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CORPORATIONS ACT 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.5 - POWERS OF COURTS  

SECTION 1324  INJUNCTIONS  

1324(1)  [Court may grant injunction]  


Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:


(a) a contravention of this Act; or


(b) attempting to contravene this Act; or


(c) aiding, abetting, counselling or procuring a person to contravene this Act; or


(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or


(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or


(f) conspiring with others to contravene this Act;

the Court may, on the application of ASIC, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.

1324(1A)  [Affected interests: deeming provisions]  


For the purposes of subsection (1):


(a) a contravention of this Act affects the interests of a creditor or member of a company if the insolvency of the company is an element of the contravention; and


(b) a company's contravention of:


(i) paragraph 257A(1)(a) (share buy-back not to prejudice ability to pay creditors); or

(ia) paragraph 256B(1)(b) (share capital reduction not to prejudice ability to pay creditors); or

(ii) paragraph 260A(1)(a) (financial assistance for share acquisition not to prejudice company or shareholders or ability to pay creditors);
affects the interests of a creditor or member of the company; and


(c) a company's contravention of paragraph 256B(1)(a) (fair and reasonable test for share capital reduction) affects the interests of a member of the company.

This subsection does not limit subsection (1) in any way.

1324(1B)  [Presumption]  


If the ground relied on in an application for an injunction is conduct or proposed conduct of a company or other person that it is alleged constitutes, or would constitute:


(a) a contravention of paragraph 256B(1)(a) or (b), section 257A or paragraph 260A(1)(a); or


(b) a contravention of a provision of this Act involving the insolvency of the company because of:


(i) the company making a reduction of its share capital to which Division 1 of Part 2J.1 applies; or

(ii) the company buying back its shares; or

(iii) the company giving financial assistance to which Part 2J.3 applies;

the Court must assume that the conduct constitutes, or would constitute, a contravention of that paragraph, section or provision unless the company or person proves otherwise.

1324(2)  [Court may grant injunction requiring action to be done]  


Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of:


(a) ASIC; or


(b) any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

grant an injunction, on such terms as the Court thinks appropriate, requiring the first-mentioned person to do that act or thing.

1324(3)  [Injunction by consent]  


Where an application for an injunction under subsection (1) or (2) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.

1324(4)  [Interim injunction]  


Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

1324(5)  [Discharge or variation of injunction]  


The Court may discharge or vary an injunction granted under subsection (1), (2) or (4).

1324(6)  [Whether or not person intends to engage in conduct]  


The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:


(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and


(b) whether or not the person has previously engaged in conduct of that kind; and


(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

1324(7)  [Whether or not person intends to refuse or fail to act]  


The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:


(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and


(b) whether or not the person has previously refused or failed to do that act or thing; and


(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

1324(8)  [No undertaking as to damages]  


Where ASIC applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

1324(9)  [Orders]  


In proceedings under this section against a person the Court may make an order under section 1323 in respect of the person.

1324(10)  [Damages]  


Where the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

 



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