Part 9 Evidence, offences and proceedings
(1) In a proceeding, a document that appears to be a certificate of registration, certificate of incorporation or other certificate, or an authority, issued by the Registrar under this Act, or a copy of any such document appearing to be certified as such by the Registrar, is evidence of the matters stated in the certificate, authority or copy.(2) Judicial notice must be taken of the imprint of the Registrar’s seal appearing on a document and the document must be presumed to have been properly sealed until the contrary is proved.(3) A copy of, or extract from, a document lodged with, created by or otherwise held by the Registrar, and certified to be a true copy or extract under the Registrar’s seal:(a) is as admissible in a proceeding as the original document, and(b) has the same validity in evidence as the original document or the extracted part of the original document.(4) In a proceeding, a certificate of the Registrar stating that a requirement of this Act specified in the certificate:(a) had, or had not, been complied with at a date or within a period specified in the certificate, or(b) had been complied with at a date specified in the certificate but not before that date,is evidence of the matters specified in the certificate.
A printed copy of the rules of a co-operative housing body appearing to be certified by the body’s secretary to be a true copy of its registered rules is evidence of the rules.
(1) The registers kept under this Act are evidence of the particulars directed or authorised by or under this Act to be inserted.(2) A copy of an entry in a register is, if apparently certified by the secretary of the co-operative housing body concerned to be a true copy of the entry in question, evidence of the particulars to which the entry relates.
(1) An entry in the minutes purporting to be:(a) a minute of the business transacted at a meeting of a co-operative housing body or its board, and(b) signed by the chairperson of the meeting at which the business was transacted or a subsequent meeting,is evidence that the business as recorded was transacted at the meeting and that the meeting was duly convened and held.(2) An entry in the minutes of a meeting of a co-operative housing body to the effect that a resolution was carried or was lost is evidence of the fact without proof of the number or proportion of votes recorded for or against the resolution.
A copy of an entry in a book of a co-operative housing body regularly kept in the course of business is, if certified by statutory declaration of the secretary to be a true copy of the entry, admissible in evidence in any case where, and to the same extent as, the original entry itself is admissible.
205 Defaults by co-operative housing bodies
(1) A co-operative housing body must comply with a lawful requirement under this Act to give information to the Registrar or another person.(2) If a co-operative housing body contravenes subsection (1), the co-operative housing body and any officer of the co-operative housing body who is in default each commit an offence.Maximum penalty (subsection (2)): 50 penalty units or imprisonment for 12 months, or both.
(1) A co-operative housing body must not contravene a restriction imposed on its powers, or in relation to its exercise of its powers, under this Act.Maximum penalty: 50 penalty units.
(2) Without limiting subsection (1), a co-operative housing body must not:(a) accept as a member a person who is not eligible for membership under the body’s rules, or(b) raise money on loan except as authorised and within the limits imposed by this Act or, subject to this Act, the body’s rules.(3) If a co-operative housing body contravenes this section, any officer of the body who is in default commits an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(1) In this section and sections 208 (Incurring debts not likely to be paid) and 209 (Powers of Court):appropriate officer means:
(a) in relation to a co-operative housing body that is being wound-up—the liquidator, and(b) in relation to a co-operative housing body that is under the management of an administrator—the administrator, and(c) in relation to a co-operative housing body in relation to which a receiver or manager of all or any of the body’s property has been appointed, whether by the Court or under the powers contained in any instrument—the receiver or manager, and(d) in relation to a co-operative housing body that has ceased to carry on business or is unable to pay its debts—the Registrar.co-operative housing body to which this section applies means a co-operative housing body:
(a) that is being wound-up, or(b) that is under the management of an administrator, or(c) in relation to which a receiver or manager has been appointed, whether by the Court or under the powers contained in any instrument, or(d) that has ceased to carry on business or is unable to pay its debts.the relevant day means:
(a) in relation to a co-operative housing body that is being wound-up—the day on which under this Act the winding-up has started or is taken to have started, and(b) in relation to a co-operative housing body that is under the management of an administrator—the day on which the administrator is appointed, and(c) in relation to a co-operative housing body in relation to which a receiver or manager has been appointed—the day on which the receiver or manager was appointed, and(d) in relation to a co-operative housing body that is unable to pay its debts—the day on which the execution or other process was returned unsatisfied in whole or in part, and(e) in relation to a co-operative housing body that has, within the meaning of subsection (2), ceased to carry on business—the day on which a letter was first sent to the body or a notice was first published in the Gazette in relation to the body.