CORPORATIONS ACT 1989 No. 109 of 1989 - SECT 232 Duty and liability of officers of certain bodies corporate

CORPORATIONS ACT 1989 No. 109 of 1989 - SECT 232

232. (1) In this section:

"officer", in relation to a body corporate, means:

   (a)  a director, secretary or executive officer of the body corporate;

   (b)  a receiver, or receiver and manager, of property of the body
        corporate, or any other authorised person who enters into possession
        or assumes control of property of the body corporate for the purpose
        of enforcing any charge;

   (c)  an official manager or a deputy official manager of the body
        corporate;

   (d)  a liquidator of the body corporate; and

   (e)  a trustee or other person administering a compromise or arrangement
        made between the body corporate and another person or other persons;

"relevant body corporate" means:

   (a)  a company;

   (b)  a foreign corporation; or

   (c)  a prescribed corporation.

(2) An officer of a relevant body corporate shall at all times act honestly in
the exercise of his or her powers and the discharge of the duties of his or
her office.

(3) The penalty applicable to a contravention of subsection (2) is:

   (a)  if the contravention was committed with intent to deceive or defraud
        the company, members or creditors of the company or creditors of any
        other person or for any other fraudulent purpose-$20,000 or
        imprisonment for 5 years, or both; or

   (b)  otherwise-$5,000.

(4) An officer of a relevant body corporate shall at all times exercise a
reasonable degree of care and diligence in the exercise of his or her powers
and the discharge of his or her duties.

(5) An officer or employee of a relevant body corporate, or a former officer
or employee of a relevant body corporate, shall not make improper use of
information acquired by virtue of his or her position as such an officer or
employee to gain, directly or indirectly, an advantage for himself or herself
or for any other person or to cause detriment to the body corporate.

(6) An officer or employee of a relevant body corporate shall not make
improper use of his or her position as such an officer or employee, to gain,
directly or indirectly, an advantage for himself or herself or for any other
person or to cause detriment to the body corporate.

(7) Where:

   (a)  a person is convicted of an offence for a contravention of this
        section; and

   (b)  the court is satisfied that the body corporate has suffered loss or
        damage as a result of the act or omission that constituted the
        offence; the court by which the person is convicted may, in addition
        to imposing a penalty, order the convicted person to pay compensation
        to the body corporate of such amount as that court specifies, and any
        such order may be enforced as if it were a judgment of that court.

(8) Where a person contravenes a provision of this section in relation to a
body corporate, the body corporate may, whether or not the person has been
convicted of an offence in respect of that contravention, recover from the
person as a debt due to the body corporate by action in any court of competent
jurisdiction:

   (a)  if that person or any other person made a profit as a result of the
        contravention-an amount equal to that profit; and

   (b)  if the body corporate has suffered loss or damage as a result of the
        contravention-an amount equal to that loss or damage.

(9) Where a person who contravenes this section has been found by a court to
be liable to pay an amount to a person because of a contravention of Part 7.11
that arose out of or was constituted by the same act or transaction as the
contravention of this section, the amount of the liability of the person under
this section shall be reduced by the first-mentioned amount.

(10) For the purposes of subsection (9), the onus of proving that the
liability of a person to pay an amount to another person arose from the same
act or transaction as that from which another liability arose lies on the
person liable to pay the amount.

(11) This section has effect in addition to, and not in derogation of, any
rule of law relating to the duty or liability of a person by reason of the
person's office or employment in relation to a body corporate and does not
prevent the institution of any civil proceedings in respect of a breach of
such a duty or in respect of such a liability.