New South Wales Consolidated Regulations

CO-OPERATIVES REGULATION 2005 - SCHEDULE 3

SCHEDULE 3 – Modifications of Corporations Act

(Clauses 13 and 30)

Part 1 - Interpretation of modified provisions

1

The following definitions replace the corresponding definitions under the Corporations Act for the purpose of interpreting the applied provisions of the Corporations Act as modified by the Act and this Schedule:
"Act" means the Co-operatives Act 1992 (including applied provisions of the Corporations Act).
"applied provisions" means the provisions of the Corporations Act referred to in clauses 13 and 30 of this Regulation.
"ASIC" means the Registrar.
"audit company" means a company that consents to be appointed, or is appointed, as auditor of a co-operative.
"audit firm" means a firm that consents to be appointed, or is appointed, as auditor of a co-operative.
"audited body", in relation to the audit of a co-operative, means the co-operative in relation to which the audit is, or is to be, audited.
"consolidated entity" means a co-operative together with all the entities that the accounting standards require the co-operative to include in consolidated financial statements.
"Court" means the Supreme Court.
"debenture", in relation to a co-operative, has the same meaning as in the Act.
"director", in relation to a co-operative, has the same meaning as in the Act.
"disclosing entity" -see section 266 of the Act (which applies Part 1.2A of the Corporations Act).
"financial year" means a financial year of a co-operative as determined in accordance with section 248 of the Act.
"member" means member of a co-operative.
"officer", in relation to a co-operative, has the same meaning as in the Act.
"related body corporate" has the meaning given by clause 22 of Schedule 2 to the Act.

2

Expressions used in the applied provisions as modified by the Act and this Schedule that are not defined in the Corporations Act have the same meaning as in the Act.

3

The applied provisions apply as if all notes were omitted.

Part 2 - Modification of Corporations Act requirements for financial records and financial statements

Part 2D.1 - Duties and powers

[1] Section 198F

Omit “company” wherever occurring. Insert instead “co-operative”.

Part 2F.3 - Inspection of books

[2] Section 247A (1)

Omit “company or registered managed investment scheme”.
Insert instead “co-operative”.

[3] Section 247A (1) (a) and (b)

Omit “company or scheme” wherever occurring.
Insert instead “co-operative”.

[4] Section 247A (3) and (5)

Omit “section 237” wherever occurring.
Insert instead “section 105A of the Co-operatives Act 1992 ”.

[5] Section 247C

Omit “ASIC”. Insert instead “the Registrar or an officer”.

[6] Section 247D

Omit the section.

Part 2G.2 - Meetings of members of companies

[7] Sections 249K, 249V (1) and 250S (1)

Omit “company” wherever occurring. Insert instead “co-operative”.

[8] Section 250PA (3)

Omit “company” where secondly, thirdly and fourthly occurring.
Insert instead “co-operative”.

[9] Sections 249V (1), 250RA (1) (a) and 250T

Omit “company’s” wherever occurring. Insert instead “co-operative’s”.

[10] Sections 250PA and 250T (4)

Omit “listed company” wherever occurring. Insert instead “co-operative”.

[11] Section 250RA

Omit “listed company’s” wherever occurring. Insert instead “co-operative’s”.

Part 2M.2 - Financial records

[12] Sections 286 (1) and 290 (1)

Omit “company, registered scheme or disclosing entity” wherever occurring.
Insert instead “co-operative”.

[13] Section 287 (2A)

Insert after section 287 (2):

(2A) An inspector may, by notice in writing, specify a period within which the translation must be made available to the inspector.

[14] Section 288 (1A)

Insert after section 288 (1):

(1A) An inspector may, by notice in writing, specify a period within which the hard copy must be made available to the inspector.

[15] Section 289

Omit the section. Insert instead:

289 Place where records are kept The financial records must be kept within New South Wales but the co-operative may decide where within New South Wales to keep them.

[16] Section 291

Omit the section.

