Document ID: chunk:federal_register_of_legislation:C2005C00498:clause:1_885c
Version: federal_register_of_legislation:C2005C00498
Segment Type: clause
Provision Reference: sch 1 cl 885C
Character Range: 223060–224998

885C  The losses to be covered

 (1) Subject to section 885D, the compensation rules must cover losses (Division 3 losses) of a kind described in the following paragraphs:
 (a) a person (the client) gave money or other property, or authority over property, to a person (the participant):
 (i) who was a participant in the market at that time; or
 (ii) who the client reasonably believed to be a participant in the market at that time and who was a participant in the market at some earlier time; and
 (b) the money or other property, or the authority, was given to the participant in connection with effecting a transaction, or proposed transaction, covered by provisions of the operating rules of the market relating to transactions effected through the market; and
 (c) the effecting of the transaction through the market constitutes or would constitute the provision of a financial service to the client as a retail client; and
 (d) the client suffers a loss because of:
 (i) if the client gave the participant money or other property—the defalcation or fraudulent misuse of the money or other property by the participant; or
 (ii) if the client gave the participant authority over property—the fraudulent misuse of that authority by the participant.

 (2) The compensation rules must provide that a claim relating to an alleged loss caused by defalcation or fraudulent misuse may be allowed even if:
 (a) the person against whom the defalcation or misuse is alleged has not been convicted or prosecuted; and
 (b) the evidence on which the claim is allowed would not be sufficient to establish the guilt of that person on a criminal trial in respect of the defalcation or fraudulent misuse.

 (3) The compensation rules may exclude losses of a kind described above that occur in specified situations. However, the compensation arrangements will not be adequate unless the Minister is satisfied that those exclusions are appropriate.