On 2 September 2008, ASIC issued Regulatory Guide 46 which aimed
at improving disclosure by unlisted property
funds. The guide promotes eight disclosure principles to
be applied to product disclosure statements dated on or after 30
As a reminder, the implementation timetable is as follows:
By 30 November 2008 –
Responsible entities of open funds
should provide existing investors with updated information covered
by the disclosure principles (e.g. in a regular investor update or
by including the information on a website that is used to
communicate with investors).
By 30 November 2008 - PDSs that
are dated before 30 November 2008 but remain in use
If an existing PDS is still in use,
responsible entities should either:
include the disclosure principle information on a website
referred to in the PDS (if the omission of disclosure principle
information from the PDS is not materially adverse) -see CO 03/127;
update the PDS by a new or a supplementary PDS so that it
includes the disclosure principle information.
New PDSs from 30 November
PDSs dated on or after 30 November
2008 should clearly and prominently disclose information covered by
the disclosure principles.
By 31 March 2009 –
Responsible entities of closed funds should provide
existing investors with updated information covered by the
disclosure principles, unless the investors need earlier disclosure
to make a decision on withdrawal rights that commence on or shortly
after 31 March 2009.
For the purposes of the guide, ASIC considers an "open
scheme" to be an unlisted property fund that gives investors
the right to withdraw at any time between 30 November 2008 and 31
March 2009. ASIC considers that, if it is "likely" that
investors will be given withdrawal rights in the period to 31 March
2009, then the responsible entity must give an initial update by 30
In addition, a PDS is required to explain how the responsible
entity intends to update investors for ongoing disclosure. It is
good practice for responsible entities to update investors on the
status of the disclosure principle information at least every 6
months. Material changes to key information should be notified to
investors in the most efficient and effective method of
communication (eg. through a regular investor update or a website
that is used to communicate with investors).
Lodgment of Product Disclosure Statement Notifications
From 1 January 2009, ASIC will require all notifications of
product disclosure statements to be lodged online. This is due to a
change to section 1015D of the Corporations Act 2001 (Cth), which
was amended by the Corporations Legislation Amendment (Simpler
Regulatory System) Act 2007.
The following forms are affected by the change:
When is this Form
Form FS88 (PDS in-use
Form FS88 must be lodged when a PDS is
first given to a person in a recommendation, issue or sale
Form FS89 (Notice of change to
fees and charges in a PDS)
Form FS89 must be lodged when a change
is made to the fees and charges outlined in a PDS or a
Form FS90 (Notice that a product
in a PDS has ceased to be available)
Form FS90 must be lodged when a
product in a PDS or a Supplementary PDS ceases to be
Online lodgment of the above forms will be mandatory from 1
January 2009. These forms will be available online from 22 December
2008 through the following ASIC online portals:
Who uses this
Australian Financial Services Licensee
AFS Licensees can register for access
to lodge forms online.
Company Officeholder portal
A company officer can register for
access to lodge forms online on behalf of their company.
Registered Agent portal
Agents can register for access to
lodge forms online on behalf of a company that has appointed that
agent to represent it.
Rick Goldberg, a Partner at Madgwicks has over 18 years
experience in corporate and commercial law. His particular areas of
practice include funds management, superannuation and regulatory
compliance, and his clients include ASX companies, industry super
funds, fund managers, IDPS operators, stockbrokers, as well as
family owned private businesses.
Wendy Shang, a Senior Associate at Madgwicks has experience
in the areas of funds management, capital raisings, including IPOs,
private equity, managed investment schemes and excluded offers,
advising on asset and share sale agreements, superannuation and
regulatory issues with the Australian Securities and Investments
Commission and the Australian Stock Exchange.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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