Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

PART 7.8A - DESIGN AND DISTRIBUTION REQUIREMENTS RELATING TO FINANCIAL PRODUCTS FOR RETAIL CLIENTS  

Division 6 - Miscellaneous  

SECTION 994P   ORDERS TO REDRESS LOSS OR DAMAGE SUFFERED BY NON-PARTY CONSUMERS ETC.  

Orders

994P(1)    
If:

(a)    a person engaged in conduct (the contravening conduct ) in contravention of section 994B , 994C or 994D or subsection 994E(1) or (3) ; and

(b)    the contravening conduct caused, or is likely to cause, a class of persons to suffer loss or damage; and

(c)    the class includes persons ( non-party consumers ) who have not been a party to proceedings under this Act in relation to the contravening conduct;

the Court may, on the application of ASIC, make such order or orders (other than an award of damages) as the Court thinks appropriate against a person referred to in subsection (2) of this section.

Note: The orders that the Court may make include all or any of the orders set out in section 994Q .

994P(2)    
An order under subsection (1) may be made against the person who engaged in the contravening conduct, or a person involved in that conduct.

994P(3)    
The Court must not make an order under subsection (1) unless the Court considers that the order will:

(a)    redress, in whole or in part, the loss or damage suffered by the non-party consumers in relation to the contravening conduct; or

(b)    prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party consumers in relation to the contravening conduct.

Application for orders

994P(4)    
An application may be made under subsection (1) even if a proceeding in relation to the contravening conduct has not been instituted.

994P(5)    
An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.

Determining whether to make an order

994P(6)    
In determining whether to make an order under subsection (1) against a person referred to in subsection (2) , the Court may have regard to the conduct of the person, and of the non-party consumers in relation to the contravening conduct, since the contravention occurred.

994P(7)    
In determining whether to make an order under subsection (1) , the Court need not make a finding about either of the following matters:

(a)    which persons are non-party consumers in relation to the contravening conduct;

(b)    the nature of the loss or damage suffered, or likely to be suffered, by such persons.

When a non-party consumer is bound by an order etc.

994P(8)    
If:

(a)    an order is made under subsection (1) against a person; and

(b)    the loss or damage suffered, or likely to be suffered, by a non-party consumer in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and

(c)    the non-party consumer has accepted the redress, prevention or reduction;

then:

(d)    the non-party consumer is bound by the order; and

(e)    any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non-party consumer; and

(f)    despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.