Corporations Act - Australia

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are to be calculated for the purposes of this section in accordance with accounting standards in force at the relevant time (even if the standard does not otherwise apply to the financial year of some or all of the companies concerned).

      Division 6 — Subsidiaries and related bodies corporate

      46 What is a subsidiary

      A body corporate (in this section called the first body) is a subsidiary of another body corporate if, and only if:

      (a) the other body:

      (i) controls the composition of the first body’s board; or

      (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 body; or

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

      (b) the first body is a subsidiary of a subsidiary of the other body.

      47 Control of a body corporate’s board

      Without limiting by implication the circumstances in which the composition of a body corporate’s board is taken to be controlled by another body corporate, the composition of the board is taken to be so controlled if the other body, by exercising a power exercisable (whether with or without the consent or concurrence of any other person) by it, can appoint or remove all, or the majority, of the directors of the first‑mentioned body, and, for the purposes of this Division, the other body is taken to have power to make such an appointment if:

      (a) a person cannot be appointed as a director of the first‑mentioned body without the exercise by the other body of such a power in the person’s favour; or

      (b) a person’s appointment as a director of the first‑mentioned body follows necessarily from the person being a director or other officer of the other body.

      48 Matters to be disregarded

      (1) This section applies for the purposes of determining whether a body corporate (in this section called the first body) is a subsidiary of another body corporate.

      (2) Any shares held, or power exercisable, by the other body in a fiduciary capacity are treated as not held or exercisable by it.

      (3) Subject to subsections (4) and (5), any shares held, or power exercisable:

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

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

      are treated as held or exercisable by the other body.

      (4) Any shares held, or power exercisable, by a person by virtue of the provisions of debentures of the first body, or of a trust deed for securing an issue of such debentures, are to be disregarded.

      (5) Any shares held, or power exercisable, otherwise than as mentioned in subsection (4), by, or by a nominee for, the other body or a subsidiary of it are to be treated as not held or exercisable by the other body if:

      (a) the ordinary business of the other body or that subsidiary, as the case may be, includes lending money; and

      (b) the shares are held, or the power is exercisable, only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with lending money, not being a transaction entered into with an associate of the other body, or of that subsidiary, as the case may be.

      49 References in this Division to a subsidiary

      A reference in paragraph 46(b) or 48(3)(b) or subsection 48(5) to being a subsidiary, or to a subsidiary, of a body corporate includes a reference to being a subsidiary, or to a body corporate that is a subsidiary, as the case may be, of the first‑mentioned body by virtue of any other application or applications of this Division.

      50 Related bodies corporate

      Where a body corporate is:

      (a) a holding company of another body corporate; or

      (b) a subsidiary of another body corporate; or

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

      the first‑mentioned body and the other body are related to each other.

      50AAA Associated entities

      (1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

      (2) This subsection is satisfied if the associate and the principal are related bodies corporate.

      (3) This subsection is satisfied if the principal controls the associate.

      (4) This subsection is satisfied if:

      (a) the associate controls the principal; and

      (b) the operations, resources or affairs of the principal are material to the associate.

      (5) This subsection is satisfied if:

      (a) the associate has a qualifying investment (see subsection (8)) in the principal; and

      (b) the associate has significant influence over the principal; and

      (c) the interest is material to the associate.

      (6) This subsection is satisfied if:

      (a) the principal has a qualifying investment (see subsection (8)) in the associate; and

      (b) the principal has significant influence over the associate; and

      (c) the interest is material to the principal.

      (7) This subsection is satisfied if:

      (a) an entity (the third entity) controls both the principal and the associate; and

      (b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

      (8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

      (a) has an asset that is an investment in the second entity; or

      (b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

      50AA Control

      (1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

      (2) In determining whether the first entity has this capacity:

      (a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

      (b) any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

      (3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

      (4) If the first entity:

      (a) has the capacity to influence decisions about the second entity’s financial and operating policies; and

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