Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.3 - CORPORATE GOVERNANCE OF CCIVs  

Division 7 - Corporate contraventions  

Subdivision A - General provisions relating to establishing civil and criminal liability under Commonwealth laws  

SECTION 1229B   GENERAL RULE FOR ATTRIBUTING CONDUCT AND STATE OF MIND TO A CCIV  

Attributing conduct to a CCIV

1229B(1)    
Conduct engaged in by a person (other than a CCIV) is taken to have been engaged in also by a CCIV if:

(a)    the person is specified in column 1 of an item of the table in subsection (4) in relation to the CCIV; and

(b)    the conduct was engaged in on behalf of the CCIV; and

(c)    in engaging in the conduct, the person met any conditions specified in column 2 of that item of the table.

Attributing conduct to a person in relation to a CCIV

1229B(2)    
Conduct engaged in by a person in relation to another person (other than a CCIV) (the counterparty ) is taken to have also been engaged in in relation to a CCIV if:

(a)    the counterparty is specified in column 1 of an item of the table in subsection (4) in relation to the CCIV; and

(b)    the counterparty was acting on behalf of the CCIV; and

(c)    in acting on behalf of the CCIV, the counterparty met any conditions specified in column 2 of that item of the table.

Note: For example, money given to a person specified in column 1 of an item of the table in relation to a CCIV is taken to have been given to the CCIV, if the person was acting on behalf of the CCIV when they received the money.

Attributing state of mind to a CCIV

1229B(3)    
If, for the purposes of a provision of a law of the Commonwealth, it is necessary to establish a CCIV ' s state of mind in relation to particular conduct, it is sufficient to show that:

(a)    a person specified in column 1 of an item of the table in subsection (4) in relation to the CCIV engaged in the conduct on behalf of the CCIV; and

(b)    in engaging in the conduct, the person met any conditions specified in column 2 of that item of the table; and

(c)    the person had that state of mind.

Specified persons and applicable conditions

1229B(4)    
For the purposes of subsections (1) , (2) and (3) , the table is as follows:

Persons whose conduct and state of mind may be attributed to a CCIV
Item	Column 1 Person specified for a CCIV:	Column 2 Condition:
1	An agent of the CCIV (other than an agent covered by subsection (5) )	the agent was acting within the scope of that agent ' s actual or apparent authority in relation to the CCIV.
2	A director of the CCIV	no specified conditions.
3	An employee, director or agent (an official ) of the corporate director of the CCIV	the official was acting within the scope of the official ' s actual or apparent authority in relation to the corporate director.
4	Any other person acting at the direction, or with the consent or agreement (whether express or implied) of, a person (the first person ) specified in another item of this table in relation to the CCIV	in giving the direction, consent or agreement, the first person meets any conditions specified in this column of the applicable table item.

1229B(5)    
For the purposes of item 1 of the table in subsection (4) , this subsection covers the following:

(a)    an agent who is, or is appointed by, a receiver, or receiver and manager, of property of a sub-fund of the CCIV;

(b)    an agent who is, or is appointed by, a liquidator or provisional liquidator of a sub-fund of the CCIV;

(c)    an agent who is, or is appointed by, a trustee or other person administering a compromise or arrangement made between the CCIV and someone else.

1229B(6)    
For the purposes of this section, treat a person as acting on behalf of a CCIV if the person acted on behalf of the corporate director of the CCIV in its capacity as director of the CCIV.

Interpretation

1229B(7)    
In this section:

conduct
has the same meaning as it has in section 769B .

state of mind
has the same meaning as it has in section 769B .