THE CORPORATIONS LAW

CHAPTER 8 - THE FUTURES INDUSTRY

PART 8.3 - PARTICIPANTS IN THE FUTURES INDUSTRY

Division 4 - Liability of principals for representatives' conduct

SECTION 1185   LIABILITY OF PRINCIPALS WHERE ACT DONE IN RELIANCE ON REPRESENTATIVE'S CONDUCT  

1185(1)  [Application]  

This section applies where:

(a)  at a time when a person (in this section called the ``representative'') is a representative of only one person (in this section called the ``indemnifying principal'') or of 2 or more persons (in this section called the ``indemnifying principals''), the representative, in this jurisdiction or elsewhere:

(i) engages in particular conduct; or

(ii) proposes, or represents that the representative proposes, to engage in particular conduct;

(b)  another person (in this section called the ``client'') does, or omits to do, a particular act, in this jurisdiction or elsewhere, because the client believes at a particular time in good faith that the representative engaged in, or proposes to engage in, as the case may be, that conduct:

(i) on behalf of some person (in this section called the ``assumed principal'') whether or not identified, or identifiable, at that time by the client; and

(ii) in connection with a futures broking business or futures advice business carried on by the assumed principal; and

(c)  it is reasonable to expect that a person in the client's circumstances would so believe and would do, or omit to do, as the case may be, that act because of that belief;

whether or not that conduct is or would be within the scope of the representative's employment by, or authority from, any person.

1185(2)  [Principal liable for conduct of representative]  

If:

(a)  subparagraph (1)(a)(i) applies; or

(b)  subparagraph (1)(a)(ii) applies and the representative engages in that conduct;

then, for the purposes of a proceeding in a court:

(c)  as between the indemnifying principal and the client or a person claiming through the client, the indemnifying principal is liable; or

(d)  as between any of the indemnifying principals and the client or a person claiming through the client, each of the indemnifying principals is liable;

as the case may be, in respect of that conduct in the same manner, and to the same extent, as if he, she or it had engaged in it.

1185(3)  [Principal to pay damages]  

Without limiting the generality of subsection (2), the indemnifying principal, or each of the indemnifying principals, as the case may be, is liable to pay damages to the client in respect of any loss or damage that the client suffers as a result of doing, or omitting to do, as the case may be, the act referred to in paragraph (1)(b).

1185(3A)  [Jurisdictional nexus]  

Subsection (3) does not apply unless:

(a)  the conduct was engaged in, the proposed conduct would have been engaged in, or the representation was made, in this jurisdiction; or

(b)  the act referred to in paragraph (1)(b) was done, or would have been done, as the case may be, in this jurisdiction; or

(c)  some or all of the loss or damage was suffered in this jurisdiction.

1185(4)  [More than one principal]  

If:

(a)  there are 2 or more indemnifying principals;

(b)  2 or more of them are parties (in this subsection called the ``indemnifying parties'') to a proceeding in a court;

(c)  it is proved for the purposes of the proceeding:

(i) that the representative engaged in that conduct as a representative of some person; and

(ii) who that person is; and

(d)  that person is among the indemnifying parties;

subsections (2) and (3) do not apply, for the purposes of the proceeding, in relation to the indemnifying parties other than that person.