Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p96
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 96/110)
Character Range: 395010–397681

'director') has contravened section 588G in relation to the incurring of a debt by a company; and

     (b)     the person (in this section called the 'creditor') to whom the debt is owed has suffered loss or damage in relation to the debt because of the company's insolvency; and

     (c)     the debt was wholly or partly unsecured when the loss or damage was suffered; and

  (d) the company is being wound up;

whether or not:

     (e) the director has been convicted of an offence in relation to the contravention; or

     (f) a civil penalty order has been made against the director in relation to the contravention.

"(2) The company's liquidator may, by proceedings in a court of competent jurisdiction, recover from the director, as a debt due to the company, an amount equal to the amount of the loss or damage.

"(3) The creditor may, as provided in Subdivision B but not otherwise, by proceedings in a court of competent jurisdiction, recover from the director, as a debt due to the creditor, an amount equal to the amount of the loss or damage.

"(4) Proceedings under this section may only be begun within 6 years after the beginning of the winding up.

Avoiding double recovery

"588N. An amount recovered in proceedings under section 588M in relation to the incurring of a debt by a company is to be taken into account in working out the amount (if any) recoverable in any other proceedings under that section in relation to the incurring of the debt.

Effect of sections 588J, 588K and 588M

  "588P. Sections 588J, 588K and 588M:

    (a)     have effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person's office or employment in relation to a company; and

    (b)     do not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.

Certificates evidencing contravention

  "588Q. For the purposes of this Part, a certificate that:

     (a)     purports to be signed by the Registrar or other proper officer of an Australian court; and

  (b)     states:

         (i) that that court has declared that a specified person has, by failing to prevent a specified company from incurring a specified debt, contravened section 588G in relation to the company; or

         (ii) that a specified person was convicted by that court for an offence constituted by a contravention of section 588G in relation to the incurring of a specified debt by a specified company; or

         (iii) that a specified person charged before that court with such an offence was found in that court to have committed the offence but that the