Corporations Act - Australia

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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 the information, the borrower must, within 14 days of the change, lodge with ASIC a notice containing the changed information.

      (3) A notice under subsection (1) or (2) must be in the prescribed form.

      283BCA Register relating to trustees for debenture holders

      The register

      (1) ASIC must establish and maintain a register relating to trustees for debenture holders.

      (2) The regulations may prescribe the way in which the register must be established or maintained, including the details that ASIC must enter in the register.

      Inspection of register

      (3) A person may inspect the register, and may make copies of, or take extracts from, the register.

      (4) The regulations may prescribe the fees that a person must pay ASIC to do the things mentioned in subsection (3).

      (5) Any disclosure necessary for the purposes of this section is authorised by this section.

      283BD Duty to replace trustee

      The borrower must take all reasonable steps to replace the trustee under section 283AE as soon as practicable after the borrower becomes aware that the trustee:

      (a) has ceased to exist; or

      (b) has not been validly appointed; or

      (c) cannot be a trustee under section 283AC; or

      (d) has failed or refused to act as trustee.

      283BE Duty to inform trustee about security interests

      If the borrower creates a security interest, it must:

      (a) give the trustee written details of the security interest within 21 days after it is created; and

      (b) if the total amount to be advanced on the security of the security interest is indeterminate and the advances are not merged in a current account with bankers, trade creditors or anyone else — give the trustee written details of the amount of each advance within 7 days after it is made.

      Note: If the advances are merged in a current account the borrower must give the trustee the details in the quarterly report (see subsection 283BF(4)).

      283BF Duty to give trustee and ASIC quarterly reports

      Quarterly reports

      (1) Within 1 month after the end of each quarter, the borrower must:

      (a) give the trustee a quarterly report that sets out the information required by subsections (4), (5) and (6); and

      (b) lodge a copy of the report with ASIC (see section 351).

      First quarter

      (2) The first quarter is the period of 3 months ending on a day fixed by the borrower, by written notice to the trustee. The day must be less than 6 months after the first issue of a debenture under the trust deed.

      Subsequent quarters

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