Corporations Act - Australia

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meeting of debenture holders if:

      (a) debenture holders who together hold 10 % or more of the nominal value of the issued debentures to which the trust relates direct the borrower to do so; and

      (b) the direction is given to the borrower in writing at its registered office; and

      (c) the purpose of the meeting is to:

      (i) consider the financial statements that were laid before the last AGM of the borrower; or

      (ii) give the trustee directions in relation to the exercise of any of its powers.

      Note: The trustee usually must comply with any directions given to it by the debenture holders at the meeting (see paragraph 283DA(h)).

      Duty to give notification of meeting

      (2) If the borrower is required to call a meeting, it must give notice of the time and place of the meeting to:

      (a) the trustee; and

      (b) the borrower’s auditor; and

      (c) each of the debenture holders whose names are entered on the register of debenture holders.

      Notice to joint holders of a debenture must be given to the joint holder named first in the register of debenture holders.

      (3) The borrower may give the notice to a debenture holder:

      (a) personally; or

      (b) by sending it by post to the address for the debenture holder in the register of debenture holders; or

      (c) by sending it to the fax number or electronic address (if any) nominated by the debenture holder; or

      (d) by any other means that the trust deed or the terms of the debentures permit.

      Note: A defect in the notice may not invalidate a meeting (see section 1322).

      When notice by post or fax is given

      (4) A notice of meeting sent to a debenture holder is taken to be given:

      (a) 3 days after it is posted, if it is posted; or

      (b) on the business day after it is sent, if it is sent by fax or other electronic means;

      unless the trust deed or the terms of the debentures provide otherwise.

      283EB Trustee’s power to call meeting

      Trustee may call meeting in event of breach

      (1) If the borrower or a guarantor fails to remedy any breach of the terms of the debentures or provisions of the trust deed or this Chapter when required by the trustee, the trustee may:

      (a) call a meeting of debenture holders; and

      (b) inform the debenture holders of the failure at the meeting; and

      (c) submit proposals for protection of the debenture holders’ interests to the meeting; and

      (d) ask for directions from the debenture holders in relation to the matter.

      Trustee may appoint person to chair meeting

      (2) The trustee may appoint a person to chair a meeting of debenture holders called under subsection (1). If the trustee does not exercise this power, the debenture holders present at the meeting may appoint a person to chair the meeting.

      283EC Court may order meeting

      (1) Without limiting section 283HA or 283HB, the Court may make an order under either of those sections for a meeting of all or any of the debenture holders to be held to give directions to the trustee. The order may direct the trustee to:

      (a) place before the debenture holders any information concerning their interests; and

      (b) place before the debenture holders any proposals to protect their interests that the Court directs or the trustee considers appropriate; and

      (c) obtain the debenture holders’ directions concerning the protection of their interests.

      (2) The meeting is to be held and conducted in the manner the Court directs. The trustee may appoint a person to chair the meeting. If the trustee does not exercise this power, the debenture holders present at the meeting may appoint a person to chair the meeting.

      Part 2L.6 — Civil liability

      283F Civil liability for contravening this Chapter

      (1) A person who suffers loss or damage because a person contravenes a provision of this Chapter may recover the amount of the loss or damage from:

      (a) the person who contravened the provision; or

      (b) a person involved in the contravention.

      This is so even if the person did not commit, and was not involved in, the contravention.

      (2) An action under subsection (1) may begin at any time within 6 years after the day on which the cause of action arose.

      (3) This Part does not affect any liability that a person has under any other law.

      Part 2L.7 — ASIC powers

      283GA ASIC’s power to exempt and modify

      (1) ASIC may:

      (a) exempt a person from a provision of this Chapter; or

      (b) declare that this Chapter applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.

      (2) The exemption or declaration may do all or any of the following:

      (a) apply to all or specified provisions of this Chapter;

      (b) apply to all persons, specified persons, or a specified class of persons;

      (c) relate to all debentures, specified debentures or a specified class of debentures;

      (d) relate to any other matter generally or as specified.

      (3) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.

      (4) The exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette.

      (5) For the purposes of this section, the provisions of this Chapter include:

      (a) regulations made for the purposes of this Chapter; and

      (b) definitions in this Act or the regulations as they apply to references in:

      (i) this Chapter; or

      (ii) regulations made for the purposes of this Chapter; and

      (c) the old Division 12 of Part 11.2 transitionals.

      283GB ASIC may approve body corporate to be trustee

      (1) ASIC may approve a body corporate in writing to be a trustee for the purposes of paragraph 283AC(1)(f). The approval may allow the body corporate to act as trustee:

      (a) in any circumstances; or

      (b) in relation to a particular borrower or particular class of borrower; or

      (c) in relation to a particular trust deed;

      and may be given subject to conditions.

      (2) ASIC must publish notice of the approval in the Gazette.

      Part 2L.8 — Court

      283HA General Court power to give directions and determine questions

      If the trustee applies to the Court for any direction

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