8  Meaning of direct interest holder

• (1)

  An entity is a direct interest holder in relation to an asset if the entity:

  • (a)

    together with any associates of the entity, holds an interest of at least 10% in the asset (including if any of the interests are held jointly with one or more other entities); or

  • (b)

    holds an interest in the asset that puts the entity in a position to directly or indirectly influence or control the asset.

  Note: For interests held by trusts, partnerships, superannuation funds and unincorporated foreign companies, see section 53A.

Exemption for moneylenders etc.

• (2)

  Subsection (1) does not apply to an interest in an asset held by an entity if:

  • (a)

    the entity holds the interest in the asset:

    • (i)

      solely by way of security for the purposes of a moneylending agreement; or

    • (ii)

      solely as a result of enforcing a security for the purposes of a moneylending agreement; and

  • (b)

    the entity is:

    • (i)

      the entity (the first entity) that entered into the moneylending agreement; or

    • (ii)

      a subsidiary or holding entity of the first entity; or

    • (iii)

      a person who is (alone or with others) in a position to determine the investments or policy of the first entity; or

    • (iv)

      a security trustee who holds or acquires the interest on behalf of the first entity; or

    • (v)

      a receiver, or a receiver and manager, appointed by, or appointed on instructions from, a person or entity mentioned in any of subparagraphs (i) to (iv).

• (3)

  A moneylending agreement is:

  • (a)

    an agreement entered into in good faith, on ordinary commercial terms and in the ordinary course of carrying on a business (a moneylending business) of lending money or otherwise providing financial accommodation, except an agreement dealing with any matter unrelated to the carrying on of that business; or

  • (b)

    if the entity:

    • (i)

      is carrying on a moneylending business; or

    • (ii)

      is a subsidiary or holding entity of a corporate entity that is carrying on a moneylending business;

      an agreement to acquire an interest arising from a moneylending agreement (within the meaning of paragraph (a)).

Exemption for providers of custodial or depository services

• (4)

  Subsection (1) does not apply to an interest in an asset held by an entity if:

  • (a)

    the entity is the provider of a custodial or depository service; and

  • (b)

    the entity holds the interest in the asset solely in the entity’s capacity as the provider of a custodial or depository service; and

  • (c)

    the holding of the interest does not put the entity in a position to directly or indirectly influence or control the asset.

Exemption for providers of services specified in the rules

• (5)

  Subsection (1) does not apply to an interest in an asset held by an entity if:

  • (a)

    the entity is the provider of a service specified in the rules; and

  • (b)

    the entity holds the interest in the asset solely in the entity’s capacity as the provider of the service; and

  • (c)

    the holding of the interest does not put the entity in a position to directly or indirectly influence or control the asset.