THE CORPORATIONS LAW

CHAPTER 8 - THE FUTURES INDUSTRY

PART 8.8 - MISCELLANEOUS

SECTION 1268   POWER OF COURT TO MAKE CERTAIN ORDERS  

1268(1)  (Power to make orders)  

Where:

(a)  on the application of the Commission, it appears to the Court that a person has contravened this Chapter, or any other law in force in this jurisdiction relating to dealing in futures contracts, or has contravened the conditions of a licence, the business rules of a futures exchange, a clearing house or a futures association or is about to do an act with respect to dealing in futures contracts that, if done, would be such a contravention; or

(b)  on the application of a futures exchange, clearing house or futures association, it appears to the Court that a person has contravened the business rules of the futures exchange, clearing house or futures association, as the case may be;

the Court may make such order or orders as it thinks fit including, but without limiting the generality of the foregoing, one or more of the following orders:

(c)  in the case of persistent or continuing breaches of this Chapter, or of any other law in force in this jurisdiction relating to dealing in futures contracts, or the conditions or restrictions of a licence, or of the business rules of a futures exchange, clearing house or futures association - an order restraining a person from carrying on a business of dealing in futures contracts, acting as a futures adviser, holding himself, herself or itself out as so carrying on business or so acting, or from doing an act as a representative of a futures broker or of a futures adviser;

(d)  an order restraining a person from acquiring, disposing of or otherwise dealing in any class of futures contracts that is specified in the order;

(e)  an order appointing a receiver of property of a futures broker or of property that is held by a futures broker for or on behalf of another person, whether as trustee or otherwise;

(f)  an order declaring a futures contract to be void or voidable;

(g)  for the purpose of securing compliance with any other order under this section, an order directing a person to do or refrain from doing a specified act;

(h)  any ancillary order deemed to be desirable in consequence of the making of an order under any of the preceding paragraphs.

1268(2)  (Interim orders)  

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.

1268(3)  [Undertaking as to damages]  

Where the Commission makes an application to the Court for the making of an order under subsection (1), the Court shall not require the Commission or any other person, as a condition of granting an interim order under subsection (2), to give any undertaking as to damages.

1268(4)  [No order if unfair prejudice]  

The Court shall not make an order under subsection (1) if it is satisfied that the order would unfairly prejudice a person.

1268(5)  [Publication of notice]  

The Court may, before making an order under subsection (1), direct that notice of the application be given to such persons as it thinks fit or direct that notice of the application be published in such manner as it thinks fit, or both.

1268(6)  [Powers of receiver]  

A person appointed by order of the Court under subsection (1) as a receiver of property of a futures broker:

(a)  may require the broker to deliver to the person any property of which the person has been appointed receiver or to give to the person all information concerning that property that may reasonably be required;

(b)  may acquire and take possession of any property of which the person has been appointed receiver;

(c)  may deal with any property that the person has acquired or of which the person has taken possession in any manner in which the broker might lawfully have dealt with the property; and

(d)  has such other powers in respect of the property as the Court specifies in the order.

1268(7)  [Interpretation]  

In paragraph (1)(e) and subsection (6), ``property'', in relation to a futures broker, includes money or other property entrusted to or received on behalf of any other person by the broker or another person in the course of or in connection with a business of dealing in futures contracts carried on by the futures broker.

1268(8)  [Contravention]  

A person shall not, without reasonable excuse, contravene:

(a)  an order under this section that is applicable to the person; or

(b)  a requirement of a receiver appointed by order of the Court under subsection (1).

1268(9)  [Rescission etc of orders]  

The Court may rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.