Commonwealth Consolidated Regulations

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Discretion to pay amounts not received etc because of failure to transfer securities

             (1)  This regulation applies if the SEGC is satisfied that:

                     (a)  a person (the defaulter ) has failed to discharge an obligation to transfer securities to another person (the entitled entity ); and

                     (b)  the entitled entity:

                              (i)  has made a claim in respect of the failure and has had securities transferred to it, or an amount paid to it, in satisfaction of the claim; or

                             (ii)  would have been entitled to make a claim in respect of the failure if securities had not been transferred to it for the purpose of remedying the failure; and

                     (c)  if the defaulter had duly transferred securities in accordance with the obligation, an amount would have been paid, or property would have been transferred, to the entitled entity as the holder of the securities; and

                     (d)  the entitled entity has not received, and is not entitled to receive (otherwise than from the defaulter):

                              (i)  the amount or property; or

                             (ii)  an equivalent amount or equivalent property in respect of securities transferred or obtained as mentioned in paragraph (b); and

                     (e)  if subparagraph (b)(i) applies, and an amount has been paid in satisfaction of the claim, the amount paid does not adequately compensate the entitled entity for the loss of the amount or property mentioned in paragraph (c).

             (2)  The SEGC may determine in writing that the entitled entity is to be paid, in respect of the loss of the amount or property mentioned in paragraph (1)(c), a specified amount that the SEGC considers to be fair and reasonable in the circumstances.

             (3)  If a determination is made under subregulation (1), the SEGC must pay to the entitled entity the amount specified in the determination.

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