Corporations Act. Australia
anything else in this Part, this section applies for the purposes of interpreting a reference to an associate (the associate reference), in relation to a designated body, if:
(a) the reference occurs in a provision of Chapter 6, 6A, 6B or 6C; or
(b) the reference occurs in a provision outside those Chapters that relates to any of the following matters:
(i) the extent, or restriction, of a power to exercise, or to control the exercise of, the votes attached to voting shares in the designated body;
(ii) the primary person’s voting power in the designated body;
(iii) relevant interests in securities in the designated body;
(iv) a substantial holding in the designated body;
(v) a takeover bid for securities in the designated body;
(vi) the compulsory acquisition, or compulsory buy‑out, of securities in the designated body.
(2) For the purposes of the application of the associate reference in relation to the designated body, a person (the second person) is an associate of the primary person if, and only if, one or more of the following paragraphs applies:
(a) the primary person is a body corporate and the second person is:
(i) a body corporate the primary person controls; or
(ii) a body corporate that controls the primary person; or
(iii) a body corporate that is controlled by an entity that controls the primary person;
(b) the second person is a person with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the designated body’s board or the conduct of the designated body’s affairs;
(c) the second person is a person with whom the primary person is acting, or proposing to act, in concert in relation to the designated body’s affairs.
(3) For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:
(a) a reference to controlling or influencing the composition of the designated body’s board is taken to be a reference to controlling or influencing:
(i) if the scheme is a registered scheme — whether a particular company becomes or remains the scheme’s responsible entity; or
(ii) if the scheme is not a registered scheme — whether a particular person is appointed, or remains appointed, to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and
(b) a reference to voting shares in the designated body is taken to be a reference to voting interests in the managed investment scheme.
(4) In relation to a matter relating to securities in a designated body, a person may be an associate of the body and the body may be an associate of the person.
(5) In this section:
designated body means:
(a) a body; or
(b) a managed investment scheme.
13 References in Chapter 7
If the associate reference occurs in Chapter 7, it includes a reference to:
(a) a person in partnership with whom the primary person carries on a financial services business; and
(b) subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on a financial services business in partnership with the primary person; and
(c) a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting, otherwise than because of transactions entered into in the ordinary course of business in connection with the lending of money; and
(d) a director of a body corporate of which the primary person is also a director and that carries on a financial services business; and
(e) subject to subsection 16(2), a director of a body corporate of which the primary person is also a director and that does not carry on a financial services business.
15 General
(1) The associate reference includes a reference to:
(a) a person in concert with whom the primary person is acting, or proposes to act; and
(b) a person who, under the regulations, is, for the purposes of the provision in which the associate reference occurs, an associate of the primary person; and
(c) a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way;
in respect of the matter to which the associate reference relates.
(2) If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this Division, the associate reference includes a reference to that other person.
16 Exclusions
(1) A person is not an associate of another person by virtue of section 12 or subsection 15(1), or by virtue of subsection 15(2) as it applies in relation to section 12 or subsection 15(1), merely because of one or more of the following:
(a) one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship;
(b) one, a client, gives specific instructions to the other, whose ordinary business includes dealing in financial products, to acquire financial products on the client’s behalf in the ordinary course of that business;
(c) one had sent, or proposes to send, to the other an offer under a takeover bid for shares held by the other;
(d) one has appointed the other, otherwise than for valuable consideration given by the other or by an associate of the other, to vote as a proxy or representative at a meeting of members, or of a class of members, of a body corporate.
(2) For the purposes of proceedings under this Act in which it is alleged that a person was an associate of another person by virtue of paragraph 13(b) or (e), the first‑mentioned person is not taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that the first‑mentioned person knew, or ought to have known, at that time, the material particulars of that matter.
17 Associates of composite person that carries on a financial services business
A reference to an associate, in relation to an entity (other than a body corporate) that carries on a financial services business, is, if 2 or more persons constitute the entity, a reference to an associate of any of those persons.
Division 3 — Carrying on business
18 Carrying on business: otherwise than for profit
A reference to a person carrying on business, carrying on a business, or carrying on a business of a particular kind, includes a reference to the person carrying on business, carrying on a business, or carrying on a business of that kind, as the case may be:
(a) in any case — otherwise than for profit; or
(b) in the case of a body corporate — otherwise than for the profit of the members or corporators of the body.
19 Businesses of a particular kind
A reference to a business of a particular kind includes a reference to a business of that kind that is part of, or is carried on in conjunction with, any other business.