any person who was a director of the company, or took part in the management
of the company, at the time when the debt was incurred contravenes this
subsection and the company and that person or, if there are 2 or more such
persons, those persons are jointly and severally liable for the payment of the
debt.
(2) In any proceedings against a person under subsection (1), it is a
defence if it is proved:
- (a)
- that the debt was incurred without the person's
express or implied authority or consent; or
- (b)
- that at the time when the debt was incurred, the person did not have
reasonable cause to expect:
- (i)
- that the company would not be able to pay all its debts as and when they
became due; or
- (ii)
- that, if the company incurred that debt, it would not be able to pay all
its debts as and when they became due.
(3) Proceedings may be brought under subsection (1) for the recovery of a
debt whether or not the person against whom the proceedings are brought, or
any other person, has been convicted of an offence under subsection (1)
in respect of the incurring of that debt.
(4) In proceedings brought under subsection (1) for the recovery of a
debt, the liability of a person under that subsection in respect of the debt
may be established on the balance of probabilities.
(5) Where subsection (1) renders a person or persons liable to pay a debt
incurred by a company, the payment by that person or either or any of those
persons of the whole or any part of that debt does not render the company
liable to the person concerned in respect of the amount so paid.
(6) Where:
- (a)
- a company has done an act (including the making of a contract
or the entering into of a transaction) with intent to defraud creditors of the
company or of any other person or for any other fraudulent purpose; and
- (b)
- the company was at the time when it does the act, or becomes at a later
time, a company to which this section applies;
any person who was knowingly concerned in the doing of the act with that
intent or for that purpose contravenes this subsection.
(7) A certificate issued by the proper officer of an Australian court stating
that a person specified in the certificate:
- (a)
- was convicted of an offence
under subsection (1) in relation to a debt specified in the certificate
incurred by a company so specified; or
- (b)
- was convicted of an offence under subsection (6) in relation to a
company specified in the certificate;
is, in any proceedings, prima facie evidence of the matters stated in the
certificate.
(8) A document purporting to be a certificate issued under subsection (7)
is, unless the contrary is established, taken to be such a certificate and to
have been duly issued.