2.1 Part summary

This part deals with:

            (a)     the statutory provisions that require a managed investment scheme to be registered and the exceptions to this requirement; and

            (b)     the ARR that require an “offer of interests” in a horse racing scheme to be the subject of a PDS approved by a lead regulator.

            Conclusion

A horse racing scheme established as a one-off “private” scheme may not require registration. To qualify as a “private” scheme it MUST NOT require registration under section 601ED. In other words, it MUST NOT have more than 20 members and the person who established it MUST NOT be [a promoter] in the business of dealing in interests in such schemes.

A horse racing scheme established by a person (promoter[1]) who is in the business of dealing in interests in such schemes:

(a)     will, prima facie, fall WITHIN the requirement for registration under section 601ED, regardless of the number of members; and

(b)     MUST be registered as a managed investment scheme, UNLESS it qualifies [and is established] as an unregistered scheme that is:

       (i)      a personal offer scheme[2];

       (ii)     a wholesale scheme[3]; or

       (iii)     a lead regulator approved (ASIC Instrument[4] compliant) syndicate.

An “offer of interests” in:

(a)     a registered scheme MUST be the subject of a PDS that complies with the requirements of the Corporations Act; and

(b)     an ASIC Instrument compliant syndicate MUST be the subject of a PDS that:

       (i)       complies with the requirements of the Corporations Act and the ASIC Instrument; and

       (ii)     is approved by a lead regulator.

[1] the promoter test is in section 601ED(1)(b)

[2] section 1012E

[3] Section 761G

[4] ASIC Corporations (Horse Schemes) Instrument 2016/790