(2) (Repealed)(3) An officer, or former officer, of a co-operative housing body to which this section applies who:(a) does not to the best of the person’s knowledge and belief fully and truly disclose to the appropriate officer:(i) all the property of the co-operative housing body, and(ii) how and to whom and for what consideration and when the body disposed of any part of its property, except such part as has been disposed of in the ordinary course of the body’s business, or(b) does not deliver up to the appropriate officer, or as the appropriate officer directs:(i) all the property of the co-operative housing body in the person’s custody or under the person’s control and that the person is required by law to deliver up, or(ii) all documents in the person’s custody or under the person’s control belonging to the body and that the person is required by law to deliver up, or(c) within 5 years before the relevant day or at any time on or after that day:(i) has concealed any part of the body’s property to the value of $100 or more, or has concealed a debt due to or from the body, or(ii) has fraudulently removed part of the body’s property to the value of $100 or more, or(iii) has concealed, destroyed, mutilated or falsified, or has been privy to the concealment, destruction, mutilation or falsification of a document affecting, or relating to, the body’s property or affairs, or(iv) has made, or has been privy to the making of, a false entry in any document affecting or relating to the body’s property or affairs, or(v) has fraudulently parted with, altered or made any omission in, or has been privy to fraudulently parting with, altering or making an omission in a document affecting or relating to the body’s property or affairs, or(vi) by a false representation or other fraud, has obtained on credit, for or on behalf of the body, property that the body has not subsequently paid for, or(vii) has obtained on credit for or on behalf of the body, under the false pretence that the body is carrying on business, property that the body has not subsequently paid for, or(viii) has pawned, pledged or disposed of any of the body’s property that has been obtained on credit and has not been paid for, unless the pawning, pledging or disposing was in the ordinary course of the body’s business, or(d) knowingly makes any material omission in any statement relating to the body’s affairs, or(e) knowing or believing that a false debt has been proved by any person, fails for a period of 1 month to inform the appropriate officer of the knowledge or belief, or(f) prevents the production of any document affecting or relating to the body’s property or affairs, or(g) within 5 years before the relevant day, or at any time on or after that day, has attempted to account for any part of the body’s property by making entries in the body’s documents showing fictitious transactions, losses or expenses, or(h) within 5 years before the relevant day, or at any time on or after that day, has been guilty of any false representation or other fraud for the purpose of obtaining the consent of the body’s creditors or any of them to an agreement relating to the body’s affairs or to the winding-up,commits an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(4) It is a defence to a charge:(a) under subsection (3) (a), (b) or (d) or subsection (3) (c) (i), (vii) or (viii), if the accused person proves that the person had no intent to defraud, and(b) under subsection (3) (c) (iii) or (iv) or subsection (3) (f), if the accused person proves that the person had no intent to conceal the state of affairs of the co-operative housing body or to defeat the law.(5) If a person pawns, pledges or disposes of property in circumstances that amount to an offence under subsection (3) (c) (viii), a person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances commits an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
208 Incurring debts not likely to be paid
(1) If an officer of a co-operative housing body to which this section applies was knowingly a party to the contracting of a debt by the body and had at the time the debt was contracted, no probable or reasonable grounds of expectation, after taking into consideration the body’s other liabilities (if any) at the time, of the body being able to pay the debt, the officer commits an offence.Maximum penalty: 50 penalty units.
(2) If any business of a co-operative housing body to which this section applies has been carried on with intent to defraud the body’s creditors or creditors of another person or for any fraudulent purpose, a person who was knowingly a party to the carrying on of the business in that way commits an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(1) If a person has been convicted of an offence under section 208 (Incurring debts not likely to be paid), the Court on the application of the Registrar or a prescribed person may declare that the person is personally responsible without any limitation of liability:(a) in the case of a conviction under section 208 (1)—for the payment to the co-operative housing body of an amount equal to the whole of the debt to which the conviction relates or such part of the debt as the Court considers appropriate, and(b) in the case of a conviction under section 208 (2)—for the payment to the co-operative housing body of the amount required to satisfy all or any of the body’s debts as the Court considers appropriate.(2) In relation to a co-operative housing body to which a conviction mentioned in subsection (1) relates:(a) the appropriate officer, and(b) a creditor of the body authorised by the Registrar to make an application under subsection (1),are prescribed persons for the purposes of that subsection.(3) If the Court makes a declaration under subsection (1) in relation to a person it may:(a) give such further directions as it considers proper for the purpose of giving effect to the declaration and, in particular, may order that the liability of the person under the declaration is a charge on:(i) a debt or obligation due from the co-operative housing body to the person, or(ii) any charge or any interest in any charge on any of the body’s assets held by or vested in the person or any body corporate or person on the person’s behalf or any person claiming as assignee from or through the person liable or any body corporate or person acting on the person’s behalf, or(b) from time to time make such further order as is necessary for the purpose of enforcing a charge imposed under this subsection.(4) This section has effect despite the fact that the person concerned is criminally liable in relation to the matters on the ground on which the declaration is made.(5) On the hearing of an application under subsection (1), the appropriate officer or other applicant may give evidence or call witnesses.(6) In subsection (3):assignee includes any person to whom or in whose favour, by the direction of the person liable, the debt, obligation, or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (other than consideration by way of marriage) given in good faith and without notice of any of the matters on which the conviction or declaration was made.
210 Inducement to be appointed as liquidator or official manager
A person must not give, or agree or offer to give, to a member or creditor of a co-operative housing body valuable consideration with a view to securing the person’s appointment or nomination, or to securing or preventing the appointment or nomination of another person, as the liquidator or official manager of the co-operative housing body.Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.
(1) An officer of a co-operative housing body must not destroy, mutilate, alter or falsify a document or security, or make or be privy to the making of any false or fraudulent entry in a document, belonging to the body with intent to defraud or deceive a person.(2) A person who, having a duty to record information in the documents of a co-operative housing body, fails to record the information in the documents:(a) with intent to defraud another person, or(b) knowing that the failure will render other matter contained in the documents false or misleading in a material particular,commits an offence.Maximum penalty: 20 penalty units.
An officer of a co-operative housing body who:(a) by false pretence, or by means of another fraud, induces a person to give credit to the body, or(b) with intent to defraud creditors of the co-operative housing body, makes or causes to be made a gift or transfer of, or charge on, or causes or connives at the levying of any execution against, the body’s property, or(c) with intent to defraud the body’s creditors, conceals or removes part of the body’s property within 2 months before, or after, the date of any unsatisfied judgment or order for payment of money obtained against the body,commits an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
213 False or misleading information
A person must not make available, or give, information in a return, report, certificate, accounts or other document required by or for the purposes of this Act or a standard:(a) that the person knows is false or misleading in a material particular, or(b) that has omitted from it a matter or thing the omission of which makes the information misleading in a material particular.Maximum penalty: 100 penalty units.
214 Power to examine defaulting officers
(1) In this section:co-operative housing body to which this section applies means a co-operative housing body:
(a) that has been, or is being, wound-up, or(b) that is under the management of an administrator, or(c) in relation to which a receiver or manager has been appointed, whether by the Court or under the powers contained in any instrument, or(d) that has ceased to carry on business or is unable to pay its debts, or(e) that has entered into a compromise or scheme of arrangement with its creditors.(2) For the purposes of subsection (1), a co-operative housing body has ceased to carry on business in the circumstances mentioned in section 207 (2) (Offences by officers).(3) This section applies if it appears to the Registrar that an officer or former officer of a co-operative housing body to which this section applies has conducted himself or herself in such a way that the officer or former officer has rendered himself or herself liable to action by the body in relation to the performance of the person’s duties as an officer of the body.(4) The Registrar, or a person who is authorised by the Registrar in that behalf, may apply ex parte to the Court for an order that the officer or former officer must attend before the Court on a day appointed by the Court to be examined as to the person’s conduct and dealings as an officer of the co-operative housing body.(5) An examination under this section:(a) must not be held in open court unless the Court otherwise orders, and(b) may, if the Court so directs and subject to the rules, be held before any District Court Judge named for the purpose by the Court, and the powers of the Court in relation to the conduct of the examination under this section may be exercised by such a Judge.(6) The Court, on making the order under subsection (4) or at any subsequent time, on the application of any person concerned, may give such directions as to the matters to be inquired into and as to the procedure to be followed in relation to the examination as it considers appropriate.(7) The applicant and, with the leave of the Court, a creditor or member of the co-operative housing body, may take part in the examination either personally or by a legal practitioner.(8) The person examined:(a) must be examined on oath, and(b) must answer all questions that the Court or, if the examination is to be held before a District Court Judge, that Judge puts or allows to be put, and(c) is not entitled to refuse to answer a question that is relevant or material to the examination on the ground that the answer might tend to incriminate the person.(9) The answer to a question put to a person under this section is not admissible in evidence against the person in a criminal proceeding (other than a proceeding in relation to the falsity of the answer) if:(a) before answering the question, the person claims that answering the question might tend to incriminate the person, and(b) answering the question might in fact tend to incriminate the person.(10) A person ordered to be examined under this section may be represented by a legal practitioner who is at liberty to put to the person examined any questions for the purpose of enabling the person to explain or qualify any answer given.(11) Notes of the examination:(a) must be reduced to writing, and(b) must be read over to and signed by the person examined, and(c) may, subject to subsection (9), be used in evidence in a legal proceeding against the person examined, and(d) may be inspected and copied by the person examined, the Registrar or the applicant or, with the consent of the Court, by a creditor or member of the co-operative housing body.(12) The Court or, if the examination is held before a District Court Judge, that Judge may adjourn the examination from time to time.(13) If the Court is satisfied that an order for an examination under this section was obtained without reasonable cause, it may order the whole or any part of the costs incurred by the person ordered to be examined to be paid by the applicant or another person who with the consent of the Court takes part in the examination.