Part 2M.3 - Financial reporting

[17] Section 292

Omit the section. Insert instead:

292 Who has to prepare annual financial reports and directors’ reports A financial report and a directors’ report must be prepared for each financial year by all co-operatives.

[18] Sections 293 and 294

Omit the sections.

[19] Section 295 (2)

Omit the subsection. Insert instead:

(2) The financial statements for the year are:

(a) the income statement for the year, and

(b) the balance sheet at the end of the year, and

(c) the cash flow statement for the year, and

(d) if required by the accounting standards-a consolidated income statement, balance sheet and cash flow statement.

[20] Sections 295 (4) (c), 297 (a), 298 (1), 299 (2) (a) and (3) (a), 300 (1) (c) and (ca) and (3) (a), 301 (1), 307 (c) and (d), 310 (a), 312, 314 (1), (4) and (5), 316 (1), 322 (2), 323, 323A (2), 323B, 323C and 323D (1), (3) and (5)

Omit “company, registered scheme or disclosing entity” wherever occurring.
Insert instead “co-operative”.

[21] Sections 295A

Omit “company, disclosing entity or registered scheme” wherever occurring.
Insert instead “co-operative”.

[22] Sections 295A (6) (b) (ii) and (7) (b) (ii), 300 (1) (d) (ii), (2), (2A), (9) (d) and (e) and (11) and 300A (1) (a)-(c)

Omit “company” and “company’s” wherever occurring.
Insert instead “co-operative” and “co-operative’s”, respectively.

[23] Section 296 (1)

Omit the second sentence.

[24] Section 298 (3)

Omit the subsection.

[25] Sections 299 (3) (b) and 300 (3) (b)

Omit “company, registered scheme or disclosing entity” wherever occurring.
Insert instead “co-operative, company or registered scheme”.

[26] Section 300 (1)

Omit the last sentence.
Insert instead “Co-operatives with listed securities must include additional information under subsections (10), (11), (11A) and (11B) of this section and section 300A.”

[27] Section 300 (5) (a), (6) (a) and (e), and 7 (a) and (c)

Omit “company, registered scheme or disclosing entity” wherever occurring.
Insert instead “entity”.

[28] Section 300 (8)

Omit the subsection. Insert instead:

(8) The report for a co-operative must include details of:

(a) any indemnity that is given to a current or former officer or auditor against a liability, or any relevant agreement under which an officer or auditor may be given an indemnity, and

(b) any premium that is paid, or agreed to be paid, for insurance against a current or former officer’s or auditor’s liability.

For the purposes of this subsection, "officer" has the same meaning as in Division 2 of Part 9 of the Co-operatives Act 1992 .

[29] Section 300 (10)

Omit “public company that is not a wholly-owned subsidiary of another company”.
Insert instead “co-operative that is not a wholly-owned subsidiary of another co-operative”.

[30] Section 300 (12) and (13)

Omit the subsections.

[31] Section 300 (14) and (15)

Omit “section 237” wherever occurring.
Insert instead “section 105A of the Co-operatives Act 1992 ”.

[32] Section 300A (1)

Omit “company” where first occurring.
Insert instead “co-operative that is included in an official list of the Exchange”.

[33] Section 300A (2)

Omit the subsection.

[34] Section 300A (3)

Omit “company’s constitution”. Insert instead “co-operative’s rules”.

[35] Section 301 (2)

Omit the subsection.

[36] Sections 302 and 320

Omit “A disclosing entity” wherever occurring.
Insert instead “A co-operative that is a disclosing entity”.

[37] Sections 302 (c), 311 and 320

Omit “ASIC” wherever occurring. Insert instead “the Registrar”.

[38] Section 307 (d)

Omit the paragraph. Insert instead:

(d) whether the co-operative has kept registers as required by section 249 of the Co-operatives Act 1992 and other records as required by that Act (including any applied provisions of the Corporations Act).

