Western Australian Current Acts Western Australian Current Acts[s. 4(1)]
Division 1 — Relevant interests
1 . Terminology used in this Schedule
(1) This clause
applies for the purposes of this Division.
(2) Power to vote in
relation to a right to vote is power to exercise, or to control the exercise
of, the right to vote.
(3) A reference to
power to dispose of a share includes a reference to power to exercise control
over the disposal of the share.
(4) A reference to
power or control includes a reference to power or control that is direct or
indirect or is, or can be, exercised as a result of, by means of, in breach
of, or by revocation of, trusts, agreements and practices, or any of them,
whether or not they are enforceable.
(5) Power to vote in
relation to a right to vote, or power to dispose of a share, that is
exercisable by 2 or more persons jointly is taken to be exercisable by either
or any of those persons.
(6) A reference to a
controlling interest includes a reference to an interest that gives control.
2 . Basic rules: relevant interests
(1) A person who has
power to vote in relation to a right to vote has a relevant interest in the
right to vote.
(2) A person who has
power to dispose of a share has a relevant interest in the share.
3 . Control of corporation having power in
relation to a share
If a corporation has,
or is by this Division taken to have —
(a)
power to vote in relation to a right to vote; or
(b)
power to dispose of a share,
a person is taken for
the purposes of this Division to have in relation to the right to vote or the
share the same power as the corporation has, or is taken to have, if —
(c) the
corporation is, or its directors are, accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the person in relation to the exercise of the power
referred to in paragraph (a) or (b); or
(d) the
person has a controlling interest in the corporation.
4 . Control of 20% of voting power in corporation
having power in relation to a share
If a corporation or an
associate of a corporation has, or is by this Division (other than this
clause) taken to have —
(a)
power to vote in respect of a right to vote; or
(b)
power to dispose of a share,
a person is taken for
the purposes of this Division to have in relation to the right to vote or the
share the same power as the corporation or associate has, or is taken to have,
if —
(c) the
person has; or
(d) an
associate of the person has; or
(e)
associates of the person together have; or
(f) the
person and an associate or associates of the person together have,
power to vote in
relation to the right to vote attached to not less than 20% of the voting
shares in the corporation.
5 . Deemed relevant interest in advance of
performance of agreement that will give rise to a relevant interest
If a person —
(a) has
entered into an agreement with another person in relation to an issued share
or right to vote in which the other person has a relevant interest; or
(b) has
a right enforceable against another person in relation to an issued share or
right to vote in which the other person has a relevant interest, whether the
right is enforceable presently or in the future and whether or not on the
fulfilment of a condition; or
(c) has
an option granted by another person, or has granted to another person an
option, with respect to an issued share or right to vote in which the other
person has a relevant interest,
and, on performance of
the agreement, enforcement of the right, or exercise of the option, the
first-mentioned person would have a relevant interest in the share or right to
vote, the first-mentioned person is taken for the purposes of this Division to
have that relevant interest in the share or right to vote.
6 . Control of corporation having a relevant
interest by virtue of clause 5
If a corporation is by
clause 5 taken to have a relevant interest in a share in, or right to vote at
meetings of, a co-operative, a person is taken for the purposes of this
Division to have a relevant interest in the share or right to vote if —
(a) the
corporation is, or its directors are, accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the person in relation to the exercise of power to
vote in relation to that right to vote or power to dispose of those shares; or
(b) the
person has a controlling interest in the corporation; or
(c) the
person has power to vote in relation to the right to vote attached to not less
than 20% of the voting shares in the corporation.
7 . Matters not affecting application of Division
(1) It is immaterial
for the purposes of this Division whether or not power to vote in relation to
a right to vote, or power to dispose of a share —
(a) is
express or implied or formal or informal; or
(b) is
exercisable by a person alone or jointly with any other person or persons; or
(c)
cannot be related to a particular share; or
(d) is,
or can be made, subject to restraint or restriction.
(2) A relevant
interest in a share or right to vote is not to be disregarded merely because
of —
(a) its
remoteness; or
(b) how
it arose.
8 . Corporation may have a relevant interest in
its own shares
A corporation may, by
virtue of this Division, be considered to have a relevant interest in a share
in, or right to vote arising from membership of, the corporation itself.
A relevant interest of
a person in a share or right to vote is to be disregarded if the
person’s ordinary business includes lending money and the person has
authority to exercise powers as the holder of the relevant interest only
because of a security given for the purposes of a transaction entered into in
the ordinary course of business in connection with lending money, other than a
transaction entered into with an associate of the person.
