Victorian Current Acts

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INFRINGEMENTS ACT 2006 - SECT 91

Enforcement against bodies corporate

    (1)     An infringements registrar

        (a)     may declare that any person who was a director of a body corporate at the time of the commission of an offence by the body corporate for which an infringement notice was issued is jointly and severally liable for the payment of the fine; and

        (b)     may issue an infringement warrant against that person if—

              (i)     the person executing an infringement warrant issued against a body corporate returns that he or she cannot find sufficient personal property of the body corporate on which to levy the amounts named in the infringement warrant together with all lawful costs of execution; and

              (ii)     the infringements registrar receives from a prescribed person a certificate purporting to be given by that person stating that it appears from a return or returns lodged under the Corporations Act that a person was a director of the body corporate in default at the time of the commission of the offence for which the infringement notice was issued.

    (2)     A certificate referred to in subsection (1)(b)(ii) may be provided to the infringements registrar electronically.

    (3)     An infringements registrar must not make a declaration under subsection (1) in respect of, or issue an infringement warrant against, a director until the infringements registrar has given 28 days' notice in writing by post to the director of the infringements registrar's intention to make the declaration and issue the infringement warrant.

    (4)     At the end of 28 days after the date of the notice under subsection (3), the infringements registrar must make the declaration under subsection (1) in respect of, and issue an infringement warrant against, the director unless—

        (a)     the amount then outstanding is paid; or

        (b)     the director satisfies the infringements registrar that—

              (i)     at the time of the commission of the offence he or she had reasonable grounds for believing and did believe that the body corporate would be able to meet any liabilities that it incurred at that time; and

              (ii)     he or she had taken all reasonable steps in carrying on the business of the body corporate to ensure that it would be able to meet its liabilities as and when they became due; or

        (c)     the director applies to the infringements registrar to have the matter referred to the Court.

    (5)     If a director applies to an infringements registrar under subsection (4)(c) to have the matter referred to the Court, the infringements registrar must—

        (a)     refer the matter to the Court; and

        (b)     cause a notice of the time and place of hearing to be given or sent to the director.

    (6)     If a director of a body corporate makes application under subsection (4)(c), no other director of that body corporate may make an application in relation to the same matter.

    (7)     On hearing a matter referred under subsection (5), the Court may—

        (a)     make the declaration that the infringements registrar could have made under subsection (1) in respect of the director and order an infringements registrar to issue an infringement warrant against the director unless—

              (i)     the amount then outstanding is paid; or

              (ii)     the director satisfies the Court that—

    (A)     at the time of the commission of the offence he or she had reasonable grounds for believing and did believe that the body corporate would be able to meet any liabilities that it incurred at that time; and

    (B)     he or she had taken all reasonable steps in carrying on the business of the body corporate to ensure that it would be able to meet its liabilities as and when they became due; or

        (b)     refer the matter back to an infringements registrar for the making of a declaration in respect of the director and the issuing of an infringement warrant against the director.

    (8)     If under this section more than one person is obliged to pay a fine, the obligation must be taken to have been discharged if it is discharged by any one of them.

    (9)     For the purposes of subsection (8), "discharged" includes the satisfaction of any obligation to which an infringement warrant applies by any director, including imprisonment of a director.



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