Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p94
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 94/110)
Character Range: 390161–392814

section 588M in relation to the incurring of the debt).

"(2) It is a defence if it is proved that, at the time when the debt was incurred, the person had reasonable grounds to expect, and did expect, that the company was solvent at that time and would remain solvent even if it incurred that debt and any other debts that it incurred at that time.

"(3) Without limiting the generality of subsection (2), it is a defence if it is proved that, at the time when the debt was incurred, the person:

  (a) had reasonable grounds to believe, and did believe:

         (i) that a competent and reliable person ('the other person') was responsible for providing to the first-mentioned person adequate information about whether the company was solvent; and

         (ii) that the other person was fulfilling that responsibility; and

    (b) expected, on the basis of information provided to the first-mentioned person by the other person, that the company was solvent at that time and would remain solvent even if it incurred that debt and any other debts that it incurred at that time.

"(4) If the person was a director of the company at the time when the debt was incurred, it is a defence if it is proved that, because of illness or for some other good reason, he or she did not take part at that time in the management of the company.

"(5) It is a defence if it is proved that the person took all reasonable steps to prevent the company from incurring the debt.

"(6) In determining whether a defence under subsection (5) has been proved, the matters to which regard is to be had include, but are not limited to:

    (a)     any action the person took with a view to appointing an administrator of the company; and

  (b)     when that action was taken; and

  (c)     the results of that action.

"Division 4—Director liable to compensate company

"Subdivision A—Proceedings against director

On application for civil penalty order, Court may order compensation

"588J.(1) Where, on an application for a civil penalty order against a person in relation to a contravention of section 588G, the Court is satisfied that:

    (a)     the person committed the contravention in relation to the incurring of a debt by a company; and

  (b)     the debt is wholly or partly unsecured; and

  (c)     the person to whom the debt is owed has suffered loss or

     damage in relation to the debt because of the company's insolvency;

the Court may (whether or not it makes an order under subsection 1317EA(3)) order the first-mentioned person to pay to the company compensation equal to the amount of that loss or damage.

"(2) A company's liquidator may