Banking Act 1959

Part IX - Miscellaneous  

SECTION 65A   Injunctions  

(1)   Restraining injunctions  

If a person has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:


(a) a contravention of:


(i) a provision of this Act, the regulations, the prudential standards or the non-ADI lender rules; or

(ii) a condition imposed or specified under this Act; or

(iii) a direction by APRA under this Act; or


(b) attempting to contravene the provision, condition or direction; or


(c) aiding, abetting, counselling or procuring a person to contravene the provision, condition or direction; or


(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the provision, condition or direction; or


(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the provision, condition or direction; or


(f) conspiring with others to contravene the provision, condition or direction; the Federal Court of Australia may grant an injunction in accordance with subsection (2).

(2)  
The injunction:


(a) may restrain the person from engaging in the conduct; and


(b) may also require that person to do a particular act or thing, if the Court thinks it desirable to do so.

The Court may grant the injunction on such terms as it thinks appropriate.

(3)  
The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:


(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and


(b) whether or not the person has previously engaged in conduct of that kind; and


(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

(4)   Performance injunctions  

If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required:


(a) by a provision of this Act, the regulations, the prudential standards or the non-ADI lender rules to do; or


(b) by a condition imposed or specified under this Act to do; or


(c) by a direction by APRA under this Act to do;

the Court may grant an injunction requiring the person to do that act or thing. It may grant the injunction on such terms as the Court thinks appropriate.

(5)  
The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:


(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and


(b) whether or not the person has previously refused or failed to do that act or thing; and


(c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.

(6)   Who may apply for an injunction  

The Court may only grant an injunction on the application of:


(a) APRA - in all cases; or


(b) the Treasurer - in the case of a contravention of a condition imposed under section 64 ; or


(c) ASIC or a member of the ADI - in the case of a contravention of a condition imposed under section 64 that has been imposed in relation to a demutualisation of an ADI.

In this subsection, demutualisation has the same meaning as in section 63.

(7)   Consent injunctions  

If an application for an injunction under subsection (1) or (4) has been made, the Court may, if the Court thinks it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that the subsection applies.

(8)   Interim injunctions  

The Court may grant an interim injunction pending determination of an application under subsection (1).

(9)   Variation or discharge of injunctions  

The Court may discharge or vary an injunction granted under this section.

(10)   Damages undertakings  

APRA, ASIC and the Treasurer cannot be required, as a condition of granting an interim injunction, to give an undertaking as to damages.

(11)   Damages orders  

If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

(12)  
The powers conferred on the Court by this section are in addition to any other of its powers, and do not derogate from its other powers.




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