102Exercise of directors’ powers while body corporate under statutory management

102 Exercise of directors’ powers while body corporate under statutory management

(1) A person contravenes this subsection if:

(a) the person is a director of a body corporate; and

(b) the body corporate is under statutory management; and

(c) the person performs or exercises, or purports to perform or exercise, a function or power of a director.

(2) Subsection (1) does not apply to the extent that the director of the body corporate is acting with the written approval of the statutory manager of the body corporate or the Reserve Bank.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 30 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: The greater of:

(a) 5,000 penalty units; and

(b) if the court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3.

Reserve Bank may revoke or vary the approval

(5) If a statutory manager (other than the Reserve Bank) gives written approval for the purposes of subsection (2), the statutory manager must immediately notify the Reserve Bank in writing.

(6) The Reserve Bank may decide to revoke or vary the approval. The Reserve Bank’s decision takes effect from the time the director is notified of the decision in writing.

Functions and powers of statutory manager prevail in case of conflict

(7) If:

(a) subsection (2) applies; and

(b) there is a conflict between:

(i) a function or power of the statutory manager of the body corporate; and

(ii) a function or power of the director in relation to the body corporate;

the statutory manager’s function or power prevails.

Effect of this section

(8) This section does not remove a director of a body corporate from office.

(9) Nothing in this section affects a secured creditor’s right to realise or otherwise deal with a security interest.