215 Power of Court to assess damages against certain persons
(1) In this section:co-operative housing body to which this section applies means a co-operative housing body:
(a) that is being wound-up, or(b) that is under the management of an administrator, or(c) in relation to which a receiver or manager has been appointed, whether by the Court or under the powers contained in any instrument, or(d) that has ceased to carry on business or is unable to pay its debts, or(e) that has entered into a compromise or scheme of arrangement with its creditors.prescribed person means:
(a) a liquidator or provisional liquidator of the co-operative housing body concerned, or(b) if the co-operative housing body concerned is under the management of an administrator—the administrator or a member of the body, or(c) a person authorised by the Registrar to apply under subsection (3).(2) For the purposes of subsection (1), a co-operative housing body has ceased to carry on business in the circumstances mentioned in section 207 (2) (Offences by officers).(3) If, on application by the Registrar or a prescribed person, the Court is satisfied that a person who has taken part in the formation, promotion, administration, management or winding-up of a co-operative housing body to which this section applies:(a) has misapplied or retained or become liable or accountable for property of the co-operative housing body, or(b) has been guilty of negligence, default, breach of trust or breach of duty in relation to the co-operative housing body and that the body has suffered, or is likely to suffer, loss or damage as a result,the Court may make 1 or both of the orders mentioned in subsection (4).(4) The orders that may be made under subsection (3) are:(a) an order directing the person to pay money or transfer property to the co-operative housing body, and(b) an order directing the person to pay to the co-operative housing body the amount of the loss or damage.(5) This section applies to the receipt of any money or property by an officer or former officer of the co-operative housing body, whether by way of salary or otherwise, that appears to the Court to have been unfair or unjust to the body or its members.(6) This section applies despite the fact that the person concerned may be criminally liable in relation to the matters in relation to which the order is sought.(7) If the Court is satisfied that an application was made under this section without reasonable cause, it may order the whole or any part of the costs incurred by the person against whom the order was sought to be paid by the applicant.
A person must not:(a) give to a member of a co-operative housing body or a person intending or applying to become a member, a copy of any rules or any alterations of the rules other than those that have been duly registered, representing that they are binding on the body’s members, or(b) make any alteration in any of the rules of the co-operative housing body after they have been duly registered and circulate them representing that they have been duly registered.Maximum penalty: 10 penalty units.
A person must not:(a) by false representation or imposition obtain possession of property of a co-operative housing body, or(b) having property of a co-operative housing body in the person’s possession, withhold or misapply that property, or wilfully apply part of the property, to purposes other than those specified or authorised in the body’s rules or by or under this Act.Maximum penalty: 20 penalty units.
(1) An officer of a co-operative housing body must not accept a commission, fee or reward, whether pecuniary or otherwise, from a person for or in connection with that person’s transaction with the body.Maximum penalty: 20 penalty units.
(2) An officer of a co-operative housing body who commits an offence against subsection (1) is indebted to the body for double the value or amount of the commission, fee or reward.
219 Co-operative housing bodies to comply with standards
A co-operative housing body must comply with all applicable standards.Maximum penalty: 100 penalty units.
220 Officers and other persons in default
If this Act provides that an officer of a co-operative housing body or other body corporate who is in default commits an offence, the reference to the officer who is in default is, in relation to a contravention of, or an offence against, this Act, a reference to an officer of the co-operative housing body or other body corporate (including a person who subsequently ceased to be such an officer) who is in any way by act or omission, directly or indirectly, knowingly concerned in or party to the contravention or offence.
