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CORPORATIONS ACT 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.5 - POWERS OF COURTS  

SECTION 1323  POWER OF COURT TO PROHIBIT PAYMENT OR TRANSFER OF MONEY, FINANCIAL PRODUCTS OR OTHER PROPERTY  

1323(1)  [Court's powers]  

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Where:


(a) an investigation is being carried out under the ASIC Act or this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act; or


(b) a prosecution has been begun against a person for a contravention of this Act; or


(c) a civil proceeding has been begun against a person under this Act;

and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (in this section called an aggrieved person) to whom the person referred to in paragraph (a), (b) or (c), as the case may be, (in this section called the relevant person), is liable, or may be or become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for financial products or other property, the Court may, on application by ASIC or by an aggrieved person, make one or more of the following orders:


(d) an order prohibiting a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed;


(e) an order prohibiting a person holding money, financial products or other property, on behalf of the relevant person, or on behalf of an associate of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the financial products or other property, to, or to another person at the direction or request of, the person on whose behalf the money, financial products or other property, is or are held;


(f) an order prohibiting the taking or sending out of this jurisdiction, or out of Australia, by a person of money of the relevant person or of an associate of the relevant person;


(g) an order prohibiting the taking, sending or transfer by a person of financial products or other property of the relevant person, or of an associate of the relevant person:

(i) from a place in this jurisdiction to a place outside this jurisdiction (including the transfer of financial products from a register in this jurisdiction to a register outside this jurisdiction); or

(ii) from a place in Australia to a place outside Australia (including the transfer of financial products from a register in Australia to a register outside Australia);
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(h) an order appointing:


(i) if the relevant person is a natural person - a receiver or trustee, having such powers as the Court orders, of the property or of part of the property of that person; or

(ii) if the relevant person is a body corporate - a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person;


(j) if the relevant person is a natural person - an order requiring that person to deliver up to the Court his or her passport and such other documents as the Court thinks fit;


(k) if the relevant person is a natural person - an order prohibiting that person from leaving this jurisdiction, or Australia, without the consent of the Court.

1323(2A)  [Property of a person]  


A reference in paragraph (1)(g) or (h) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example:


(a) as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or


(b) in a fiduciary capacity.

1323(2B)  [Purpose of s 1323(2A)]  


Subsection (2A) is to avoid doubt, is not to limit the generality of anything in subsection (1) and is not to affect by implication the interpretation of any other provision of this Act.

1323(2)  [Prohibition may be absolute or conditional]  


An order under subsection (1) prohibiting conduct may prohibit the conduct either absolutely or subject to conditions.

1323(3)  [Interim order]  


Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

1323(4)  [Damages]  


On an application under subsection (1), the Court must not require the applicant or any other person, as a condition of granting an interim order under subsection (3), to give an undertaking as to damages.

1323(5)  [Further orders]  


Where the Court has made an order under this section on a person's application, the Court may, on application by that person or by any person affected by the order, make a further order discharging or varying the first-mentioned order.

1323(6)  [Duration of order]  


An order made under subsection (1) or (2) may be expressed to operate for a specified period or until the order is discharged by a further order under this section.

1323(7)  [Powers not limited]  


Nothing in this section affects the powers that the Court has apart from this section.

1323(8)  [Limitation]  


This section has effect subject to the Bankruptcy Act 1966.

1323(9)  [Contravention of Court order]  


A person must not contravene an order by the Court under this section that is applicable to the person.

1323(10)  [Strict liability offence]  

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An offence based on subsection (9) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.


 



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