Corporations Act. Australia
to determine any question in relation to the interests of the debenture holders, the Court may give any direction and make any declaration or determination in relation to the matter that the Court considers appropriate. The Court may also make ancillary or consequential orders.
Note: Under this section, the Court may order a meeting of debenture holders to be held, see section 283EC.
283HB Specific Court powers
(1) If the trustee or ASIC applies to the Court, the Court may make any or all of the following orders:
(a) an order staying an action or other civil proceedings before a court by or against the borrower or a guarantor body;
(b) an order restraining the borrower from paying any money to the debenture holders or any holders of any other class of debentures;
(c) an order that any security for the debentures be enforceable immediately or at the time the Court directs (even if the debentures are irredeemable or redeemable only on the happening of a contingency);
(d) an order appointing a receiver of any property constituting security for the debentures;
(e) an order restricting advertising by the borrower for deposits or loans;
(f) an order restricting borrowing by the borrower;
(g) any other order that the Court considers appropriate to protect the interests of existing or prospective debenture holders.
(2) In deciding whether to make an order under subsection (1), the Court must have regard to:
(a) the ability of the borrower and each guarantor to repay the amount deposited or lent as and when it becomes due; and
(b) any contravention of section 283GA by the borrower; and
(c) the interests of the borrower’s members and creditors; and
(d) the interests of the members of each of the guarantors.
Note: The Court may order a meeting of debenture holders to be held (see section 283EC).
Part 2L.9 — Location of other debenture provisions
283I Signpost to other debenture provisions
There are other rules relating to debentures in paragraph 124(1)(b) and section 563AAA.
Chapter 2M — Financial reports and audit
Part 2M.1 — Overview
285 Overview of obligations under this Chapter
Obligations under this Chapter
(1) Under this Chapter, all companies, registered schemes and disclosing entities must keep financial records (see sections
286‑291) — and some must prepare financial reports (see sections 292‑323D). All those that have to prepare financial reports have to prepare them annually; disclosing entities have to prepare half‑year financial reports as well. The following table sets out what is involved in annual financial reporting:
Annual financial reporting
steps
sections
comments
1
prepare financial report
s. 295
The financial report includes:
• financial statements
• disclosures and notes
• directors’ declaration.
2
prepare directors’ report
s. 298
Unless the report relates to a company limited by guarantee, it has a general component (sections 299 and 299A), a specific component (section 300) and a special component for listed companies (section 300A). See section 285A for an overview of the obligations of companies limited by guarantee.
3
have the financial report audited and obtain auditor’s report
s. 301, 307, 308
A small proprietary company preparing a financial report in response to a shareholder direction under s. 293 only has to have an audit if the direction asks for it.
There are similar rules for companies limited by guarantee (see section 285A for an overview).
Under s. 312, officers must assist the auditor in the conduct of the audit.
ASIC may use its exemption powers under s. 340 and 341 to relieve large proprietary companies from the audit requirements in appropriate cases (s. 342(2) and (3)).
4
provide the financial report, directors’ report and auditor’s report to members
s. 314
Unless the report relates to a company limited by guarantee, a concise financial report may be provided to members instead of the full financial statements (subsections 314(1) and (2)). For deadline, see subsections 315(1) to (4). See section 285A for an overview of the obligations of companies limited by guarantee.
5
lodge the financial report, directors’ report and auditor’s report with ASIC
s. 319
For deadline see s. 319(3).
Companies that have the benefit of the grandfathering in the relevant Part 10.1 transitionals do not have to lodge.
6
[public companies only] lay financial report, directors’ report and auditor’s report before AGM
s. 317
For the AGM deadline see s. 250N.
Application to disclosing entities
(2) This Chapter covers all disclosing entities:
(a) incorporated or formed in Australia; and
(b) whether or not they are companies or registered schemes.
Application to registered schemes
(3) For the purposes of applying this Chapter to a registered scheme:
(a) the scheme’s responsible entity is responsible for the performance of obligations in respect of the scheme; and
(b) the directors and officers of the responsible entity are taken to be the directors and officers of the scheme; and
(c) the debts incurred in operating the scheme are taken to be the debts of the scheme.
285A Overview of obligations of companies limited by guarantee
The following table sets out what is involved in annual financial reporting for companies limited by guarantee:
Annual financial reporting for companies limited by guarantee
Item
Nature of company
Obligations
Sections
1