[39] Sections 312 (a) and 323B (a)

Omit “company, scheme or entity”. Insert instead “co-operative”.

[40] Section 314 (1)

Omit “either”.

[41] Section 314 (1) (c)

Insert at the end of section 314 (1) (b):

, or

(c) in the case of a non-trading co-operative:

(i) giving members notice:

(A) that the reports referred to in paragraph (a) may be inspected at the registered office of the co-operative, or

(B) that a concise report of the kind referred to in paragraph (b) may be inspected at the registered office of the co-operative, and

(ii) making the report or reports (as the case requires) available for inspection.

[42] Section 315

Omit the section. Insert instead:

315 Deadline for reporting to members A co-operative must report to members under section 314 by the earlier of:

(a) 21 days before the next AGM after the end of the financial year, or

(b) 21 days less than 5 months after the end of the financial year.

[43] Section 316 (1A)

Insert after section 316 (1):

(1A) Subsection (1) (b) does not apply to a member of a non-trading co-operative.

[44] Section 317

Omit “public company”. Insert instead “co-operative”.

[45] Section 318 (1) and (2)

Omit “company or disclosing entity” wherever occurring.
Insert instead “co-operative”.

[46] Section 318 (1) and (4)

Insert “prescribed” before “debenture holders” wherever occurring.

[47] Section 318 (2)

Insert “prescribed” before “debenture holder”.

[48] Section 318 (2) (a)

Insert “or made available” after “sent”.

[49] Section 318 (3)

Omit the subsection. Insert instead:

(3) The co-operative must, as soon as practicable after the request:

(a) if the terms of the debenture issue so provide-make the copies available for inspection free of charge at the registered office of the co-operative, or

(b) in any other case-give the prescribed debenture holder the copies free of charge.

[50] Section 318 (6)

Insert after section 318 (5):

(6) In this section, "prescribed debenture holder" means a person who holds debentures or CCUs of a co-operative but is not a member of the co-operative.

[51] Part 2M.3, Division 5, heading

Omit “ASIC”. Insert instead “Registrar”.

[52] Section 319

Omit the section. Insert instead:

319 Lodgment of annual reports with Registrar A co-operative that has to prepare or obtain a report for a financial year under the Co-operatives Act 1992 (including any applied provisions of the Corporations Act) must include in its annual report to the Registrar for that year a copy of each such report.

[53] Section 321 (1)

Omit the subsection. Insert instead:

(1) The Registrar may give a co-operative a direction to lodge with the Registrar a copy of reports prepared or obtained by it under Division 1 or 2.

[54] Section 322 (1)

Omit the subsection. Insert instead:

(1) If a financial report or directors’ report is amended after it is lodged with the Registrar, the co-operative must:

(a) lodge the amended report with the Registrar within 14 days after the amendment, and

(b) in the case of a non-trading co-operative-make a copy of the amended report available for inspection at the registered office of the co-operative and inform any member who asks, of its availability, and

(c) in any other case-give a copy of the amended report free of charge to any member who asks for it.

[55] Section 322 (2) (b)

Insert “inspect or” before “obtain”.

[56] Section 323D (1) and (2)

Omit the subsections.

[57] Part 2M.3, Division 8 (section 323DA)

Omit the Division.

Part 2M.4 - Appointment and removal of auditor

[58] Sections 324AA-324DC (other than section 324BD)

Omit “company or registered scheme” wherever occurring.
Insert instead “co-operative”.

[59] Sections 324AB (2), 324CM (1) (c), (2) (c) and (3) (f)

Omit “company or scheme”. Insert instead “co-operative”.

[60] Section 324BD

Omit the section.

[61] Section 324CD (2)

Omit the subsection. Insert instead:

(2) Without limiting subsection (1), have regard to circumstances arising from any relationship that exists, has existed, or is likely to exist, between:

(a) the individual auditor, or

(b) the audit firm or any current or former member of the firm, or

(c) the audit company, any current or former director of the audit company or any person currently or formerly involved in the management of the audit company,

and any of the following persons and bodies:

(d) the co-operative, or

(e) a current or former director of the co-operative, or

(f) a person currently or formerly involved in the management of the co-operative.

