Today ASIC released an updated regulatory guide outlining when it will grant Chapter 6 relief for share transfers under s444GA of the Corporations Act1: click here to view.
The updated policy provides that ASIC generally requires an independent expert report to be prepared in accordance with Regulatory Guide 112 (IER). This has not previously been the case for reports for the purpose of s444GA.
The ASIC guidelines state that ASIC will not generally accept reports prepared by a deed administrator (or another member of the deed administrator’s firm) – this includes any major reports to creditors pursuant to the Insolvency Practice Rules, for the reasons set out below.
Firstly, reports prepared by the deed administrators for creditors have a different focus in subject matter to those required with respect to s606 relief.
Secondly, there are concerns as to independence, perceived and in some cases likely actual, where:2
The Regulatory Guide provides that ASIC may provide relief from s606 where an IER concludes that members have no residual equity in the company, the court grants leave under s444GA and the company's members are provided with an explanatory statement at least 14 days before the court hearing that:3
The new ASIC guidelines provide clarity on ASIC’s requirements for relief from s606 where there is a s444GA application, including in relation to an IER.
Deed administrators should liaise with ASIC regularly prior to and throughout a s606 and s444GA application.
 2001 (Cth).
 Regulatory Guide 6 at 6.209.
 Regulatory Guide 111 at 111.68 and Regulatory Guide 6 at 6.202.