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Business Names Registration Bill 2011

Part 4 Obligations to give information to ASIC

   

35   Notifying changes—entity that gives information to ASIC

             (1)  If:

                     (a)  an entity gives information to ASIC; and

                     (b)  the information is recorded in relation to a business name in the Business Names Register; and

                     (c)  circumstances change so that the information is no longer correct;

the entity must lodge with ASIC notice of the change within 28 days after becoming aware of it.

             (2)  The notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

36   Obligation to notify ASIC if entity becomes disqualified

             (1)  If an entity becomes disqualified after registration of a business name to the entity, the entity must immediately lodge with ASIC notice of the disqualification.

             (2)  The notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

37   Obligation to give ASIC information if requested

             (1)  ASIC may request an entity (other than a government body) to give ASIC information relevant for the purposes of establishing or maintaining the Business Names Register.

             (2)  A request under subsection (1) to an entity:

                     (a)  is to be made by notice in writing to the entity; and

                     (b)  must specify:

                              (i)  the information the entity is to give; and

                             (ii)  the period within which the entity is to give the information.

The period specified under subparagraph (b)(ii) must be of at least 28 days, beginning on the day on which the notice is given.

             (3)  If ASIC requests an entity to give information under this section, the entity must comply with the request.

Penalty:  5 penalty units.

             (4)  Subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (5)  The information must be given by lodging a response with ASIC in the prescribed form and manner.

             (6)  If:

                     (a)  an entity fails to comply with a request given under this section; and

                     (b)  ASIC reasonably believes that information on the Business Names Register to which the request relates is not correct;

ASIC may delete, correct or annotate the information on the Register.

             (7)  If:

                     (a)  an entity gives ASIC information in purported compliance with a request given under this section; and

                     (b)  ASIC reasonably believes that the information is incorrect;

ASIC may decide not to include the information on the register, or to include the information in a corrected or annotated form.

             (8)  If ASIC deletes, decides not to include, corrects or annotates information under subsection (6) or (7), ASIC must give the entity to whom the business name is registered notice in writing:

                     (a)  setting out the action ASIC has taken; and

                     (b)  in the case of a correction or annotation, setting out the details of that correction or annotation; and

                     (c)  giving ASIC’s reasons for its decision.

38   Notifying ASIC of bankruptcy, insolvency etc.

             (1)  If:

                     (a)  a business name is registered to an entity; and

                     (b)  a person is appointed or authorised to act as a debtor representative of the entity;

the person must lodge with ASIC notice of that fact in accordance with subsection (2).

             (2)  The notice:

                     (a)  must be given to ASIC within 28 days after the appointment or authorisation; and

                     (b)  must identify who (if anyone) will carry on a business under the business name while the person is appointed or authorised; and

                     (c)  must be in the prescribed form; and

                     (d)  must be lodged in the prescribed manner.

             (3)  In this section:

debtor representative means:

                     (a)  a trustee in bankruptcy; or

                     (b)  a liquidator within the meaning given by subsection 6(1) of the Income Tax Assessment Act 1936 ; or

                     (c)  a receiver; or

                     (d)  a controller (within the meaning of section 9 of the Corporations Act 2001 ); or

                     (e)  an administrator appointed to an entity under Division 2 of Part 5.3A of the Corporations Act 2001 ; or

                      (f)  a person appointed, or authorised, under a law of the Commonwealth, or of a State or Territory, to manage the affairs of an entity because it is unable to pay all its debts as and when they become due and payable; or

                     (g)  an administrator of a deed of company arrangement executed by the entity; or

                     (h)  a foreign representative in respect of a foreign proceeding that has been recognised for the purposes of the Cross-Border Insolvency Act 2008 .

trustee in bankruptcy means:

                     (a)  in relation to a bankruptcy—the trustee of the estate of the bankrupt; or

                     (b)  in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966 —the trustee of the composition or scheme of arrangement; or

                     (c)  in relation to a debtor whose property is subject to control under Division 2 of Part X of the Bankruptcy Act 1966 —the controlling trustee in relation to the debtor under that Part of that Act; or

                     (d)  in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966 —the trustee of the agreement; or

                     (e)  in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966 —the trustee of the estate.

39   Notifying ASIC of appointment of a legal personal representative

             (1)  If:

                     (a)  a business name is registered to an entity that is an individual; and

                     (b)  the individual dies; and

                     (c)  one of the following is granted to a person (the legal personal representative ):

                              (i)  probate of the will of the deceased;

                             (ii)  letters of administration of the estate of the deceased;

                            (iii)  any other similar grant;

the legal personal representative must lodge with ASIC notice of the grant within 28 days after the grant is made.

             (2)  The notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

             (3)  If ASIC receives notice under this section:

                     (a)  ASIC must (if it has not already done so) register the Business Name to the estate of the deceased; and

                     (b)  enter the details of the legal personal representative on the Business Names Register.

40   Notification by successor in relation to a deceased estate

             (1)  If:

                     (a)  a business name is registered to an entity that is an individual; and

                     (b)  the individual dies; and

                     (c)  none of the following has been granted to a person:

                              (i)  probate of the will of the deceased;

                             (ii)  letters of administration of the estate of the deceased;

                            (iii)  any other similar grant; and

                     (d)  there are reasonable grounds for concluding that an entity will inherit assets formerly used by the deceased in carrying on a business under the business name;

the entity may lodge with ASIC notice of that fact.

             (2)  The notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

             (3)  ASIC must register the Business Name to the estate of the deceased.

             (4)  ASIC may enter the name of an entity as a notified successor in relation to a business name, and other prescribed details, if the entity lodges notice with ASIC in accordance with subsections (1) and (2).

             (5)  ASIC may refuse to enter the name of an entity as a notified successor in relation to a business name if ASIC is not satisfied that there are reasonable grounds for concluding that the entity will inherit assets formerly used by the deceased in carrying on a business under the business name.

             (6)  ASIC must remove the entry for a notified successor in relation to a business name from the Business Names Register if ASIC receives notice in relation to the business name under section 39.

             (7)  If one or more entities is noted on the Business Names Register as a notified successor, ASIC is taken to satisfy an obligation under this Act or the Transitional Act to give notice to the entity to whom the business name is registered if ASIC gives notice to each notified successor.

41   Federal Court may order information be given to ASIC

             (1)  If an entity has failed to comply with any provision of this Act or the Transitional Act that requires the entity to lodge with ASIC any information, ASIC may give the entity a written notice requiring the entity to comply with the requirement within 10 business days after the notice is given.

             (2)  If the entity does not comply with the notice within that period, the Federal Court may, on an application by ASIC, make an order directing any of the following persons to comply with the requirement or request:

                     (a)  if the entity is a person—the entity;

                     (b)  if the entity is a body corporate—a director, secretary or senior manager of the body corporate;

                     (c)  if the entity is a partnership or the trustees of a trust—a partner or trustee;

                     (d)  if the entity is an unincorporated association—a member of the committee of management of the association;

                     (e)  in the case of a joint venture, an individual who is a joint venture entity or involved in the management of a joint venture entity.

             (3)  In paragraph (2)(e), joint venture and joint venture entity have the same meaning as in Part 10.

             (4)  The order may provide that all costs of and incidental to the application are to be borne by the person.