Superannuation Industry (Supervision) Act 1993

PART 16A - APRA ' S POWERS TO ISSUE DIRECTIONS  

Division 2 - Directions to relinquish control over an RSE licensee  

SECTION 131EF   Remedial orders  

131EF(1)    
The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under this section if a direction to relinquish control over an RSE licensee is in force in relation to a person.

131EF(2)    
The Federal Court may make such orders as the court considers appropriate to ensure that:

(a) the directors of the RSE licensee are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and

(b) the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and

(c) the person does not hold a controlling stake in the RSE licensee.

131EF(3)    
However, the Federal Court may only make orders under this section if the court is satisfied that:

(a) both of the following are satisfied:

(i) the person holds a controlling stake in the RSE licensee, or has practical control of the RSE licensee;

(ii) because of the person ' s control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee ' s obligations contained in a covenant set out in sections 52 to 53 , or prescribed under section 54A ; or

(b) both of the following are satisfied:

(i) the person holds a controlling stake in the RSE licensee;

(ii) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee; or

(c) each of the following is satisfied:

(i) the person has a controlling stake in the RSE licensee;

(ii) the person has approval under section 29HD to hold a controlling stake in the RSE licensee;

(iii) information given to the Regulator in relation to the application for approval was false or misleading in a material particular.

131EF(4)    
The Federal Court ' s orders include:

(a) an order directing the disposal of shares; or

(b) an order restraining the exercise of any rights attached to shares; or

(c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or

(d) an order that any exercise of rights attached to shares be disregarded.

131EF(5)    
Subsection (4) does not, by implication, limit subsection (2).

131EF(6)    
In addition to the Federal Court ' s powers under subsections (2) and (4), the court:

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

(b) has power to make an order containing such ancillary or consequential provisions as the court thinks just.

131EF(7)    
The Federal Court may, before making an order under this section, direct that notice of the Regulator ' s application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

131EF(8)    
The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.