32CNomination of proper defendant

32C Nomination of proper defendant

(1) This section applies if a relevant entity is not capable of being sued in relation to any claim founded on or arising from a contravention of this Part.

(2) The relevant entity, with the consent of the nominee, may nominate an entity that is capable of being sued—

(a) to act as a proper defendant to the claim on behalf of the relevant entity; and

(b) to incur any liability arising from the claim on behalf of the relevant entity.

(3) If a relevant entity nominates a proper defendant under subsection (2), the nominee—

(a) is taken to be the defendant (however described) in the claim on behalf of the relevant entity for all purposes; and

(b) incurs any liability arising from that claim on behalf of the relevant entity as if the relevant entity had been incorporated and capable of being sued and found liable for the contravention; and

(c) must comply with any order or direction of the court arising from the claim on behalf of the relevant entity as if the relevant entity had been incorporated and capable of being sued and found liable for the contravention.

(4) The relevant entity must nominate a proper defendant within 120 days after the commencement of the proceeding for the claim against the relevant entity, unless the court orders otherwise.

(5) If the relevant entity does not nominate a proper defendant within 120 days after the commencement of the proceeding for the claim (or any other period ordered by the court), the sector regulator bringing the proceeding for the claim may apply to the court for an order that the claim is to proceed against another entity that is capable of being sued on behalf of the relevant entity.

(6) A court may substantively determine a claim in a proceeding founded on or arising from a contravention of this Part for which there is a proper defendant under this section as if the relevant entity itself were incorporated and capable of being sued and found liable for the contravention of this Part in respect of the claim.

(7) The nomination of, or failure to nominate, a proper defendant under this section does not relieve a relevant entity from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the relevant entity is taken to be incorporated and capable of being sued and found liable for the contravention of this Part in respect of the claim.

New s. 33 inserted by No. 63/2016 s. 8.