Tag: ASIC

Managed Investment Scheme

A “managed investment scheme” can be defined as a scheme where people (we expect these to be primarily Class Action Members) contribute money or money’s worth to acquire rights to benefits produced by the scheme. Any contributions made are pooled or used in a common enterprise (litigation, funded by external litigation funders) to produce financial benefits for the members of the scheme but the members do not have control over the day-to-day operation of the scheme… The definition of managed investment scheme is set out in s 9 of the Corporations Act and is subject to specific exclusions.

Therefore, to be a managed investment scheme, each of the following elements must exist:

  • it must be a “scheme”
  • it must involve a contribution of money or money’s worth to acquire rights to benefits
  • the contributions are to be pooled or used in a common enterprise to produce benefits for the scheme members and
  • the members do not have day-to-day control over the scheme.

It is the practice of the courts to consider each element of the definition separately, and require that all elements be present for the arrangement to be considered a managed investment scheme.

 

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What is a liquidator?

Mark Smith

A liquidator is a person appointed, in the winding up of a corporation, to assume control of the company’s affairs and to discharge its liabilities in preparation for its dissolution.  The appointment of a liquidator may be done voluntarily (by the proprietors) or via the courts (usually upon the application of a creditor – very often the ATO using a creditors statutory demand).

The process of the liquidator conducting the affairs of the company and realising its assets is called liquidation.

The liquidator’s role is to ascertain the liabilities (and assets) of the company, convert its assets into money, terminate its contracts, dispose of its business, distribute the net assets to creditors and any surplus (which is rare) to the shareholders and/or proprietors.

The liquidator will extinguish the company, lawfully, as a corporation on the records of ASIC by formal dissolution.

In determining the assets of a company, it is the liquidator’s duty to determine whether particular assets under the company’s control are owned by the company or others – i.e. stock may be purchased subject to a retention of title, vehicles may be on a corporate hire purchase and secured via a PPSR.

BAP can assist company directors to structure their assets and affairs, if not insolvent, in such a fashion to provide lawful asset protection.  To discuss how we can help to structure your company’s affairs and assets to provide maximum asset protection, please click here to book an appointment, call 1300-327123 (1300-DCP123), or complete the below form.

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Thanks, Mark Smith, Director