Commonwealth Consolidated Acts

CORPORATIONS ACT 2001 - SECT 588GB

When books or information not admissible for the safe harbour

  (1)   If, at a particular time:

  (a)   a person fails to permit the inspection of, or deliver, any books of the company in accordance with:

  (i)   a notice given to the person under subsection   438C(3), section   477 or subsection   530B(4); or

  (ii)   an order made under section   486; or

  (iii)   subsection   438B(1), paragraph   453F(1)(c), section   453G or subsection   477(3) or 530A(1); or

  (b)   a warrant is issued under subsection   530C(2) because the Court is satisfied that a person has concealed, destroyed or removed books of the company or is about to do so;

those books, and any secondary evidence of those books, are not admissible in evidence for the person in a relevant proceeding.

Note:   For subparagraph   (a)(i), a liquidator could give such a notice if this is necessary for winding up the affairs of the company and distributing its property (see paragraph   477(2)(m)).

  (2)   If, at a particular time, a person fails to give any information about the company in accordance with:

  (a)   a notice given to the person under section   477; or

  (b)   paragraph   429(2)(b), subsection   438B(2) or (3), paragraph   453F(1)(b) or subsection   475(1), 497(4) or 530A(1) or (2);

that information is not admissible in evidence for the person in a relevant proceeding.

Exceptions

  (3)   However, subsection   (1) or (2) does not apply to a person, and a book or information, if:

  (a)   the person proves that:

  (i)   the person did not possess the book or information at any time referred to in that subsection; and

  (ii)   there were no reasonable steps the person could have taken to obtain the book or information; or

  (b)   each entity seeking to rely on the notice, order, subsection, paragraph or warrant referred to in that subsection fails to comply with subsection   (5) in relation to the person; or

  (c)   an order applying to the person, and the book or information, is in force under subsection   (4).

  (4)   The Court may order that subsection   (1) or (2) does not apply to a person, and a book or information, if:

  (a)   the Court is satisfied that the failures by the person as mentioned in that subsection were due to exceptional circumstances or that it is otherwise in the interests of justice to make the order; and

  (b)   an application for the order is made by the person.

Notice of effect of this section must be given

  (5)   An entity that seeks to rely on a notice, order, subsection or warrant referred to in subsection   (1) or (2) must set out the effect of this section:

  (a)   for a notice under subsection   438C(3), section   477 or subsection   530B(4)--in that notice; or

  (b)   for an order under section   486 or for subsection   438B(3), 477(3) or 530A(2)--in a written notice given to the person when the entity seeks to rely on that order or subsection; or

  (c)   for a warrant issued under subsection   530C(2)--in a written notice given to the person when the entity seeks to exercise the warrant.

This subsection does not apply to an entity that seeks to rely on paragraph   429(2)(b), subsection   438B(1) or (2), paragraph   453F(1)(c), section   453G or subsection   475(1), 497(4) or 530A(1).

  (6)   A failure to comply with subsection   (5) does not affect the validity of the notice, order, subsection or warrant referred to in subsection   (5).

Definitions

  (7)   In this section:

"relevant proceeding" means a proceeding:

  (a)   for, or relating to, a contravention of subsection   588G(2) or 588GAB(1) or (2) or 588GAC(1) or (2); and

  (b)   in which a person seeks to rely on subsection   588GA(1) or 588GAAA(1).

Example:   A proceeding under section   588M.