THE CORPORATIONS LAW

CHAPTER 9 - MISCELLANEOUS

PART 9.5 - POWERS OF COURTS

SECTION 1318   POWER TO GRANT RELIEF  

If, in any civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity as such a person, it appears to the court before which the proceedings are taken that the person is or may be liable in respect of the negligence, default or breach but that the person has acted honestly and that, having regard to all the circumstances of the case, including those connected with the person's appointment, the person ought fairly to be excused for the negligence, default or breach, the court may relieve the person either wholly or partly from liability on such terms as the court thinks fit.

Where a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, breach of trust or breach of duty in a capacity as such a person, the person may apply to the Court for relief, and the Court has the same power to relieve the person as it would have had under subsection (1) if it had been a court before which proceedings against the person for negligence, default, breach of trust or breach of duty had been brought.

Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge after hearing the evidence may, if he or she is satisfied that the defendant ought pursuant to that subsection to be relieved either wholly or partly from the liability sought to be enforced against the person, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge thinks proper.

This section applies to a person who is:

(a)  an officer of a corporation;

(b)  an auditor of a corporation, whether or not the person is an officer of the corporation;

(c)  an expert in relation to a matter:

(i) relating to a corporation; and

(ii) in relation to which the civil proceeding has been taken or the claim will or might arise; or

(d)  a receiver, receiver and manager, liquidator or other person appointed or directed by the Court to carry out any duty under this Law in relation to a corporation.

For the purposes of this section, ``officer'' in relation to a corporation, means:

(a)  a director, secretary, executive officer or employee of the corporation;

(b)  a receiver, or receiver and manager, of property of the corporation;

(c)  an official manager or deputy official manager of the corporation;

(d)  a liquidator of the corporation; and

(e)  a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons.