On 23/05/2013,
you requested for the version in force on 23/05/2013
incorporating all amendments published on or before 23/05/2013.
The closest version currently available is that of 23/02/2009.
61. The principal Act is amended by inserting, immediately after section 236, the following Division and sections:
236A. In this Division, unless the context otherwise requires —
“defendant” means an individual liable to an order for a civil penalty under section 236H in respect of a contravention of any provision in this Part committed by a corporation, partnership, limited liability partnership or unincorporated association;
“defendant corporation” means a corporation ––
(a)
liable to be punished under section 236B(1) or to an order for a civil penalty under section 236B(3) in respect of a contravention of any provision in this Part committed by its employee or officer; or
(b)
liable to an order for a civil penalty under section 236C(1);
“defendant partnership” means a partnership or limited liability partnership ––
(a)
liable to be punished under section 236E(1) or to an order for a civil penalty under section 236E(3) in respect of a contravention of any provision in this Part committed by a partner or employee of the partnership or a partner, manager or employee of the limited liability partnership, as the case may be; or
(b)
liable to an order for a civil penalty under section 236F(1);
“partnership”, for the purposes of Subdivision (2), means the partnership at the time of the contravention by the contravening person referred to in section 236E(1) or 236F(1), as the case may be.
Subdivision (1) — Corporations
Liability of corporation when employee or officer commits contravention with consent or connivance of corporation
236B.
—(1) Where an offence of contravening any provision in this Part is proved to have been committed by an employee or an officer of a corporation (referred to in this section as the contravening person) —
(a)
with the consent or connivance of the corporation; and
(b)
for the benefit of the corporation,
the corporation shall be guilty of that offence as if the corporation had committed the contravention, and shall be liable to be proceeded against and punished accordingly.
(2) No proceedings shall be instituted against a corporation under subsection (1) after —
(a)
a court has made an order against the corporation for the payment of a civil penalty under subsection (3); or
(b)
the corporation has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5) (as that provision is applied to an action under subsection (3) by subsection (6)),
in respect of the same contravention.
(3) Where it appears to the Authority that a corporation is liable to be punished under subsection (1) for a contravention committed by a contravening person, the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the corporation to seek an order for a civil penalty in respect of that contravention as if the corporation had committed the contravention, whether or not such action is brought against the contravening person.
(4) If the court in subsection (3) is satisfied on a balance of probabilities that the corporation is liable to be punished under subsection (1) for a contravention of any provision in this Part, which contravention resulted in the corporation gaining a profit or avoiding a loss, the court may make an order against the corporation for the payment of a civil penalty of a sum —
(a)
not exceeding 3 times —
(i)
the amount of the profit that the corporation gained; or
(ii)
the amount of the loss that it avoided,
as a result of the contravention by the contravening person; or
(b)
equal to $100,000,
whichever is the greater.
(5) If the court in subsection (3) is satisfied on a balance of probabilities that the corporation is liable to be punished under subsection (1) for a contravention of any provision in this Part, which contravention did not result in the corporation gaining a profit or avoiding a loss, the court may make an order against the corporation for the payment of a civil penalty of a sum not less than $50,000 and not more than $2 million.
(6) Sections 232(4) to (7) and 233 shall apply in relation to an action brought against a corporation under subsection (3) as they apply in relation to an action under section 232.
(7) Any defence that would be available to —
(a)
the contravening person if he were prosecuted for his contravention; or
(b)
the corporation if it were prosecuted under subsection (1) in respect of that contravention,
shall also be available to the corporation in an action under subsection (3) in respect of that contravention.
(8) The means by which consent or connivance of the corporation under subsection (1) or (3) may be established include proving that —
(a)
the corporation’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention;
(b)
a high managerial agent of the corporation intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention; or
(c)
a corporate culture existed within the corporation that directed or encouraged non-compliance with the relevant provision.
(9) In this section —
“board of directors” means the body (by whatever name called) exercising the executive authority of the corporation;
“corporate culture” means an attitude, policy, rule, course of conduct or practice existing within the corporation generally or in the part of the corporation in which the relevant activity takes place;
“high managerial agent” means an employee, agent or officer of the corporation with duties of such responsibility that his conduct may fairly be assumed to represent the corporation’s policy.
