THE CORPORATIONS LAW

CHAPTER 7 - SECURITIES

PART 7.9 - FIDELITY FUNDS

SECTION 911   POWER OF BOARD TO SETTLE CLAIMS  

911(1)  [Board may settle claim]  

Subject to this Part, a board may allow and settle a proper claim for compensation from a fidelity fund of a securities exchange at any time after the occurrence of the pecuniary loss in respect of which the claim arose.

911(2)  [Proceedings against exchange without board's leave]  

Subject to subsection (3), a person shall not bring proceedings under this Part against a securities exchange without leave of the board unless:

(a)  the board has disallowed the claim; and

(b)  the claimant has exhausted all relevant rights of action and other legal remedies for the recovery of the money, securities, documents of title to securities or other property in respect of which the pecuniary loss occurred, being rights and remedies that are available against:

(i) the member of the securities exchange in relation to whom the claim arose; and

(ii) all other persons who are liable in respect of the loss suffered by the claimant;

other than any right or remedy that the claimant may have under section 908 or a corresponding previous law against another securities exchange.

911(3)  [Application to Court for leave]  

A person who has been refused leave by the board of a securities exchange under subsection (2) may apply to the Court for leave to bring proceedings against the securities exchange and the Court may make such order in the matter as it thinks just.

911(4)  [Board to notify disallowance of claim]  

A board, after disallowing, whether wholly or partly, a claim for compensation from a fidelity fund of a securities exchange, shall serve notice of the disallowance in the prescribed form on the claimant or the claimant's solicitor.

911(5)  [Time for bringing proceedings against exchange]  

Proceedings against a securities exchange in respect of a claim that has been disallowed by a board shall not be brought after 3 months after the service of the notice of disallowance referred to in subsection (4).

911(6)  [Proceedings to establish claim]  

In proceedings brought to establish a claim, evidence of an admission or confession by, or other evidence that would be admissible against, the person against whom a defalcation or fraudulent misuse of property is alleged is admissible to prove the defalcation or fraudulent misuse even if the person is not the defendant in or a party to those proceedings, and all defences that would have been available to that person are available to the securities exchange.

911(7)  [Claim may be allowed despite certain circumstances]  

The board or, where proceedings are brought to establish a claim, the Court, if satisfied that there was a defalcation or fraudulent misuse of property on which to found the claim, may allow the claim and act accordingly, even if:

(a)  the person against whom the defalcation or fraudulent misuse of property is alleged has not been convicted or prosecuted; or

(b)  the evidence on which the board or Court, as the case may be, acts would not be sufficient to establish the guilt of that person on a criminal trial in respect of the defalcation or fraudulent misuse of property.