Corporations Act 2001

ASIC may, in writing, make a determination (a transfer determination) that there is to be a transfer of estate assets and liabilities from a specified company (the transferring company) to another specified company (the receiving company) if:

ASIC has under Part 7.6 cancelled the transferring company’s Australian financial services licence or varied the conditions of the transferring company’s Australian financial services licence so that the licence ceases to cover traditional trustee company services (the determination is a compulsory transfer determination); or

the transferring company has applied in the prescribed form for a determination (the determination is a voluntary transfer determination).

ASIC may make a transfer determination only if:

for a compulsory transfer determination—the receiving company is a licensed trustee company or the Public Trustee of a State or Territory; and

for a voluntary transfer determination:

the transferring company is a licensed trustee company or a company that was previously authorised as a trustee company under a law of a State or Territory; and

the receiving company is a licensed trustee company; and

either:

the Minister has consented to the transfer; or

the Minister’s consent to the transfer is not required (see section 601WBD); and

ASIC is satisfied that:

the transfer is in the interests of clients of the transferring company (when viewed as a group); and

unless the receiving company is a Public Trustee—the transfer is in the interests of clients of the receiving company (when viewed as a group); and

the board of the receiving company has consented to the transfer; and

legislation to facilitate the transfer that satisfies the requirements of section 601WBC has been enacted in the State or Territory in which the transferring company is registered and the State or Territory in which the receiving company is registered or of which it is the Public Trustee.

Even if the Public Trustee of a State or Territory is not a company:

the Public Trustee may still be specified as a receiving company for the purposes of a compulsory transfer determination; and

references in this Part (however expressed) to:

a company; or

the board of a company;

The determination must include particulars of the transfer, including:

the names of the transferring company and the receiving company; and

for a compulsory transfer determination—whether it will be a total transfer or a partial transfer of the transferring company’s estate assets and liabilities; and

if it will be a partial transfer—an indication of the part of the transferring company’s estate assets and liabilities that is to be transferred; and

for a voluntary transfer determination—that it will be a total transfer of the transferring company’s estate assets and liabilities.

The determination must include a statement of the reasons why the determination has been made.

The determination is not a legislative instrument.