Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.5 - POWERS OF COURTS  

SECTION 1325C   UNFAIR OR UNCONSCIONABLE AGREEMENTS, PAYMENTS OR BENEFITS  

1325C(1)   [ Unfair or unconscionable conduct]  

The Court may make orders under subsection (2) if:

(a) a body corporate gives, or enters into an agreement to give, a director or secretary of the body corporate or a related body corporate a benefit (including a payment or an agreement to employ them, or engage their services, for a fixed period); and

(b) the agreement is entered into or the benefit is given:

(i) within 12 months after the start of the bid period for a takeover bid for the securities of the body corporate or a related body corporate; or

(ii) at a time when the directors of the body corporate have reason to believe that a takeover bid is to be made in respect of securities of the body corporate or a related body corporate; and

(c) the Court is satisfied that the agreement or benefit was unfair or unconscionable having regard to the interests of the body corporate.

1325C(2)   [ Power of Court]  

The Court may:

(a) declare the agreement, or any part of it, to be void or to have always been void; or

(b) direct a person to whom a benefit is given, or another specified person, to:

(i) make a payment or transfer property to the body corporate; or

(ii) do any other act for the benefit of the body corporate; or

(c) make any other order it considers appropriate.

1325C(3)   [ Exception]  

This section does not apply to an agreement or benefit that has been approved by an ordinary resolution of the body corporate (whether before or after the agreement was entered into or the benefit given) with no vote being cast by the person who is to receive the benefit or their associates.

1325C(4)   [ Who may apply]  

An order under this section may be made on application by:

(a) the body corporate; or

(b) ASIC; or

(c) members who together hold shares carrying at least 10% of the votes attached to voting shares in the body corporate or a related body corporate;

within 12 months, or any longer period that the Court thinks appropriate in the circumstances, after the agreement is entered into or the benefit given.