SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

PART 27 - POWERS OF COURT  

SECTION 312   IRREGULARITIES  

312(1)   Definitions.  

In this section:

procedural irregularity
includes:


(a) the absence of a quorum at a meeting of:


(i) trustees of a superannuation entity; or

(ii) directors of a corporate trustee of a superannuation entity; or

(iii) beneficiaries in a superannuation entity; or

(iv) members of a policy committee of an employer-sponsored fund; or


(b) a defect, irregularity or deficiency of notice or time.

proceeding under this Act
means any proceeding, whether a legal proceeding or not, under this Act.

312(2)   Effect of irregularities on proceedings.  

A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court:


(a) is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court; and


(b) by order declares the proceeding to be invalid.

312(3)   Effect of failure to give notice etc. on meetings.  

Subject to subsection (4), none of the following:


(a) a meeting held for the purposes of this Act;


(b) a meeting of which notice is required to be given in accordance with this Act;


(c) any proceeding at such a meeting;

is invalidated only because of the accidental omission to give notice of the meeting or the non-receipt by any person of notice of the meeting.

312(4)   Court may declare proceedings at meeting void.  

In spite of subsection (3), the Court may declare proceedings at the meeting to be void on application of:


(a) the person concerned; or


(b) a person entitled to attend the meeting; or


(c) the Regulator.

312(5)   Court may make certain orders.  

Subject to the remainder of this section, but without limiting any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders (either unconditionally or subject to any conditions imposed by the Court):


(a) an order declaring that:


(i) any act, matter or thing purporting to have been done; or

(ii) any proceeding purporting to have been instituted or taken;
under this Act or in relation to a superannuation entity is not invalid because of any contravention of a provision of:

(iii) this Act; or

(iv) the governing rules of a superannuation entity;


(b) an order relieving a person in whole or in part from any civil liability in respect of a contravention mentioned in paragraph (a);


(c) an order:


(i) extending the period for doing any act, matter or thing or for instituting or taking any proceeding under this Act or in relation to a superannuation entity (including extending a period if it ended before the application for the order was made); or

(ii) shortening the period for doing such an act, matter or thing or for instituting or taking such a proceeding.

312(6)   Consequential and ancillary orders.  

The Court may also make any consequential or ancillary order that it thinks fit.

312(7)   Orders where offence.  

An order may be made under paragraph (5)(a) or (b) even though the contravention referred to in the paragraph concerned resulted in the commission of an offence.

312(8)   Restrictions on making orders.  

The Court must not make an order under this section unless it is satisfied:


(a) in the case of an order referred to in paragraph (5)(a):


(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; or

(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or

(iii) that it is in the public interest that the order be made; and


(b) in the case of an order referred to in paragraph (5)(b) - that the person subject to the civil liability concerned acted honestly; and


(c) in every case - that no substantial injustice has been or is likely to be caused to any person.




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