New South Wales Consolidated Acts

FAIR TRADING ACT 1987 - SECT 78

78 Court may make orders for the purpose of preserving money or other property held by a person

(1) The Supreme Court may, on the application of the Minister or the Secretary, make an order or orders referred to in subsection (3) if--

(a) proceedings of a kind referred to in subsection (2) have been taken against a person, or proceedings of a kind referred to in subsection (2) (e) or (f) may be taken against a person, and

(b) the Court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable, or may become liable, under this Act--

(i) to pay money by way of a fine, damages, compensation, refund or otherwise, or

(ii) to transfer, sell or refund other property, and

(c) the Court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person.

(2) For the purposes of subsection (1) (a), the kinds of proceedings taken against the person are--

(a) proceedings against the person for an offence against this Act, or

(b) an application under section 232 of the ACL for an injunction against the person in relation to--

(i) a local contravention or a contravention of a provision of Chapter 2, 3 or 4 of the ACL, or

(ii) a term of a consumer contract in relation to which a declaration under section 250 of the ACL has been made, or

(c) an application under section 79 for an injunction against a person in relation to a contravention referred to in that section, or

(d) an action under section 236 (1) of the ACL against the person in relation to a local contravention or a contravention of a provision of Chapter 2 or 3 of the ACL, or

(e) an application for an order under section 237 (1) or 239 (1) of the ACL against the person in relation to--

(i) a contravention of a provision of Chapter 2, 3 or 4 of the ACL, or

(ii) a term of a consumer contract in relation to which a declaration under section 250 of the ACL has been made, or

(f) an application for an order under section 237 (1) of the ACL in relation to a local contravention, or

(g) an application for an order under section 73 in relation to the person.

(3) The Supreme Court may make the following orders under subsection (1) in relation to money or other property held by, or on behalf of, a person (
"the respondent" )--

(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt--

(i) to the respondent, or

(ii) to another person at the direction or request of the respondent,

(b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent--

(i) from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent, or

(ii) from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property,

(c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which the money is held,

(d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which that property is located,

(e) if the respondent is a natural person--an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.

(4) If the Supreme Court makes such an order, the order operates--

(a) for the period specified in the order (which must not be longer than 30 days if the application for the order was an ex parte application), or

(b) if proceedings in relation to which the order is made are concluded before the end of that period--until the conclusion of those proceedings.

(5) A person who contravenes an order by the Supreme Court under this section that is applicable to the person is guilty of an offence punishable on conviction--

(a) in the case of a person other than a body corporate--by a fine not exceeding 200 penalty units, or

(b) in the case of a body corporate--by a fine not exceeding 1,000 penalty units.

(6) This section does not affect any other powers of the Supreme Court.

(7) A reference in this section to a person who is an associate of a respondent is a reference to--

(a) a person holding money or other property on behalf of the respondent, or

(b) if the respondent is a body corporate--a wholly owned subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the respondent.