68DDefences to alleged breach of subsection 68C(2)

##### 68D Defences to alleged breach of subsection 68C(2) (1) Where: (a) a person: (i) when making a recommendation orally, fails to disclose; or (ii) when making a recommendation in writing, fails to set out in that writing; as required by subsection 68C(2), particulars of a matter; and (b) it is proved that the person was not, and could not reasonably be expected to have been, aware of that matter when making the recommendation; the failure is not a contravention of that subsection. (2) Where: (a) a dealer or investment adviser, or a representative of a dealer or investment adviser: (i) when making a recommendation orally, fails to disclose; or (ii) when making a recommendation in writing, fails to set out in that writing; as required by subsection 68C(2), particulars of a matter; (b) in the case of a representative of a dealer or investment adviser—by making the recommendation, the representative does an act as a representative of the dealer or investment adviser; (c) it is proved that the dealer or investment adviser had in operation, throughout a period beginning before the decision to make the recommendation was made and ending after the recommendation was made, arrangements to ensure that: (i) the natural person who made the decision knew nothing about that matter before the end of that period; and (ii) no advice with respect to the making of the recommendation was given to the person by anyone who knew anything about that matter; and (d) it is also proved that: (i) the person in fact knew nothing about that matter before the end of that period; and (ii) no such advice was so given; the failure is not a contravention of that subsection. (3) Neither of subsections (1) and (2) limits the generality of the other.