236C.
—(1) A corporation which fails to prevent or detect a contravention of any provision in this Part committed by an employee or officer of the corporation (referred to in this section as the contravening person), which contravention is —
(a)
committed for the benefit of the corporation; and
(b)
attributable to the negligence of the corporation,
commits a contravention and shall be liable to an order for a civil penalty under this section.
(2) Where it appears to the Authority that a corporation has committed a contravention under subsection (1), the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the corporation to seek an order for a civil penalty.
(3) If the court is satisfied on a balance of probabilities that the corporation has committed a contravention under subsection (1), which resulted in the corporation gaining a profit or avoiding a loss, the court may make an order against the corporation for the payment of a civil penalty of a sum —
(a)
not exceeding 3 times —
(i)
the amount of the profit that the corporation gained; or
(ii)
the amount of the loss that it avoided,
as a result of the contravention by the contravening person; or
(b)
equal to $100,000,
whichever is the greater.
(4) If the court is satisfied on a balance of probabilities that the corporation has committed a contravention under subsection (1), which did not result in the corporation gaining a profit or avoiding a loss, the court may make an order against the corporation for the payment of a civil penalty of a sum not less than $50,000 and not more than $2 million.
(5) Sections 232(4) to (7) and 233 shall apply in relation to an action brought against a corporation under subsection (2) as they apply in relation to an action under section 232.
(6) Any defence that would be available to the contravening person if he were prosecuted for his contravention shall also be available to the corporation in an action under subsection (2) in respect of its failure to prevent or detect that contravention.
(7) For the purposes of subsection (1), in determining whether a contravention is attributable to the negligence of a corporation, the court shall take into account the following matters:
(a)
whether the corporation has established adequate policies and procedures for the purposes of preventing and detecting market misconduct;
(b)
whether the corporation has consistently enforced compliance with its policies and procedures referred to in paragraph (a); and
(c)
such other factors as the court may consider relevant.
236D.
—(1) A defendant corporation which has gained a profit or avoided a loss as a result of the contravention of a provision in this Part by the contravening person referred to in section 236B(1) or 236C(1) shall, whether or not it had been convicted or had a civil penalty imposed on it, be liable to pay compensation to any person (referred to in this section as the claimant) who ––
(a)
contemporaneously with the contravention by the contravening person, had subscribed for, purchased or sold securities, or entered into any futures contract, or contracts or arrangements in connection with leveraged foreign exchange trading, of the same description; and
(b)
had suffered loss by reason of the difference between —
(i)
the price at which the securities, futures contracts, or contracts or arrangements in connection with leveraged foreign exchange trading were dealt in or traded contemporaneously with the contravention by the contravening person; and
(ii)
the price at which the securities, futures contracts or contracts or arrangements in connection with leveraged foreign exchange trading would have been likely to have been so dealt in or traded at the time of the contemporaneous dealing or trading if the contravention by the contravening person had not occurred.
(2) The amount of compensation that the defendant corporation is liable to pay to the claimant under subsection (1) is the amount of the loss suffered by the claimant, after deducting any amount of compensation paid or payable —
(a)
by the contravening person under an order of court or an agreement to pay; or
(b)
under an order for disgorgement under section 236L,
to the same claimant in respect of the same contravention, up to the maximum recoverable amount.
(3) Any defence that would be available to —
(a)
the contravening person if he were prosecuted for his contravention; or
(b)
the defendant corporation if it were prosecuted under section 236B(1) or had an action brought against it under section 236C(2),
shall also be available to the defendant corporation in an action under this section in respect of that contravention.
(4) An action under this section shall not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing or trading in which the loss occurred.
(5) In determining whether the dealing or trading took place contemporaneously with the contravention by the contravening person, the court shall take into account the matters set out in section 234(5).
(6) In this section, “maximum recoverable amount” means —
(a)
the amount of profit that the defendant corporation gained; or
(b)
the amount of the loss that it avoided,
as a result of the contravention by the contravening person, after deducting all amounts of compensation that the defendant corporation had previously been ordered by a court to pay to other claimants under this section in respect of the same contravention.
Subdivision (2) — Partnerships and limited liability partnerships
Liability of partnership and limited liability partnership when partner, etc., commits contravention with consent or connivance
236E.
—(1) Where an offence of contravening any provision of this Part is proved to have been committed by a partner or employee of a partnership or a partner, manager or employee of a limited liability partnership (referred to in this section as the contravening person) —
(a)
with the consent or connivance of the partnership or limited liability partnership; and
(b)
for the benefit of the partnership or limited liability partnership,
the partnership or limited liability partnership shall be guilty of that offence as if it had committed the contravention, and every partner of that partnership, or the limited liability partnership, as the case may be, shall be liable to be proceeded against and punished accordingly.
(2) No proceedings shall be instituted against any partner of the partnership or the limited liability partnership under subsection (1) after —
(a)
a court has made an order against the partner or limited liability partnership for the payment of a civil penalty under subsection (3); or
(b)
the partner or limited liability partnership has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5) (as that provision is applied to an action under subsection (3) by subsection (6)),
in respect of the same contravention.
(3) Where it appears to the Authority that a partnership or a limited liability partnership is liable to be punished under subsection (1) for a contravention committed by a contravening person, the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the partnership or limited liability partnership to seek an order for a civil penalty in respect of that contravention as if the partnership or limited liability partnership had committed the contravention, whether or not such action is brought against the contravening person.
(4) If the court in subsection (3) is satisfied on a balance of probabilities that the partnership or limited liability partnership is liable to be punished under subsection (1) for a contravention of any provision in this Part, which contravention resulted in the partnership or limited liability partnership gaining a profit or avoiding a loss, the court may make an order against the partnership or limited liability partnership for the payment of a civil penalty of a sum —
(a)
not exceeding 3 times —
(i)
the amount of the profit that the partnership or limited liability partnership gained; or
(ii)
the amount of the loss that it avoided,
as a result of the contravention by the contravening person; or
(b)
equal to $100,000,
whichever is the greater.
(5) If the court in subsection (3) is satisfied on a balance of probabilities that the partnership or limited liability partnership is liable to be punished under subsection (1) for a contravention of any provision in this Part, which contravention did not result in the partnership or limited liability partnership gaining a profit or avoiding a loss, the court may make an order against the partnership or limited liability partnership for the payment of a civil penalty of a sum not less than $50,000 and not more than $2 million.
(6) Sections 232(4) to (7) and 233 shall apply in relation to an action brought against a partnership or limited liability partnership under subsection (3) as they apply in relation to an action under section 232.
(7) Any defence that would be available to —
(a)
the contravening person if he were prosecuted for his contravention; or
(b)
the partnership or limited liability partnership if it were prosecuted under subsection (1) in respect of that contravention,
shall also be available to the partnership or limited liability partnership in an action under subsection (3) in respect of that contravention.
(8) The means by which consent or connivance of the partnership or limited liability partnership under subsection (1) or (3) may be established include proving that —
(a)
the executive partners of the partnership or limited liability partnership intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention;
(b)
a high managerial agent of the partnership or limited liability partnership intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention; or
(c)
a corporate culture existed within the partnership or limited liability partnership that directed or encouraged non-compliance with the relevant provision.
(9) In this section —
“corporate culture” means an attitude, policy, rule, course of conduct or practice existing within the partnership or limited liability partnership generally or in the part of the partnership or limited liability partnership in which the relevant activity takes place;
“executive partners” means the partners exercising the executive authority of the partnership or limited liability partnership;
“high managerial agent” means a partner, manager or employee of the partnership or limited liability partnership with duties of such responsibility that his conduct may fairly be assumed to represent the partnership or limited liability partnership’s policy.
Civil penalty when partnership or limited liability partnership fails to prevent or detect contravention by partner, etc.
236F.
