Corporations Act 2001
This section applies if ASIC is satisfied that:
(a) information in a disclosure document lodged with ASIC is not worded and presented in a clear, concise and effective manner (see section 715A ); or
(b) an offer of securities under a disclosure document lodged with ASIC would contravene section 728 ; or
(c) an advertisement or publication of a kind referred to in subsection 734(5) or (6) that relates to securities is defective (see subsection (6) of this section); or
(d) an offer of securities under a CSF offer document, or the publication of a CSF offer document on a platform of a CSF intermediary, contravenes subsection 738Y(1) (which relates to defective CSF offer documents); or
(e) a CSF offer document does not comply with section 738K (other requirements for CSF offer documents); or
(f) an advertisement or publication of a kind referred to in subsection 738ZG(6) is defective (see subsection (6) of this section); or
(g) an offer of securities that is expressed to be made under Part 6D.3A is not eligible to be made under that Part.
[ CCH Note: S 739(1) will be amended by No 69 of 2020, s 3, Sch 1, by substituting " the Registrar " for " ASIC " in para (a) and (b) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
ASIC may order that:
(a) if paragraph (1)(a), (b), (d), (e) or (g) applies - no offers, issues, sales or transfers of the securities be made while the order is in force; or
(b) if paragraph (1)(c) or (f) applies - specified conduct in respect of the securities to which the advertisement or publication relates must not be engaged in.
An order under paragraph (1A)(b) may include a statement that specified conduct engaged in contrary to the order will be regarded as not complying with the requirements of a specified provision of this Chapter.
Before making an order under subsection (1A), ASIC must:
(a) hold a hearing; and
(b) give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.
If ASIC considers that any delay in making an order under subsection (1A) pending the holding of a hearing would be prejudicial to the public interest, ASIC may make an interim order that no offers, issues, sales or transfers of the securities be made while the interim order is in force. The interim order may be made without holding a hearing and lasts for 21 days after the day on which it is made unless revoked before then.
At any time during the hearing, ASIC may make an interim order that no offers, issues, sales or transfers of the securities be made while the interim order is in force. The interim order lasts until:
(a) ASIC makes an order under subsection (1A) after the conclusion of the hearing; or
(b) the interim order is revoked;
whichever happens first.
An order under subsection (1A), (3) or (4) must be in writing and must be served on the person who is ordered not to offer, issue, sell or transfer securities under the disclosure document.
For the purposes of this section, an advertisement or publication of a kind referred to in subsection 734(5) or (6) , or 738ZG(6) , is defective if:
(a) there is a misleading or deceptive statement in the advertisement or publication; or
(b) there is an omission from the advertisement or publication of material required by the relevant subsection to be included in the advertisement or publication; or
(c) in the case of an advertisement or publication of a kind referred to in subsection 734(5) that relates to an offer of securities in a class that is not already quoted, and is published before a disclosure document in relation to the offer is lodged - the advertisement or publication includes material that is not referred to in paragraph 734(5)(b) .
For the purposes of the definition of defective in subsection (6), a person is taken to make a misleading statement about a future matter (including the doing of, or refusing to do, an act) if they do not have reasonable grounds for making the statement.
Subsection (7) does not limit the circumstances in which a statement may be misleading.
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