[62] Section 324CH

Omit “This item does not apply if the audited body is a small proprietary company for the relevant financial year.” wherever occurring in the table that follows section 324CH (1).

[63] Section 324CH (2)

Omit the subsection.

[64] Section 324CH (3)

Omit “(other than a registered scheme)”.

[65] Sections 324CI (d), 324CJ (d) and 324CK (d)

Omit “and” wherever occurring.

[66] Sections 324CI (e), 324CJ (e) and 324CK (e)

Omit the paragraphs.

[67] Sections 324CI, 324CJ and 324CK

Omit “(other than a registered scheme)”.

[68] Section 324CL

Omit “company” wherever occurring. Insert instead “co-operative”.

[69] Part 2M.4, Division 5 (sections 324DA-324DD)

Omit “listed company or listed registered scheme”, “the company or the scheme”, “company or scheme”, “listed company’s or listed registered scheme’s” and “company’s or scheme’s” wherever occurring.
Insert instead “co-operative with listed securities”, “the co-operative”, “co-operative”, “co-operative with listed securities’s” and “co-operative’s” respectively.

[70] Section 325

Omit the section.

[71] Sections 327A-327F

Omit “public company” wherever occurring. Insert instead “co-operative”.

[72] Section 327A (4)

Insert after section 327A (3):

(4) The co-operative must give the Registrar written notice of an appointment under this section within 28 days of the appointment.

[73] Section 327B (5)

Insert after section 327B (4):

(5) The co-operative must give the Registrar written notice of an appointment under this section within 28 days of the appointment.

[74] Sections 327A-331 (other than sections 327H, 328A and 329 (1A))

Omit “the company”, “a company”, “the company’s” and “The company” wherever occurring.
Insert instead “the co-operative”, “a co-operative”, “the co-operative’s” and “The co-operative” respectively.

[75] Section 327H

Omit the section.

[76] Section 328A (1) and (4)

Omit “company, the directors of a company or the responsible entity of a registered scheme” wherever occurring.
Insert instead “co-operative or the directors of a co-operative”.

[77] Section 328A (1)

Omit “auditor of the company”. Insert instead “auditor of the co-operative”.

[78] Section 328A (1)

Omit “the company, the directors or the responsible entity of the scheme”.
Insert instead “the co-operative or the directors of the co-operative”.

[79] Section 328A (4)

Omit “auditor of a company”. Insert instead “auditor of a co-operative”.

[80] Section 328A (4) (b)

Omit “company or responsible entity” wherever occurring.
Insert instead “co-operative”.

[81] Section 329 (1B)

Insert after section 329 (1A):

(1B) At least 21 days notice must be given of a meeting of a co-operative at which a resolution will be moved to remove an auditor under section 329 of the Corporations Act (being an applied provision).

[82] Section 329 (8)

Omit “Subject to subsection (9), the”. Insert instead “The”.

[83] Section 329 (9)

Omit the subsection.

[84] Section 329 (11) (c)

Omit “prescribed form”. Insert instead “form approved by the Registrar”.

[85] Section 330

Omit the section. Insert instead:

330 Effect of winding up on office of auditor An auditor of a co-operative ceases to hold office if:

(a) a special resolution is passed in accordance with section 189 of the Co-operatives Act 1992 for the voluntary winding up of the co-operative, or

(b) a certificate is issued by the Registrar for the winding up of the co-operative, or

(c) an order is made by the Court for the winding up of the co-operative.

[86] Part 2M.4, Division 7 (sections 331AAA-331AE)

Omit the Division.

Part 2M.7 - Sanctions for contraventions of Chapter

[87] Section 344 (1)

Omit “company, registered scheme or disclosing entity”.
Insert instead “co-operative”.