—(1) A partnership or limited liability partnership which fails to prevent or detect a contravention of any provision in this Part committed by a partner or employee of the partnership or a partner, manager or employee of the limited liability partnership, as the case may be (referred to in this section as the contravening person), which contravention is —
(a)
committed for the benefit of the partnership or limited liability partnership; and
(b)
attributable to the negligence of the partnership or limited liability partnership,
commits a contravention and shall be liable to an order for a civil penalty under this section.
(2) Where it appears to the Authority that a partnership or limited liability partnership has committed a contravention under subsection (1), the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the partnership or limited liability partnership to seek an order for a civil penalty.
(3) If the court is satisfied on a balance of probabilities that the partnership or limited liability partnership has committed a contravention under subsection (1), which resulted in the partnership or limited liability partnership gaining a profit or avoiding a loss, the court may make an order against the partnership or limited liability partnership for the payment of a civil penalty of a sum —
(a)
not exceeding 3 times —
(i)
the amount of the profit that the partnership or limited liability partnership gained; or
(ii)
the amount of the loss that it avoided,
as a result of the contravention by the contravening person; or
(b)
equal to $100,000,
whichever is the greater.
(4) If the court is satisfied on a balance of probabilities that the partnership or limited liability partnership has committed a contravention under subsection (1), which did not result in the partnership or limited liability partnership gaining a profit or avoiding a loss, the court may make an order against the partnership or limited liability partnership for the payment of a civil penalty of a sum not less than $50,000 and not more than $2 million.
(5) Sections 232(4) to (7) and 233 shall apply in relation to an action brought against a partnership or limited liability partnership under subsection (2) as they apply in relation to an action under section 232.
(6) Any defence that would be available to the contravening person if he were prosecuted for his contravention shall also be available to the partnership or limited liability partnership in an action under subsection (2) in respect of its failure to prevent or detect that contravention.
(7) For the purposes of subsection (1), in determining whether a contravention is attributable to the negligence of a partnership or limited liability partnership, the court shall take into account the following matters:
(a)
whether the partnership or limited liability partnership has established adequate policies and procedures for the purposes of preventing and detecting market misconduct;
(b)
whether the partnership or limited liability partnership has consistently enforced compliance with its policies and procedures referred to in paragraph (a); and
(c)
such other factors as the court may consider relevant.
236G.
—(1) A defendant partnership which has gained a profit or avoided a loss as a result of the contravention of a provision in this Part by the contravening person referred to in section 236E(1) or 236F(1) shall, whether or not the partners of the partnership or the limited liability partnership had been convicted or the partnership or limited liability partnership had a civil penalty imposed on it, be liable to pay compensation to any person (referred to in this section as the claimant) who —
(a)
contemporaneously with the contravention by the contravening person, had subscribed for, purchased or sold securities, or entered into any futures contract, or contracts or arrangements in connection with leveraged foreign exchange trading, of the same description; and
(b)
had suffered loss by reason of the difference between —
(i)
the price at which the securities, futures contracts, or contracts or arrangements in connection with leveraged foreign exchange trading were dealt in or traded contemporaneously with the contravention by the contravening person; and
(ii)
the price at which the securities, futures contracts or contracts or arrangements in connection with leveraged foreign exchange trading would have been likely to have been so dealt in or traded at the time of the contemporaneous dealing or trading if the contravention by the contravening person had not occurred.
(2) The amount of compensation that the defendant partnership is liable to pay to the claimant under subsection (1) is the amount of the loss suffered by the claimant, after deducting any amount of compensation paid or payable —
(a)
by the contravening person under an order of court or an agreement to pay; or
(b)
under an order for disgorgement under section 236L,
to the same claimant in respect of the same contravention, up to the maximum recoverable amount.
(3) Any defence that would be available to —
(a)
the contravening person if he were prosecuted for his contravention; or
(b)
the defendant partnership if it were prosecuted under section 236E(1) or had an action brought against it under section 236F(2),
shall also be available to the defendant partnership in an action under this section in respect of that contravention.
(4) An action under this section shall not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing or trading in which the loss occurred.
(5) In determining whether the dealing or trading took place contemporaneously with the contravention by the contravening person, the court shall take into account the matters set out in section 234(5).
