85

85 Retention of deposit or enforcement of deed for breach of procedures

(1) The ACMA on behalf of the Commonwealth may retain a deposit made by an applicant or bidder, or enforce a deed of financial security given by an applicant or bidder; if: (a) the ACMA is satisfied that: (i) the applicant or bidder, or a related person of the applicant or bidder, breached a provision of this instrument; and (ii) the breach affected, or may have affected, the outcome of the allocation process; or (b) the applicant failed to pay the balance of the upfront pre-determined price as required under subsection 45(2); or (c) the applicant failed to pay the first instalment as required under paragraph 46(2)(a); or (d) the applicant failed to give the ACMA the delayed pre-determined price bank guarantee in accordance with subsection 44(6); (e) the ACMA is satisfied that the bidder breached section 61; or (f) the bidder is a winning bidder who failed to give the statement required under section 68; or (g) the bidder is a winning bidder who failed to pay the balance of the upfront winning price as required under paragraph 75(2)(b); or (h) the bidder is a winning bidder who failed to pay the first auction instalment as required under subparagraph 75(3)(b)(i); or (i) the bidder is a winning bidder who failed to give the ACMA the delayed winning price bank guarantee in accordance with subsection 75(7); or (j) the ACMA is satisfied that the applicant or bidder, or a related person of the applicant or bidder, breached the confidentiality obligations under section 17 after the end of the auction period (but before the confidentiality obligations came to an end); or (k) the applicant or bidder failed to comply with a requirement in a notice given under subsection 82(1). (2) The ACMA must notify the applicant or bidder, in writing, of a decision under subsection (1) and the nature of the breach or failure before the later of: (a) six months after: (i) if notice was given to the applicant under subsection 45(1) or 46(1) – the day the notice was given; or (ii) in any other case – the end of the auction period; and (b) 6 months after the day on which the breach of failure mentioned in subsection (1) occurred. (3) A deposit retained under this section, or an amount obtained through enforcement of a deed of financial security, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 88.