Part III: Who’s in control? Changes of control to ACL holders and your obligations
Wednesday, 9 December 2015 | By David Court
In Part I and Part II of this blog series, we examined the obligation of AFSL holders to determine whether there has been a change of control in their entity, and to subsequently report any changes to ASIC.
This blog considers ACL holders’ similar obligation to identify changes in control, and to report these changes to ASIC in the appropriate manner.
Has a change of control occurred?
Regulation 9(11) of the National Consumer Credit Protection Regulations 2010 provides details on how you can determine if a change of control has taken place. The details mirror those provided in regulation 7.6.04(2) of the Corporations Regulations 2001, which is set out in Part I of this blog series (read the first blog here). Some examples of substantive and technical changes in control that ought to be reported to ASIC are also outlined in Part I.
Notifying ASIC of the change of control of the licensee
If you become aware of a “change in control” of your Australian credit licensee, it is a condition of your ACL that you must, within 10 business days, lodge with ASIC, particulars of the change that has occurred.
Unlike for changes of control to AFS licensees, there is no prescribed form that must be lodged with ASIC for changes of control to Australian credit licensees. Instead, you must provide notice in a letter to ASIC. The letter must:
- identify the licensee;
- identify who, if anyone, has lost control and the date of this change;
- identify who, if anyone, has gained control and the date of this change.
The letter should be addressed to:
Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841
Changes of control for companies
There is also an obligation to notify ASIC of changes to details of the company. Details of this general obligation can be found in Part II of this blog series (read the second blog here). Since writing this blog, we have written a Part IV of the series, which can be found here.
Author: David Court
Co-contributor: Tamara Cherny
David is a Partner at Holley Nethercote Commercial and Financial Services Lawyers working across the financial services and commercial practice areas of the firm. He has more than 25 years of technical and practical experience in corporate, commercial and financial services law. Read his full article "Who’s in control?" here.