannot be trustee under section 283AC; or

      (ii) the existing trustee fails, or refuses, to act.

      Part 2L.2 — Duties of borrower

      283BA Duties of borrower

      A borrower that is required to enter into a trust deed under section 283AA has the duties imposed by this Part.

      283BB General duties

      The borrower must:

      (a) carry on and conduct its business in a proper and efficient manner; and

      (b) provide a copy of the trust deed to:

      (i) a debenture holder; or

      (ii) the trustee;

      if they request a copy; and

      (c) make all of its financial and other records available for inspection by:

      (i) the trustee; or

      (ii) an officer or employee of the trustee authorised by the trustee to carry out the inspection; or

      (iii) a registered company auditor appointed by the trustee to carry out the inspection;

      and give them any information, explanations or other assistance that they require about matters relating to those records.

      Note: The borrower also has a duty to call a meeting of debenture holders in certain circumstances (see section 283EA).

      283BC Duty to notify ASIC of information related to trustee

      (1) Within 14 days after the trustee is appointed, the borrower must lodge with ASIC a notice containing the following information:

      (a) the name of the trustee;

      (b) any other information related to the trustee or the debentures that is prescribed by the regulations.

      (2) If there is any change to СКАЧАТЬ