Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.10 - MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT RELATING TO FINANCIAL PRODUCTS AND FINANCIAL SERVICES  

Division 2 - The prohibited conduct (other than insider trading prohibitions)  

SECTION 1041I   CIVIL ACTION FOR LOSS OR DAMAGE FOR CONTRAVENTION OF SECTIONS 1041E TO 1041H  

1041I(1)   [ Recovery for losses]  

A person who suffers loss or damage by conduct of another person that was engaged in in contravention of section 1041E , 1041F , 1041G or 1041H may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention, whether or not that other person or any person involved in the contravention has been convicted of an offence in respect of the contravention.

1041I(1A)   [ Limitation]  

Subsection (1) has effect subject to section 1044B .

Note: Section 1044B may limit the amount that the person may recover for a contravention of section 1041H (Misleading or deceptive conduct) from the other person or from another person involved in the contravention.

1041I(1B)   [ Proportionate liability]  

Despite subsection (1), if:


(a) a person (the claimant ) makes a claim under subsection (1) in relation to:


(i) economic loss; or

(ii) damage to property;
caused by conduct of another person (the defendant ) that was done in contravention of section 1041H; and


(b) the claimant suffered the loss or damage:


(i) as a result partly of the claimant's failure to take reasonable care; and

(ii) as a result partly of the conduct referred to in paragraph (a); and


(c) the defendant:


(i) did not intend to cause the loss or damage; and

(ii) did not fraudulently cause the loss or damage;

the damages that the claimant may recover in relation to the loss or damage are to be reduced to the extent to which the court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage.

Note: Division 2A also applies proportionate liability to a claim for damages under this section for a contravention of section 1041H .

1041I(2)   [ Time limit]  

An action under subsection (1) may be begun at any time within 6 years after the day on which the cause of action arose.

1041I(3)   [ Liability not confined]  

This section does not affect any liability that a person has under any other law.

1041I(4)   [ Relief from liability]  

Section 1317S (which provides for relief from liability) applies in relation to liability under subsection (1) as if:


(a) the sections referred to in subsection (1) were civil penalty provisions; and


(b) proceedings under subsection (1) were eligible proceedings.

Note: Relief from liability under this section may also be available (depending on the circumstances) under Division 4 .


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