Australian Securities and Investments Commission
Corporations Act 2001 – Subsection 601YAA(1) –
Declaration
 
Enabling provision
 
1.       The Australian Securities and Investments Commission makes this instrument under subsection 601YAA(1) of the Corporations Act 2001 (the Act).
 
Title
 
2.       This instrument is ASIC Class Order [CO 11/407].
 
Commencement
 
3.       This instrument commences on the later of:
 
(a)     1 May 2011; and
 
(b)     the date it is registered under the Legislative Instruments Act 2003.
 
Note:  An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, section 4 (definition of register). The FRLI may be accessed at http://www.frli.gov.au/.
 
Cessation
 
4.       This instrument ceases to have effect on 1 July 2011.
 
Declaration
 
5.       Chapter 5D of the Act applies to a trustee company listed in Schedule 8AA to the Corporations Regulations 2001 as if Division 2 of Part 10.12 of the Act were modified or varied by, after section 1495, inserting:
 
“1495A  Transitional arrangements for unlicensed trustee companies
 
(1)     This section applies to a trustee company that does not hold an Australian financial services licence.
 
(2)     On 1 May 2011 until the end of 30 June 2011:
 
(a)     the trustee company is taken to have a licence covering the provision by the company of traditional trustee company services provided by the company; and
 
(b)     section 601TAB does not apply to the company; and
 
(c)     Part 7.7 does not apply to the traditional trustee company services provided by the company.
 
Note: If the company wants to continue to provide traditional trustee company services after 30 June 2011, it will need to (by the end of that period) obtain a licence covering those services.
 
(3)     To avoid doubt, subsection (2) does not limit ASIC’s powers under Part 7.6 in relation to the licence the trustee company is taken to have.
 
Note: ASIC has power to vary, cancel or suspend the licence under Subdivision C of Division 4 of Part 7.6.
 
(4)     A trustee company that is taken to have an Australian financial services licence under subsection (2) is, for paragraph 912A(1)(d), taken to have available adequate resources to provide traditional trustee company services if the company maintains the amount of net tangible assets it held at 6 May 2010 for the period it is taken to have the licence.
 
(5)     In subsection (4) net tangible assets means the total assets of a trustee company:
 
(a)     less total liabilities of the company; and
 
(b)     less any intangible assets reported in the company’s books of account;
 
calculated on the basis of assets and liabilities as they would appear if, at the time of calculation, a balance sheet were made up for lodgment as part of a financial report under Chapter 2M on the basis that the company is a reporting entity.
 
(6)     For subsection (5), a trustee company must:
 
(a)     work out its total assets by excluding:
 
(i)      all receivables to be received from a related party as defined in AASB 124 and Part 2E.2; and
 
(ii)     any assets that are subject to any charge that secures the liability of a person other than the company, to the extent of the value of that charge; and
 
(iii)    any assets to which the company is not legally and beneficially entitled or that are not held in the name of the company; and
 
(iv)    any assets that are not capable of being converted into cash in the short term; and
 
(b)     include in its total liabilities all payables payable to a related party as defined in AASB 124 and Part 2E.2.
 
(7)     In this section:
 
AASB 124 means AASB 124, Related Party Disclosures, published by the Australian Accounting Standards Board.”.
 
 
Dated this 21st day of April 2011
 
 
 
 
Signed by Stephen Yen PSM
as a delegate of the Australian Securities and Investments Commission