Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4B - CIVIL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS  

Division 1 - The Court may make declarations of contravention, pecuniary penalty orders, relinquishment orders, refund orders and compensation orders  

SECTION 1317GB   REFUND ORDERS - CONTRAVENTIONS OF SECTION 962R OR 962S  

1317GB(1)    

This section applies if a a person who is a fee recipient:

(a)    deducts an amount of an ongoing fee payable under an ongoing fee arrangement from an account held by a person (the account holder ) with the fee recipient; or

(b)    accepts payment of the amount of the ongoing fee that has been deducted from an account held by a person (the account holder ) with another person (the account provider ) under an arrangement the fee recipient made with the account provider.

1317GB(2)    
A Court may order that the fee recipient refund the amount if the Court is satisfied that:

(a)    either:

(i) if paragraph (1)(a) applies - the fee recipient knowingly or recklessly contravened section 962R (fee recipient must not deduct ongoing fees without consent) in deducting the amount; or

(ii) if paragraph (1)(b) applies - the fee recipient knowingly or recklessly contravened section 962S (fee recipient must not arrange for deduction of ongoing fees without consent or accept such deductions) in arranging for the deduction of the amount, or accepting payment of the amount; and

(b)    it is reasonable in all the circumstances to make the order.

Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E .

Applications for order

1317GB(3)    
The Court may make the order under this section:

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application by ASIC; or

(c)    on the application of the account holder.

When order may be made

1317GB(4)    
The Court must not make an order under this section in relation to amounts paid more than 6 years before the proceedings for the order are commenced.

Recovery of amount as a debt

1317GB(5)    
If the Court makes an order that the fee recipient refund an amount specified in the order to the account holder, the account holder may recover the amount as a debt due to the account holder.