(6) In this section, “maximum recoverable amount” means —
(a)
the amount of profit that the defendant partnership gained; or
(b)
the amount of the loss that it avoided,
as a result of the contravention by the contravening person, after deducting all amounts of compensation that the defendant partnership had previously been ordered by a court to pay to other claimants under this section in respect of the same contravention.
Subdivision (3) — Officers, partners, etc., of entities
236H.
—(1) Where it appears to the Authority that a corporation, partnership, limited liability partnership or unincorporated association (referred to in this section as the contravening person) has contravened any provision in this Part —
(a)
with the consent or connivance of a person (referred to in this section as the defendant) who is an officer or (where its affairs are managed by its members) a member of the corporation, a partner of the partnership, a partner or manager of the limited liability partnership, or an officer of the unincorporated association (other than a partnership) or a member of its governing body, as the case may be; or
(b)
as a result of any neglect on the part of the defendant,
the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the defendant to seek an order for a civil penalty in respect of that contravention as if the defendant had committed the contravention, whether or not such action is brought against the contravening person.
(2) If the court is satisfied on a balance of probabilities that the contravening person has contravened a provision in this Part with the consent or connivance of the defendant, or as a result of any neglect on the part of the defendant, which contravention resulted in the defendant gaining a profit or avoiding a loss, the court may make an order against the defendant for the payment of a civil penalty of a sum —
(a)
not exceeding 3 times —
(i)
the amount of the profit that the defendant gained; or
(ii)
the amount of the loss that he avoided,
as a result of the contravention by the contravening person; or
(b)
equal to $50,000,
whichever is the greater.
(3) If the court is satisfied on a balance of probabilities that the contravening person has contravened a provision in this Part with the consent or connivance of the defendant, or as a result of any neglect on the part of the defendant, which contravention did not result in the defendant gaining a profit or avoiding a loss, the court may make an order against the defendant for the payment of a civil penalty of a sum not less than $50,000 and not more than $2 million.
(4) Sections 232(4) to (7) and 233 shall apply in relation to an action brought against a defendant under subsection (1) as they apply in relation to an action under section 232.
(5) Any defence that would be available to —
(a)
the contravening person if it were prosecuted for its contravention; or
(b)
the defendant if he were prosecuted under section 331 in respect of that contravention,
shall also be available to the defendant in an action under subsection (1) in respect of that contravention.
236I.
—(1) A defendant who has gained a profit or avoided a loss as a result of the contravention of a provision in this Part by a contravening person referred to in section 236H(1) shall, whether or not the defendant had been convicted under section 331 or had a civil penalty imposed on him under section 236H, be liable to pay compensation to any person (referred to in this section as the claimant) who —
(a)
contemporaneously with the contravention by the contravening person, had subscribed for, purchased or sold securities, or entered into futures contract, or contracts or arrangements in connection with leveraged foreign exchange trading, of the same description; and
(b)
had suffered loss by reason of the difference between —
(i)
the price at which the securities, futures contracts, or contracts or arrangements in connection with leveraged foreign exchange trading were dealt in or traded contemporaneously with the contravention by the contravening person; and
(ii)
the price at which the securities, futures contracts or contracts or arrangements in connection with leveraged foreign exchange trading would have been likely to have been so dealt in or traded at the time of the contemporaneous dealing or trading if the contravention by the contravening person had not occurred.
(2) The amount of compensation that the defendant is liable to pay to the claimant is the amount of the loss suffered by the claimant, after deducting any amount of compensation paid or payable ––
(a)
by the contravening person under an order of court or an agreement to pay; or
(b)
under an order for disgorgement under section 236L,
to the same claimant in respect of the same contravention, up to the maximum recoverable amount.
(3) Any defence that would be available to —
(a)
the contravening person if it were prosecuted for its contravention; or
(b)
the defendant if he were prosecuted under section 331 in respect of that contravention,
shall also be available to the defendant in an action under this section in respect of that contravention.
(4) An action under this section shall not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing or trading in which the loss occurred.
