New South Wales Consolidated Acts

ASSOCIATIONS INCORPORATION ACT 1984 - SECT 40

40 Powers of Court

(1) Where a person has been convicted of an offence under section 38 (1) in respect of the incurring of a debt, the Court, on the application of the Director-General or of the person to whom the debt is payable, may, if it thinks it proper to do so, declare that the first-mentioned person shall be personally responsible without any limitation of liability for the payment to the person to whom the debt is payable of an amount equal to the whole of the debt or such part of it as the Court thinks proper.

(2) Where a person has been convicted of an offence under section 38 (5), the Court, on the application of the Director-General or of a prescribed person, may, if it thinks it proper to do so, declare that the first-mentioned person shall be personally responsible without any limitation of liability for the payment of the association of the amount required to satisfy so much of the debts of the association as the Court thinks proper.

(3) For the purposes of subsection (2), in relation to an association in respect of which a conviction referred to in that subsection relates:

(a) the appropriate officer, and

(b) a member or creditor of the association authorised by the Director-General to make an application under that subsection,

are prescribed persons.

(4) Where the Court makes a declaration under subsection (1) in relation to a person, it may give such further directions as it thinks proper for the purpose of giving effect to that declaration.

(5) In particular, the Court may order that the liability of the person under the declaration shall be a charge:

(a) on a debt or obligation due from the association to the person, or

(b) on a right or interest under a charge on any property of the association held by or vested in the person liable or a person on behalf of the person liable, or a person claiming as assignee from or through the person liable or a person acting on behalf of the person liable.

(6) The Court may, from time to time, make such further order as it thinks proper for the purpose of enforcing a charge imposed under subsection (5).

(7) For the purpose of subsection (5), "assignee" includes a person to whom or in whose favour, by the direction of the person liable, the debt, obligation or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration, not including consideration by way of marriage, given in good faith and without actual knowledge of any of the matters upon which the conviction or declaration was made.

(8) On the hearing of an application under subsection (1) or (2), the appropriate officer or other applicant may give evidence personally or call witnesses.