Superannuation Industry (Supervision) Act 1993

PART 27 - POWERS OF COURT  

SECTION 313   POWER OF COURT TO PROHIBIT PAYMENT OR TRANSFER OF MONEY OR PROPERTY  

313(1)   Court ' s power to protect interests of certain creditors etc.  

If:

(a)    

any of the following applies:

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

(ii) a prosecution has begun against a person (also the contravening person ) for a contravention of this Act, or under the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 , in connection with a superannuation entity; or

(iii) a civil proceeding has begun against a person (also the contravening person ) under this Act; and

(b)    the Regulator or a person (an aggrieved person ) to whom the contravening person is liable, or may become liable:

(i) to pay money (whether in respect of a debt, by way of damages or compensation or otherwise); or

(ii) to account for property;

applies to the Court; and

(c)    the Court considers it necessary or desirable to do so for the purpose of protecting the interests of an aggrieved person;

the Court may make one or more of the orders specified in subsection (2) .

313(1A)   Court ' s power to protect the interests of beneficiaries.  

If:

(a)    the Regulator is of the opinion that it is necessary for the Court to make one or more of the orders specified in subsection (2) to protect the interests of any or all of the beneficiaries of a superannuation entity; and

(b)    

the Regulator applies to the Court for such an order in relation to a trustee of the entity; and

(c)    the Court considers it necessary or desirable to protect the interests of any or all of the beneficiaries;

the Court may make one or more of the orders specified in subsection (2) .

313(1B)   Any reference to the contravening person is a reference to the trustee.  

For the purposes of subsection (1A) , subsection (2) has effect as if any reference to the contravening person were a reference to the trustee.

313(2)   Orders that Court may make.  

The orders that the Court may make are:

(a)    an order prohibiting a person who is indebted to the contravening person or to an associate of the contravening person from making a payment in total or partial discharge of the debt to:

(i) the contravening person or associate; or

(ii) another person at the direction or request of the contravening person or associate;

(b)    an order prohibiting a person holding money or property on behalf of the contravening person or of an associate of the contravening person from:

(i) paying all or any of the money; or

(ii) transferring or otherwise parting with possession of the property;

to:

(iii) the contravening person or associate; or

(iv) another person at the direction or request of the contravening person or associate;

(c)    an order prohibiting the taking or sending out of Australia by a person of money of the contravening person or of an associate of the contravening person;

(d)    an order prohibiting the taking, sending or transfer by a person of property of the contravening person, or of an associate of the contravening person from a place in Australia to a place outside Australia (including the transfer of interests from a register in Australia to a register outside Australia);

(e)    an order appointing:

(i) if the contravening person is an individual - 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 contravening 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;

(f)    if the contravening person is an individual - an order requiring that person to deliver up to the Court his or her passport and such other documents as the Court thinks fit;

(g)    if the contravening person is an individual - an order prohibiting that person from leaving Australia without the consent of the Court.

313(3)   Property in (2)(d) or (e).  

A reference in paragraph (2)(d) or (e) 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.

313(4)   Purpose of subsection (3).  

Subsection (3) 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.

313(5)   Absolute or conditional orders.  

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

313(6)   Interim orders.  

If an application is made to the Court for an order under subsection (1) or (1A) , 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).

313(7)   Damages undertakings.  

On an application under subsection (1) or (1A) , the Court must not require the applicant or any other person, as a condition of granting an interim order under subsection (6), to give an undertaking as to damages.

313(8)   Further orders.  

If 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.

313(9)   Period of order.  

An order made under subsection (1) , (1A) or (6) may be expressed to operate for a specified period or until the order is discharged by a further order under this section.

313(10)   Court ' s other powers not affected.  

This section does not affect the powers that the Court has apart from this section.

313(11)   Section subject to Bankruptcy Act.  

This section has effect subject to the Bankruptcy Act 1966 .

313(12)   Offence to contravene orders.  

A person who intentionally or recklessly contravenes an order by the Court under this section that is applicable to the person commits an offence punishable on conviction by imprisonment for a term of not more than 6 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.