Contents (2009 - 7)
Associations Incorporation Act 2009 No 7
Division 4 Offences relating to incurring of debts or fraudulent conduct
(1) This Division applies to an association:(a) that is insolvent, or(b) that is being, or has been, wound up, or(c) whose registration has been cancelled under Division 1 or 2 of Part 7.(2) In this Division, appropriate officer means:(a) in relation to an association that has been or is being wound up, the liquidator, or(b) in relation to an association whose registration has been cancelled by the Secretary or that is insolvent, the Secretary.(3) For the purposes of this section, an association is taken to be insolvent if, and only if, execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the association is returned unsatisfied in whole or in part.
68 Incurring of debts in respect of association to which this Division applies
(1) If an association incurs a debt and:(a) immediately before the debt is incurred:(i) there are reasonable grounds for believing that the association is or will become insolvent, or(ii) there are reasonable grounds to expect that, if the association incurs the debt, the association will become insolvent, andany person who was a committee member of the association at the time the debt was incurred is guilty of an offence.(b) the association is or becomes an association to which this Division applies,Maximum penalty: 50 penalty units or imprisonment for 1 year, or both.(2) The association and any person who was a committee member of the association at the time the debt was incurred are jointly and severally liable for the payment of the debt.(3) In any proceedings against a person under subsection (1), it is a defence if the defendant proves:(a) that the debt was incurred without the defendant’s express or implied authority or consent, or(b) that, at the time the debt was incurred, the defendant did not have reasonable grounds:(i) to believe that the association was insolvent, or(ii) to expect that, if the association incurred that debt, it would become insolvent.(4) If subsection (2) renders a person or persons liable to pay a debt incurred by an association, the payment by that person or either or any of those persons of the whole or any part of the debt does not render the association liable to the person or persons concerned in respect of the amount so paid.
69 Fraudulent conduct in respect of association to which this Division applies
If:(a) an association does any act (including the entering into of a contract or transaction) with intent to defraud any person or for any other fraudulent purpose, andany person who was knowingly concerned in the doing of the act with that intent or for that purpose is guilty of an offence.(b) the association is or becomes an association to which this Division applies,Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
70 Powers of Supreme Court
(1) If a person (the offender) is convicted of an offence under section 68 (1) in respect of the incurring of a debt, the Supreme Court, on the application of:(a) the Secretary, ormay declare that the offender is personally responsible, without any limitation of liability, for payment to the creditor of the amount of the debt or such part of it as the Court thinks fit.(b) the person to whom the debt is payable (the creditor),(2) If a person (the offender) is convicted of an offence under section 69, the Supreme Court, on the application of:(a) the Secretary, or(b) the appropriate officer, ormay declare that the offender is personally responsible, without any limitation of liability, for payment to the association of the amount required to satisfy so much of the debts of the association as the Court thinks fit.(c) a member or creditor of the association authorised by the Secretary to make such an application,(3) If the Supreme Court makes a declaration under subsection (1), it may make such further orders as it thinks fit for the purpose of giving effect to that declaration.(4) In particular, the Supreme Court may order that the offender’s liability is a charge on:(a) a debt or obligation due from the association to the creditor, or(b) a right or interest under a charge on any property of the association held by or vested in the offender or a person on behalf of the offender, or a person claiming as assignee from or through the offender or a person acting on behalf of the offender.(5) The Supreme Court may, from time to time, make such further order as it thinks fit for the purpose of enforcing a charge imposed under subsection (4).(6) For the purpose of subsection (4) (b), assignee includes a person to whom or in whose favour, by the direction of the offender:(a) the debt, obligation or charge was created, issued or transferred, orbut does not include an assignee for valuable consideration given in good faith and without actual knowledge of any of the matters on which the conviction or declaration was made.(b) the interest was created,
71 Certain rights not affected
Nothing in this Division affects any rights of a person to indemnity, subrogation or contribution.