South Australian Consolidated Acts South Australian Consolidated Acts (1) In this
Part—
"asset" includes any form of property;
"associate"—see subsection (4);
"close personal relationship" means the relationship between 2 adult
persons (whether or not related by family and irrespective of their gender)
who live together as a couple on a genuine domestic basis, but does not
include—
(a) the
relationship between a legally married couple; or
(b) a
relationship where 1 of the persons provides the other with domestic support
or personal care (or both) for fee or reward, or on behalf of some other
person or an organisation of whatever kind;
Note—
Two persons may live together as a couple on a genuine domestic basis whether
or not a sexual relationship exists, or has ever existed, between them.
"constituent documents" of a private entity means—
(a) for
a private company—its constitution; or
(b) for
a unit trust scheme—the instruments constituting or governing the
administration of the scheme;
"corresponding law" means a law of another State, or a Territory, of the
Commonwealth that imposes duties corresponding to those imposed by this Act;
"direct interest"—see section 92(1);
"executive officer" of a company has the same meaning as in the Corporations
Act 2001 of the Commonwealth;
"group" means a group of associates;
"hold"—a person "holds" a share or unit in a private entity if the
person—
(a) is
registered as the holder; or
(b) is
beneficially entitled to the share or unit; or
(c)
controls the exercise of rights attached to the share or unit;
"indirect interest"—see section 92B;
"land asset" and "local land asset"—see section 91A;
"local primary production land asset" means a local land asset consisting of
an interest in land that is used for the business of primary production;
"notional interest"—see section 93;
"primary production entity"—a private entity is a primary
production entity if the unencumbered value of the entity's underlying local
primary production land assets exceeds 50 per cent of the unencumbered value
of its total underlying local land assets;
"private company" means—
(a) a
company that is limited by shares but whose shares are not quoted on a
recognised financial market; or
(b) a
company that is not limited by shares,
but does not include a company excluded from the ambit of this definition by
the regulations;
"private entity" means a private company or a private unit trust scheme;
"private trust" means a trust other than one in which the public is (or has
been) invited to invest;
"private unit trust scheme" means—
(a) a
unit trust scheme in which less than 50 persons hold units; or
(b) a
unit trust scheme in which 50 or more persons hold units if 20 or fewer
persons hold 75 per cent or more in number or value of the units on issue,
but does not include a unit trust scheme that is an approved deposit fund or a
pooled superannuation trust within the meaning of the Superannuation Industry
(Supervision) Act 1993 (Cwth);
"proportionate interest" in a private entity means—
(a) for
a person or group that has a direct or indirect interest in the
entity—the percentage representing the extent of that interest; or
(b) for
a person or group that has both a direct and an indirect interest in the
entity—an aggregate percentage representing the extent of both those
interests;
"related"—see section 92A;
"relative" of a person means a spouse, domestic partner, brother, sister,
parent or child of the person;
"significant interest" in a private entity means a proportionate interest in
the entity of 50 per cent or more;
"underlying"—the underlying assets (or a particular class of underlying
assets) of a private entity include both the assets (or assets of the relevant
class) held beneficially by the private entity and its notional interests in
the assets (or assets of the relevant class) of related entities;
"unit" in a unit trust scheme means—
(a) a
right to participate in profits, income or distribution of assets under the
scheme; or
(b) a
right to any such right of participation;
"unit trust scheme" means an arrangement under which investors may acquire
rights to participate, as beneficiaries under a trust, in profits, income or
distribution of assets arising from the acquisition, holding, management, use
or disposal of property;
"winding up"—a unit trust scheme is wound up if the assets subject to
the scheme are distributed in their entirety.
(2) Property is taken
to be held beneficially by a unit trust scheme if it is held by the trustees
of the scheme in trust for the unitholders.
(3) A private entity
or other person that is an object of a discretionary trust is to be regarded,
for the purposes of this Part, as beneficially entitled to the trust property
unless—
(a) the
private entity or other person satisfies the Commissioner that this subsection
operates unreasonably in the circumstances of the particular case; and
(b) the
Commissioner determines that the private entity or other person is not, in the
circumstances of the particular case, to be regarded as beneficially entitled
to the trust property.
(4) A person is an
"associate" of, or "associated" with, another if—
(a) they
are married or in a close personal relationship; or
(b) one
is the parent, child, brother or sister of the other; or
(c) they
are in partnership; or
(d) they
are private companies which are related bodies corporate for the purposes of
the Corporations Act 2001 of the Commonwealth; or
(e) one
is a private company and the other is a director or executive officer of, or
shareholder in, the company; or
(f) they
are both trustees of a private trust or one is a trustee of a private trust
and the other is a beneficiary of the private trust; or
(g) a
chain of relationships can be traced between them under one or more of the
above paragraphs,
(but a person is not to be regarded as an associate of another if the
Commissioner is satisfied that the association has not arisen as a result of a
common commercial interest or purpose and they will act entirely independently
of each other).
(5) An obligation or
liability imposed under this Part on a unit trust scheme attaches to the
trustees for the time being of the scheme jointly and severally.
(6) An obligation or
liability imposed under this Part on a group attaches to the members of the
group jointly and severally.