10 . Exclusions: certain trustees
A relevant interest of
a person in a share or right to vote is to be disregarded if —
(a) the
share or right is subject to a trust; and
(b) the
person has the relevant interest as a trustee of the trust; and
(c)
either —
(i)
a beneficiary under the trust is by clause 5 taken to
have a relevant interest in the share or right because the beneficiary has a
presently enforceable and unconditional right referred to in clause 5(b); or
(ii)
the person is a bare trustee.
11 . Exclusions: instructions to securities dealer
to dispose of share
A relevant interest of
a person in a share or right to vote is to be disregarded if —
(a) the
person’s ordinary business includes dealing in securities; and
(b) the
person has authority to exercise powers as the holder of the relevant interest
only because of instructions given to the person, by or on behalf of another
person, to dispose of the share on the other person’s behalf in the
ordinary course of that business.
12 . Exclusions: honorary proxies
A relevant interest of
a person in a share or right to vote is to be disregarded if the person has it
only because of having been appointed, otherwise than for valuable
consideration given by the person or an associate of the person, to vote as a
proxy or representative at a meeting of members, or of a class of members, of
a corporation.
13 . Exclusions: holders of prescribed offices
A relevant interest of
a person in a share or right to vote is to be disregarded if the person has it
because of holding an office prescribed by the regulations.
The regulations may
provide that a relevant interest in a share is, in specified circumstances and
subject to specified conditions, if any, to be disregarded for the purposes of
a provision of this Act.
(1) Nothing in this
Schedule limits the generality of anything else in it.
(2) A person does not
have a relevant interest in a share of a co-operative or right to vote in
respect of a co-operative except as provided in this Schedule.
16 . Relevant interest: corporation other than
co-operative
A reference in this
Act to a relevant interest in a share of a corporation other than a
co-operative or a right to vote in relation to a corporation other than a
co-operative is to be construed in accordance with the Corporations Act.
A person is not an
associate of another person except as provided by this Division.
18 . Associates of a corporation
The associates of a
corporation include the following —
(a) a
director or secretary of the body;
(b) a
related corporation;
(c) a
director or secretary of a related corporation.
19 . Matters relating to voting rights
(1) If a reference to
an associate of a person relates to —
(a) the
extent of power to exercise, or to control the exercise of, the voting power
attached to voting shares in or arising from membership of a corporation; or
(b) the
person’s entitlement to shares in a corporation; or
(c) an
offer to purchase shares to which Part 11 Division 2 applies,
the reference includes
a reference to another person with whom the person has, or proposes to enter
into, an agreement referred to in subclause (2).
(2) Subclause (1)
applies to an agreement —
(a)
because of which one of the persons referred to in subclause (1) has or will
have power, even if it is in any way qualified —
(i)
to exercise; or
(ii)
to control, directly or indirectly, the exercise of; or
(iii)
to influence substantially the exercise of,
any voting power
attached to shares in the corporation; or
(b) for
the purpose of controlling or influencing —
(i)
the composition of the corporation’s board; or
(ii)
the conduct of affairs of the corporation;
or
(c)
under which one of those persons —
(i)
will or may acquire; or
(ii)
may be required by the other to acquire,
shares in the
corporation in which the other has a relevant interest; or
(d)
under which one of those persons may be required to dispose of shares in the
corporation in accordance with the other’s directions.
(3) Subclause (1)
applies despite any other effect the agreement may have.
(4) In relation to a
matter relating to shares in a corporation, a person may be an associate of
the corporation and the corporation may be an associate of a person.
(1) A reference to an
associate of a person includes a reference to —
(a)
another person in concert with whom the person is acting or proposes to act;
or
(b)
another person who, under the regulations, is, for the purposes of the
provision in which the reference occurs, an associate of the person; or
(c)
another person with whom the person is or proposes to become associated,
whether formally or informally, in any other way,
in relation to the
matter to which the reference relates.
(2) If a 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, a reference to an
associate of the person includes a reference to that other person.
A person is not an
associate of another person by virtue of clause 19 or 20(1), or by virtue of
clause 20(2) as it applies in relation to clause 19 or 20(1), merely because
—
(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; or
(b) one,
a client, gives specific instructions to the other, whose ordinary business
includes dealing in securities, to acquire shares on the client’s behalf
in the ordinary course of that business; or
(c) one
has made, or proposes to make, to the other an offer to which Part 11 Division
2 applies, in relation to shares held by the other; or
(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
corporation.
Division 3 — Related corporations
For the purposes of
this Act, a corporation is to be taken to be related to —
(a)
another corporation that is its subsidiary; and
(b)
another corporation of which it is a subsidiary; and
(c)
another corporation if both it and that other corporation are subsidiaries of
the same corporation.