(5) In determining whether a dealing in securities, trading in futures contracts, or leveraged foreign exchange trading took place contemporaneously with the contravention by the contravening person, the court shall take into account the matters referred to in section 234(5)(a) to (e).
(6) In this section, “maximum recoverable amount” means —
(a)
the amount of the profit that the defendant gained; or
(b)
the amount of the loss that he avoided,
as a result of the contravention by the contravening person, after deducting all amounts of compensation that the defendant had previously been ordered by a court to pay to other claimants under this section in respect of the same contravention.
Subdivision (4) — General
236J.
—(1) Except with the leave of court, no action may be brought against —
(a)
a defendant corporation under section 236B, 236C or 236D;
(b)
a defendant partnership (including, in the case of a partnership, any of the partners) under section 236E, 236F or 236G; or
(c)
a defendant under section 236H or 236I,
which relates to a contravention of a provision in this Part (referred to in this section as the primary contravention) by a contravening person referred to in section 236B(1) or 236C(1) (in relation to the defendant corporation), 236E(1) or 236F(1) (in relation to the defendant partnership) or 236H(1) (in relation to the defendant), as the case may be, after the commencement of ––
(i)
criminal proceedings in respect of the primary contravention against the contravening person; or
(ii)
an action under section 232 in respect of the primary contravention against the contravening person,
and any such action in paragraph (a), (b) or (c) pending on the date of commencement of the proceedings or action in paragraph (i) or (ii) shall be stayed, and may not thereafter be continued except with the leave of court.
(2) Leave under subsection (1) may not be granted if ––
(a)
in the criminal proceedings referred to in subsection (1)(i), the contravening person has been acquitted of the primary contravention; or
(b)
in the action under section 232 referred to in subsection (1)(ii), the court is not satisfied that the contravening person has committed the primary contravention.
(3) Except with the leave of court, no action under section 236D, 236G or 236I may be brought against the defendant corporation, defendant partnership or defendant in respect of a primary contravention after the commencement of —
(a)
criminal proceedings against the defendant corporation under section 236B(1), the defendant partnership (including, in the case of a partnership, any of the partners) under section 236E(1) or the defendant under section 331 in respect of the same contravention;
(b)
an action against the defendant corporation under section 236B(3), the defendant partnership under section 236E(3) or the defendant under section 236H in respect of the same contravention; or
(c)
an action against the defendant corporation under section 236C(2) or the defendant partnership under section 236F(2) in respect of the failure to prevent or detect that contravention,
and any such action under section 236D, 236G or 236I, as the case may be, pending on the date of commencement of the proceedings or action in paragraph (a), (b) or (c) shall be stayed, and may not thereafter be continued except with the leave of court.
(4) Leave under subsection (3) may not be granted if a date has been fixed by a court under section 236K for the filing of claims, and in that event the claimant to the proposed action or the action that has been stayed, as the case may be, shall comply with such directions relating to the filing and proof of his claim under section 236K as that court may issue in his case.
236K.
—(1) Notwithstanding section 236D, 236G or 236I, where a defendant corporation, defendant partnership (including, in the case of a partnership, any of the partners) or defendant —
(a)
has been convicted of an offence under this Division; or
(b)
has had an order for the payment of civil penalty made against it or him under this Division, other than by way of a default judgment or a consent order made with or without admission of contravention,
and has gained a profit or avoided a loss as a result of the contravention by the contravening person referred to in section 236B(1), 236C(1), 236E(1), 236F(1) or 236H(1), as the case may be, the court which convicted or made the order for a civil penalty against the defendant corporation, defendant partnership (or any of the partners thereof) or defendant may, after the conviction or the order imposing the civil penalty has been made final, fix a date on or before which all claimants have to file and prove their claims against the defendant corporation, defendant partnership or defendant, as the case may be, for compensation in respect of that contravention.
(2) Section 236(2) to (5) shall apply, with the necessary modifications, to an action under subsection (1), and in such application —
(a)
any reference to the contravening person shall be read as the defendant corporation, the defendant partnership or the defendant in subsection (1); and
(b)
the reference to an action under section 234 shall be read as an action under section 236D (in relation to the defendant corporation), 236G (in relation to the defendant partnership) or 236I (in relation to the defendant), as the case may be.
