Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.3 - CORPORATE GOVERNANCE OF CCIVs  

Division 3 - Officers, employees and auditors of the corporate director  

Subdivision A - Officers and auditors of the corporate director  

SECTION 1225   RETAIL CCIV - DUTIES OWED BY OFFICERS OF CORPORATE DIRECTOR  

1225(1)    
An officer of the corporate director of a retail CCIV must, in performing functions and exercising powers relating to the CCIV:

(a)    act honestly; and

(b)    exercise the degree of care and diligence that a reasonable person would exercise in the officer ' s position; and

(c)    act in the best interests of the members of the CCIV and, if there is a conflict between the interests of those members and the interests of the corporate director, give priority to the members ' interests; and

(d)    act in the best interests of the members, as a whole, of each sub-fund of the CCIV and:

(i) if there is a conflict between the interests of the members, as a whole, of a sub-fund and the interests of the corporate director, give priority to the members ' interests; and

(ii) if there is a conflict between the interests of the members, as a whole, of a sub-fund and the best interests of the members of the CCIV, give priority to the interests of the members of the CCIV; and

(e)    not make use of information acquired through being an officer of the corporate director in order to:

(i) gain an improper advantage for the officer or another person; or

(ii) cause detriment to the members of the CCIV; and

(f)    not make improper use of their position as an officer to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the CCIV; and

(g)    take all steps that a reasonable person would take, in the officer ' s position, to ensure that the corporate director complies with:

(i) this Act; and

(ii) any conditions imposed on the corporate director ' s Australian financial services licence; and

(iii) the CCIV ' s constitution; and

(iv) the CCIV ' s compliance plan.

Note: This subsection is a civil penalty provision (see section 1317E ).

1225(2)    
A person must not intentionally or recklessly contravene, or be involved in a contravention of, subsection (1) .

Duties under this section prevail in case of conflict

1225(3)    
If there is a conflict between a duty owed by an officer of the corporate director of a retail CCIV under this section and a duty owed by the officer under Part 2D.1 , the duty owed under this section prevails.

Interaction with other laws etc.

1225(4)    
Subsection (1) :

(a)    has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and

(b)    does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a) .