CORPORATIONS ACT 2001 - SECT 1233J When an allocation determination is required

CORPORATIONS ACT 2001 - SECT 1233J

  (1)   This section applies if money or property acquired by a CCIV in a single transaction does not become wholly part of the assets of a single sub - fund of the CCIV under section   1233H.

  (2)   The corporate director must determine (whether in the CCIV's allocation register or otherwise in writing) the proportion (including nil) of the money or property that is to be allocated to each sub - fund of the CCIV.

Requirements for determination

  (3)   The determination:

  (a)   must be fair and reasonable in the circumstances and having regard to section   1233H; and

  (b)   must result in the money or property being wholly allocated; and

  (c)   must be made as soon as practicable after the money or property is acquired.

When the determination is operative

  (4)   If the determination is one that a reasonable person in the corporate director's position could make, the determination is operative from the time the money or property is acquired, which may be earlier than the time at which the determination is made.

  (5)   A determination under this section is irrevocable.

Fault - based offence

  (6)   A person commits an offence if:

  (a)   the person is subject to a requirement under this section; and

  (b)   the person fails to comply with the requirement.

Determinations during winding up and controllership

  (7)   Subsection   (2) does not apply if all of the CCIV's sub - funds are being wound up.

  (8)   Despite subsection   13.3(3) of the Criminal Code , in a prosecution for an offence based on subsection   (6) of this section, a defendant does not bear an evidential burden in relation to the matter in subsection   (7).

  (9)   A liquidator of a sub - fund of a CCIV, or a receiver of property of a sub - fund of a CCIV, may not make a determination under this section.

Note:   A liquidator may apply to the Court for an order under section   1233Q.