(3) In this section, “claimant” means any person who would qualify as a claimant to bring an action against the defendant corporation, defendant partnership or defendant under section 236D, 236G or 236I, as the case may be.
236L.
—(1) Without prejudice to any action under section 234, 236, 236D, 236G, 236I or 236K, where —
(a)
a person has been convicted by a court of an offence in respect of a contravention of any provision in this Part;
(b)
a person has had an order for the payment of a civil penalty made against him under section 232 or any of the provisions in this Division by a court, other than by way of a default judgment or a consent order made with or without admission of contravention, in respect of a contravention of any provision in this Part; or
(c)
in an action commenced under this section, a court is satisfied on a balance of probabilities that a contravention by a person of any provision in this Part has occurred,
the court may, on the application of the Authority or any claimant, make an order against any other person (referred to in this section as a third party) who has received the whole or any part of the benefit of that contravention for disgorgement of that benefit, being benefit derived from trades carried out for the third party by the person referred to in paragraph (a), (b) or (c).
(2) The court shall issue a notice to a third party against whom an application for an order for disgorgement under subsection (1) is made, giving the third party an opportunity to show cause, within such time as may be specified in the notice, why the order should not be made.
(3) An application for an order for disgorgement under subsection (1) shall not be commenced after the expiration of 6 years from the date on which the contravention referred to in that subsection was committed.
(4) The court shall not make an order for disgorgement against a third party, or shall not order disgorgement of the entire benefit derived by the third party, if the court is satisfied, on a balance of probabilities, that —
(a)
the third party acquired the benefit without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the benefit was derived from the contravention referred to in subsection (1); and
(b)
the third party has so altered his position in reliance on his having an indefeasible interest in the benefit that, in the opinion of the court, it would be inequitable to make the order for disgorgement or to order disgorgement of the entire benefit derived by him, as the case may be.
(5) Notwithstanding subsection (4), the court may make an order for disgorgement against a third party referred to in subsection (4) of a sum that is, in the opinion of the court, equitable.
(6) The court may, after the order for disgorgement has been made final, fix a date, not earlier than 6 months from the date the order for disgorgement has been made final, on or before which all claimants have to file and prove their claims for compensation in respect of the contravention referred to in subsection (1).
(7) The court may, after the expiry of the date fixed under subsection (6), order that each claimant who has filed and proven his claim for compensation be paid out of the sum under the final order for disgorgement, an amount —
(a)
equal to the amount of loss suffered by the claimant, after deducting any other compensation paid or payable to the same claimant under an order of court or an agreement to pay in respect of the same contravention; or
(b)
equal to the pro-rated portion of the sum under the final order for disgorgement, calculated according to the relationship which the amount referred to in paragraph (a) bears to all amounts proved to the court,
whichever is the lesser.
(8) Any sum remaining under the order for disgorgement shall be paid into the Consolidated Fund.
(9) If the third party fails to pay the sums under the order for disgorgement within the time specified in the court order under subsection (7) ––
(a)
each claimant may recover the sum due to him under the order for disgorgement as though it were a judgment debt due to him; and
(b)
the remaining sum under the order for disgorgement may be recovered by the Authority as though it were a judgment debt due to the Authority and paid into the Consolidated Fund.
(10) After the expiry of the date fixed under subsection (6), no person shall make any subsequent application under this section for an order for disgorgement against the third party in respect of the same contravention.
(11) For the purposes of this section, an order for disgorgement is made final if —
(a)
the order is not set aside on appeal or revision or is varied only as to the sum to be disgorged;
(b)
the order is not subject to further appeal;
(c)
no notice of appeal against the order is lodged within the time prescribed by Rules of Court (Cap. 322, R 5); or
(d)
any appeal against the order is withdrawn.
(12) In this section —
“benefit”, in relation to a contravention of any provision in this Part, means a profit gained or loss avoided as a result of that contravention;
“claimant”, in relation to a contravention of any provision in this Part, means any person who would qualify as a claimant under section 234 in respect of that contravention.”.