67ALimited recourse borrowing arrangements

67A Limited recourse borrowing arrangements

Exception (1) Subsection 67(1) does not prohibit a trustee of a regulated superannuation fund (the RSF trustee) from borrowing money, or maintaining a borrowing of money, under an arrangement under which: (a) the money is or has been applied for the acquisition of a single acquirable asset, including: (i) expenses incurred in connection with the borrowing or acquisition, or in maintaining or repairing the acquirable asset (but not expenses incurred in improving the acquirable asset); and

Example: Conveyancing fees, stamp duty, brokerage or loan establishment costs.

(ii) money applied to refinance a borrowing (including any accrued interest on a borrowing) to which this subsection applied (including because of section 67B) in relation to the single acquirable asset (and no other acquirable asset); and
(b) the acquirable asset is held on trust so that the RSF trustee acquires a beneficial interest in the acquirable asset; and
(c) the RSF trustee has a right to acquire legal ownership of the acquirable asset by making one or more payments after acquiring the beneficial interest; and
(d) the rights of the lender or any other person against the RSF trustee for, in connection with, or as a result of, (whether directly or indirectly) default on:
(i) the borrowing; or
(ii) the sum of the borrowing and charges related to the borrowing;
are limited to rights relating to the acquirable asset; and

Example: Any right of a person to be indemnified by the RSF trustee because of a personal guarantee given by that person in favour of the lender is limited to rights relating to the acquirable asset.

(e) if, under the arrangement, the RSF trustee has a right relating to the acquirable asset (other than a right described in paragraph (c))—the rights of the lender or any other person against the RSF trustee for, in connection with, or as a result of, (whether directly or indirectly) the RSF trustee’s exercise of the RSF trustee’s right are limited to rights relating to the acquirable asset; and
(f) the acquirable asset is not subject to any charge (including a mortgage, lien or other encumbrance) except as provided for in paragraph (d) or (e).

Meaning of acquirable asset (2) An asset is an acquirable asset if: (a) the asset is not money (whether Australian currency or currency of another country); and (b) neither this Act nor any other law prohibits the RSF trustee from acquiring the asset. (3) This section and section 67B apply to a collection of assets in the same way as they apply to a single asset, if: (a) the assets in the collection have the same market value as each other; and (b) the assets in the collection are identical to each other.

Note: Example: A collection of shares of the same class in a single company.