541Order against person concerned with co-operative (cf Corporations Act s 598)

541 Order against person concerned with co-operative (cf Corporations Act s 598)

(1) Subject to subsection (2), where, on application by an eligible applicant, the Supreme Court is satisfied that:

(a) a person is guilty of fraud, negligence, default, breach of trust or breach of duty in relation to a co-operative; and

(b) the co-operative has suffered, or is likely to suffer, loss or damage as a result of the fraud, negligence, default, breach of trust or breach of duty;

the court may make such order or orders as it thinks appropriate against or in relation to the person (including either or both of the orders specified in subsection (3)) and may so make an order against or in relation to a person even though the person may have committed an offence in respect of the matter to which the order relates.

(2) The Supreme Court must not make an order against a person under subsection (1) unless the court has given the person the opportunity:

(a) to give evidence; and

(b) to call witnesses to give evidence; and

(c) to bring other evidence in relation to the matters to which the application relates; and

(d) to employ, at the person’s own expense, an Australian legal practitioner to put to the person, or to any other witness, such questions as the court considers just for the purpose of enabling the person to explain or qualify any answers or evidence given by the person.

(3) The orders that may be made under subsection (1) against a person include:

(a) an order directing the person to pay money or transfer property to the co-operative; and

(b) an order directing the person to pay to the co-operative the amount of the loss or damage.

(4) Nothing in this section prevents any person from instituting any other proceedings in relation to matters in respect of which an application may be made under this section.

eligible applicant, in relation to a co-operative, means:

(b) a liquidator or provisional liquidator of the co-operative; or

(c) an administrator of the co-operative; or

(d) an administrator of a deed executed by the co-operative under section 382; or

(e) a person authorised in writing by the Registrar to make an application under this section in relation to the co-operative.

Note. Section 561 provides that the Supreme Court must not make a declaration of contravention or a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.