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CORPORATIONS ACT 2001 No. 50, 2001 - SECT 850
Defences to alleged breach of subsection 849(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 849(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 849(2), particulars of a matter; and
(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
; and
(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.
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