QHA-Review_August_Digital

LEGAL MATTERS with Curt Schatz
CHANGES TO YOUR CORPORATE STRUCTURE
AND WHEN TO NOTIFY THE OLGR
QHA REVIEW | 32
When you purchase or establish a new licensed
premises, as part of the relevant applications for
liquor and gaming at your premises you are required
to disclose to the Office of Liquor and Gaming
Regulation (OLGR) sufficient information to allow the
commissioner to be satisfied that the applicant for the
licence is a fit and proper person to hold a licence or
permit.
Where an applicant for a licence is a corporation, the
criteria for a fit and proper person will apply to each
executive officer of the corporation. Accordingly, where
there are changes to the corporation and its structure,
the OLGR will need to be notified of those changes.
There are specific provisions both in the Liquor Act
1992 (Liquor Act) and the Gaming Machine Act 1991
(Gaming Act) that deal with such circumstances.
Change in Corporate Structure
Under the Liquor Act, where the beneficial ownership
of the controlling interest in a corporate liquor licensee
changes, this change must be notified to the OLGR
within 14 days after the change is effected. Similarly,
under the Gaming Act, where a corporate gaming
licensee undergoes a change in corporate structure,
directors, shareholders or has a relevant share transfer,
the licensee must notify the OLGR of the change, but
this must be done within seven days after the change
is effected.
By way of an example, the following situations would
require notification to the OLGR:
a. Change in shareholding – if there is a transfer of
shares resulting in a change in control of more
than 50% of the issued shares, notification must
be provided to the OLGR. This would include
instances where a majority shareholder sells their
shares to either an existing shareholder or a third
party, causing a shift in ownership of the corporate
licensee.
b. Change in executive officer – where there is a
change to the board of directors or the company
secretary, such as appointment of a new officer or
the resignation of an existing officer, written notice
must be provided to the OLGR of this change.
Where a new individual is appointed, they will also
be required to complete a Form 5 Personal Details
form for assessment by the OLGR of their suitability.
This change should also be documented on the
Australian Securities and Investments Commission
company records, with evidence to be provided to
the OLGR.
c. Corporate restructuring – where you are planning
a corporate restructure, including a merger or
a change in the beneficial owner under a trust
structure, notice will need to be provided to the
OLGR. Where a trust is involved, if there is a change
in the beneficiaries or the trustee (including a trustee
that holds shares in that capacity in the corporate
licensee), it is prudent to provide notification to the
OLGR of such changes.
There are penalties associated with a licensee failing
to comply with its obligations regarding notification to
the OLGR for the above changes. Under the Liquor
Act and Gaming Act this is 100 penalty units, which is
equal to $14,375.00.
When a change is considered to have been effected
depends on the change. For example, where a
company executive officer is resigning, the change
would occur on the effective date of the resignation.
For share transfers, the date that the shares have been
transferred to the new (or existing) shareholder and
this change is approved and updated on the company
register may be considered the date the change has
taken place.
Documentation of such changes can sometimes feel
administrative and tedious. However, it is important for
you to ensure that you are meeting all your obligations
as a licensee which includes prompt notification to the
OLGR of such changes to your corporate licensee. If
you require any assistance with ensuring you have met
your obligations, please contact me.