(1) A proceeding for an offence against this Act may be brought by:(a) the Registrar, or(b) a person authorised in writing by the Registrar.(2) A proceeding may be started within:(a) for an alleged offence not punishable by imprisonment—2 years, and(b) for an alleged offence punishable by imprisonment—5 years,after the alleged offence is committed or, with the consent of the Minister, at any later time.
(1) If:(a) under this Act anything is required or directed to be done within a particular period or before a particular time, and(b) failure to do the thing within the period or before the time constitutes an offence, and(c) the thing is not done within the period or before the time,then:(d) the obligation to do the thing continues, despite the fact that the period has expired or the time has passed, until the thing is done, and(e) if a person is convicted of an offence that is constituted by failure to do the thing within that period or before the time—the person commits a separate and further offence in relation to each day after the day of the conviction during which the failure to do the thing continues, and(f) the penalty applicable to each such separate and further offence is 0.5 penalty units.(2) If:(a) under this Act anything is required or directed to be done but no period within which or time by which the thing is to be done is specified, and(b) failure to do the thing constitutes an offence, and(c) a person is convicted of an offence in relation to a failure to do the thing,the person commits a separate and further offence in relation to each day after the day of the conviction during which the failure to do the thing continues and the penalty applicable to each such separate and further offence is 0.5 penalty units.
(1) If a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:(a) a contravention of this Act, or(b) attempting to contravene this Act, or(c) aiding, abetting, counselling or procuring a person to contravene this Act, or(d) inducing or attempting to induce (whether by threats, promises or otherwise) a person to contravene this Act, or(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act, or(f) conspiring with others to contravene this Act,the Court may, on the application of the Registrar or a person whose interests have been, are or would be affected by the conduct, grant an injunction restraining the person from engaging in the conduct and, if in the Court’s opinion it is desirable to do so, requiring that person to do anything.(2) If a person has failed, is failing, or is proposing to fail, to do anything that the person is required to do under this Act, the Court may, on the application of:(a) the Registrar, or(b) a person whose interests have been, are or would be affected by the failure to do the thing,grant an injunction, requiring the person to do the thing.(3) If an application is made for an injunction under subsection (1) or (2), the Court may grant an injunction by consent of all the parties to the proceeding, whether or not the Court is satisfied that the subsection applies.(4) The Court may grant an interim injunction pending determination of an application under subsection (1).(5) The Court may discharge or vary an injunction granted under this section, and may grant an injunction on conditions.(6) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in the conduct, and(b) whether or not the person has previously engaged in conduct of that kind, and(c) whether or not there is an imminent danger of substantial damage to another person if the person engages, or continues to engage, in the conduct.(7) The power of the Court to grant an injunction requiring a person to do a thing may be exercised:(a) whether or not it appears to the Court that the person intends to fail again, or to continue to fail, to do the thing, and(b) whether or not the person has previously failed to do the thing, and(c) whether or not there is an imminent danger of substantial damage to another person if the person fails, or continues to fail, to do the thing.(8) If the Registrar applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or another person, as a condition of granting an interim injunction, to give an undertaking as to damages.(9) In a proceeding under this section against a person, the Court may make an order under section 107 (Prohibition on transfer of money) in relation to the person.(10) If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct or requiring a person to do a particular thing, the Court may, either in addition to or in substitution for the grant of the injunction, order the person to pay damages to another person.(11) The Court’s powers under this section are in addition to its other powers.
(1) This section applies to a person who is:(a) an officer of a co-operative housing body, or(b) an auditor of a co-operative housing body, whether or not the auditor is an officer of the body, or(c) an expert in relation to a matter in relation to which the civil proceeding has been taken or the claim will or might arise, or(d) a receiver, receiver and manager, liquidator or other person appointed or directed by the Court to carry out any duty in relation to a co-operative housing body.(2) If, in a civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity by virtue of which the person is such a person, it appears to the court before which the proceeding is taken that the person is or may be liable in relation to the negligence, default or breach but has acted honestly and, having regard to all the circumstances of the case, including those connected with the person’s appointment, ought fairly to be excused for the negligence, default or breach, the court may relieve the person either wholly or partly from the liability on such terms as the court considers appropriate.(3) If a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in relation to any negligence, default, breach of trust or breach of duty in a capacity by virtue of which the person is such a person, the person may apply to the Court for relief, and the Court has the same power to grant relief as it would have had under subsection (2) if it had been a court before which a proceeding against the person for negligence, default, breach of trust or breach of duty had been brought.