Incurring of certain debts; fraudulent conduct

Offence title:

Incurring of certain debts; fraudulent conduct

Act:

592 Corporations Act

Offence:

(1)   Where:

(a)   a company has incurred a debt before 23 June 1993; and

(b)   immediately before the time when the debt was incurred:

                                           i.         reasonable grounds exist to believe debts of the company would not be paid when they fell due; or

                                         ii.         reasonable grounds exist if debt were incurred that it would not be able to be paid when its comes due; and

(c)    the company is one to which this section applies;

any person who was a director or was part of management of the company at the time the debt was incurred contravenes this subsection, and the company and those people are jointly and severally liable for the debt.

(3)   Proceedings may be brought to recover the debt under ss. (1).

(4)   If debt recovery is taken per ss. (1), liability may be proved on the balance of probabilities.

(5)   If a person pays the debt under ss. (1), it does not make the company liable to that person.

(6)   Where:

(a)   A company does an act to defraud creditors, or of any person for any fraudulent purpose; and

(b)   The company is one to which this Act applies;

Any person knowingly concerned in the act, with that intent, or for that purposes, contravenes this subsection.

Penalty:

(6)   2 years imprisonment

Summary/Indictable/mixed:

Mixed

Jurisdiction:

Local, District or Supreme Court

How committed:

Where the chief financial officer of a business is aware that a standing order of the company will incur a debt, because that standing order has been cancelled, and the contract benefits the CFO, the CFO commits and offence.

Important note:

Defence:

(2)   If proved:

(a)   The debt was incurred without the person express or implied authority or consent; or

(b)   When it was incurred the person did not have reasonable cause to believe:

                                           i.         The company would not be able to pay debts when they came due; or

                                         ii.         That if the debt were incurred, it would not be able to be paid when it became due.

Procedure:

(6A) For the purposes of an offence based on subsection (6), absolute liability applies to paragraph (6)(b).

(7)   A certificate issued by the proper officer of an Australian court stating that a person specified in the certificate:

(a)   was convicted of an offence under subsection (1) in relation to a debt specified in the certificate incurred by a company so specified; or

(b)   was convicted of an offence under subsection (6) in relation to a company specified in the certificate;

is, in any proceedings, prima facie evidence of the matters stated in the certificate.

(8)   A document purporting to be a certificate issued under subsection (7) is, unless the contrary is established, taken to be such a certificate and to have been duly issued.