New South Wales Consolidated Acts

TRUSTEE COMPANIES ACT 1964 - SECT 31A

31A Restriction on acquisition of shares

(1) Except as provided by this Act, a person shall not, either alone or together with another person or other persons, acquire shares in a trustee company if any person who is not entitled to any voting shares in the trustee company or is entitled to less than the prescribed percentage of the voting shares in the trustee company would, immediately after the acquisition, be entitled to more than the prescribed percentage of the voting shares in the trustee company.

(2) Except as provided by this Act, a person shall not, either alone or together with another person or other persons, acquire shares in a trustee company if any person (in this subsection referred to as a "relevant person") who is entitled to not less than the prescribed percentage of the voting shares in the trustee company would, immediately after the acquisition, be entitled to a greater percentage of the voting shares in the trustee company than the percentage to which that relevant person was entitled immediately before the acquisition.

(3) Notwithstanding subsections (1) and (2), a person shall not, either alone or together with another person or other persons, acquire shares in a trustee company where the prescribed percentage of voting shares in the trustee company is more than 20 per cent if:

(a) any person who is not entitled to any voting shares in the trustee company or is entitled to less than 20 per cent of the voting shares in the trustee company would, immediately after the acquisition, be entitled to more than 20 per cent of the voting shares in the trustee company, or

(b) any person (in this paragraph referred to as a "relevant person") who is entitled to not less than 20 per cent, but less than 90 per cent, of the voting shares in the trustee company would, immediately after the acquisition, be entitled to a greater percentage of the number of voting shares in the trustee company than the percentage to which that relevant person was entitled immediately before the acquisition,

unless:

(c) before the acquisition takes place, the Minister, pursuant to an application made as prescribed, gives approval in writing to the acquisition and, where that approval is subject to conditions, those conditions are complied with,

(d) the acquisition is made as a result of the acceptance of offers to acquire those shares made under a takeover bid in relation to that trustee company in accordance with the Corporations Act 2001 of the Commonwealth, and

(e) after the acquisition takes place, a person acquiring the shares is not entitled to more than the prescribed percentage of voting shares in the trustee company.

(4) A person shall not offer to acquire, or issue an invitation in relation to, shares in a trustee company if the person is prohibited by subsection (1), (2) or (3) from acquiring those shares.

(5) Where, by reason of the acquisition by a person (whether alone or together with another person or other persons) of shares in a trustee company:

(a) any person who was not entitled to any voting shares in the trustee company or was entitled to less than the statutory percentage of the voting shares in the trustee company becomes, immediately after the acquisition, entitled to more than the statutory percentage of the voting shares in the trustee company, or

(b) any person (in this paragraph referred to as a "relevant person") who was entitled to not less than the statutory percentage of the voting shares in the trustee company becomes, immediately after the acquisition, entitled to a greater percentage of the voting shares in the trustee company than the percentage to which that relevant person was entitled immediately before the acquisition,

the firstmentioned person shall, within 2 days after the acquisition, cause notice to be given to the Minister, in the prescribed manner and form, of the acquisition.

(6) A reference in subsection (5) to the statutory percentage of voting shares in a trustee company:

(a) is, where no authorisation is provided as referred to in paragraph (b), a reference to the prescribed percentage of voting shares in the trustee company, or

(b) is a reference to the percentage that would, but for an authorisation provided, for the purposes of subsection (12), by the articles of association of the trustee company, be the prescribed percentage of voting shares in the trustee company,

as the case may require.

(7) A person who contravenes subsection (1), (2), (3) or (4), or who fails to comply with subsection (5), is guilty of an offence and liable to a penalty not exceeding 20 penalty units.

(8) The Minister may request the Commission to prepare a report on an application for approval under subsection (3) (c).

(9) It is a defence to a prosecution for a contravention of this section if the defendant establishes that the contravention was due to a mistake of fact on the part of the defendant or to the defendant’s not being aware of a relevant fact or occurrence.

(10) An acquisition of shares is not invalid by reason of a contravention of this section.

(11) A provision in the articles of association of a trustee company that applies or purports to apply the provisions of subsection (1) or (2) as if the reference to the prescribed percentage were a reference to a lesser percentage is void.

(12) A reference in this section to the prescribed percentage of voting shares in a trustee company is a reference to:

(a) 10 per cent or, where a higher percentage is prescribed by regulations in force for the time being for the purposes of this subsection, that higher percentage, or

(b) where the articles of association of the trustee company authorise a higher percentage for the purposes of this subsection-that higher percentage,

whichever is the greater.

(13) A reference in this section to 20 per cent shall, where a lesser percentage is prescribed by regulations in force for the time being for the purposes of this subsection, be deemed to be a reference to that lesser percentage.

(14) A reference in this section to a trustee company is a reference to a trustee company that is a company within the meaning of the Corporations Act 2001 of the Commonwealth that is taken to be registered in New South Wales for the purposes of that Act.

(15) Despite any provision of this or any other Act or law, this section does not apply to an acquisition of shares by a trustee company in itself or that results in a trustee company acquiring shares in itself.

(16) Subsection (15) applies to any acquisition of shares whether occurring before or after the commencement of that subsection. A person is not guilty of an offence under this section in respect of any acquisition of shares in a trustee company, as referred to in that subsection, that occurred before that commencement.