Application of security under subsection 786 (9) of the Act
(1)
For subsection 786 (9) of the Act, a security lodged with ASIC in relation
to a licence may be applied by ASIC in accordance with this regulation to
compensate a person who has suffered pecuniary loss due to the failure of the
licensee, or an agent or employee of the licensee, to carry on business under
the licence adequately and properly.
(2)
Subregulation (1) applies whether
or not the licensee, agent or employee has been convicted of an offence in
relation to the failure.
(3)
A security must not be applied to compensate a person unless the claim for
compensation is lodged in writing by, or on behalf of, that person no later
than:
(a)
if ASIC has, by notice published in accordance with subregulation
(4), advertised for claims for compensation to be paid out of the security and
specified a date not less than 3 months after publication of the
notice — that date; or
(b)
if no notice is published and paragraph (c) does not apply — 6
months after the person becomes aware that he or she has suffered the
pecuniary loss; or
(c)
a later date ASIC allows in a particular case.
(4)
A notice mentioned in paragraph (3) (a) must be published:
(a)
in a
daily newspaper of general circulation in a State or Territory; and
(b)
if ASIC so requires — in a newspaper circulating generally in a
State or Territory where the holder of the licence, or the agent or employee,
carries on business under the licence.
(5)
ASIC must give the licensee an opportunity of being heard before deciding
whether a person is to be compensated under subregulation (1).
(6)
For the purposes of this regulation, the amount of pecuniary loss that a
person may claim is the amount worked out using the formula:
where:
"loss" means the pecuniary loss suffered by the person.
"costs" means the total of the amounts that ASIC thinks are:
disbursements of a reasonable amount that are incidental to;
making and proving the claim.
"other entitlements" means the amount or value of all moneys and other
benefits paid or payable to the person by a person other than ASIC in
reduction of the pecuniary loss.
(7)
A security that is applied by ASIC must be applied:
(a)
if the total of
the admitted claims does not exceed the amount of the security — in
the payment in full of those amounts; or
(b)
if that total exceeds the amount of the security — in the
payment of a proportion of the amount at which each of those claims was
admitted.
(8)
The proportion mentioned in paragraph (7) (b) must be the same as the
proportion that the amount of the security bears to the total of the admitted
claims.
Commonwealth Numbered Regulations