253.
—(1) Where an offer of securities is made in or accompanied by a prospectus or profile statement, or, in the case of an offer referred to in section 280, where a prospectus or profile statement is prepared and issued in relation to the offer, and —
(a)
a false or misleading statement is contained in —
(i)
the prospectus or the profile statement; or
(ii)
any application form for the securities;
(b)
there is an omission to state any information required to be included in the prospectus under section 243 or there is an omission to state any information required to be included in the profile statement under section 246, as the case may be; or
(c)
there is an omission to state a new circumstance that —
(i)
has arisen since the prospectus or the profile statement was lodged with the Authority; and
(ii)
would have been required to be included in the prospectus under section 243, or required to be included in the profile statement under section 246, as the case may be, if it had arisen before the prospectus or the profile statement was lodged with the Authority,
the persons referred to in subsection (4) shall be guilty of an offence even if such persons, unless otherwise specified, were not involved in the making of the false or misleading statement or the omission, and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part thereof during which the offence continues after conviction.
[16/2003; 1/2005]
(2) For the purposes of subsection (1), a false or misleading statement about a future matter (including the doing of, or the refusal to do, an act) is taken to have been made if a person made the statement without having reasonable grounds for making the statement.
(3) A person shall not be taken to have contravened subsection (1) if the false or misleading statement, or the omission to state any information or new circumstance, is not materially adverse from the point of view of the investor.
(4) The persons guilty of the offence are —
(a)
the person making the offer;
(b)
where the person making the offer is an entity —
(i)
each director or equivalent person of the entity; and
(ii)
if the entity is also the issuer, each person who is, and who has consented to be, named in the prospectus or profile statement as a proposed director or an equivalent person of the entity;
(c)
where the issuer is controlled by the person making the offer, one or more of the related parties of the person making the offer, or the person making the offer and one or more of his related parties —
(i)
the issuer;
(ii)
each director or equivalent person of the issuer; and
(iii)
each person who is, and who has consented to be, named in the prospectus or profile statement as a proposed director or an equivalent person of the issuer;
(d)
an issue manager to the offer of the securities who is, and who has consented to be, named in the prospectus or profile statement, if —
(i)
he intentionally or recklessly makes the false or misleading statement or omits to state the information or circumstance;
(ii)
knowing that the statement in the prospectus or profile statement is false or misleading or that the information or circumstance has been omitted, he fails to take such remedial action as is appropriate in the circumstances without delay; or
(iii)
he is reckless as to whether the statement is false or misleading or whether the information or circumstance has been included;
(e)
an underwriter (but not a sub-underwriter) to the issue or sale of the securities who is, and who has consented to be, named in the prospectus or profile statement, if —
(i)
he intentionally or recklessly makes the false or misleading statement or omits to state the information or circumstance;
(ii)
knowing that the statement is false or misleading or that the information or circumstance has been omitted, he fails to take such remedial action as is appropriate in the circumstances without delay; or
(iii)
he is reckless as to whether the statement is false or misleading or whether the information or circumstance has been included;
(f)
a person named in the prospectus or the profile statement with his consent as having made —
(i)
the statement that is false or misleading, if he intentionally or recklessly makes that statement; or
(ii)
a statement on which the false or misleading statement is based, if he knows that the second-mentioned statement is false or misleading and fails to take immediate steps to withdraw his consent,
but only in respect of the inclusion of the false or misleading statement; and
(g)
any other person who intentionally or recklessly makes the false or misleading statement, or omits to state the information or circumstance, as the case may be, but only in respect of the inclusion of the statement or the omission to state the information or circumstance, as the case may be.
[1/2005]
(5) For the purposes of subsection (4) and this subsection —
(a)
remedial action includes any of the following:
(i)
preventing the statement from being included, or having the information or circumstance included, in the prospectus or profile statement, as the case may be;
(ii)
procuring the lodgment of a supplementary or replacement prospectus under section 241; and
(b)
a person is reckless as to the matter referred to in subsection (4)(d)(iii) or (e)(iii) if, having been put upon inquiry that the statement to be, or which has been, included in the prospectus or profile statement is likely to be false or misleading, that the information or circumstance is likely to be required to be included in that document, or that there is likely to be an omission to state the information or circumstance in that document, he fails to —
(i)
make all inquiries as are reasonable in the circumstances to verify this; and
(ii)
take such remedial action as is appropriate in the circumstances without delay, if such action is warranted by the outcome of the inquiries.
[1/2005]
(6) For the purposes of this section, any reference to a statement shall include a reference to any information presented, regardless of whether such information is in text or otherwise.
[1/2005]
[Companies, s. 56; Aust. Corporations 2001, s. 728]