Western Australian Current Acts Western Australian Current Acts (1) This section
applies to and in respect of a body corporate which is a person responsible
for remediation of a site under section 25, 26 or 27, or under this section
and —
(a)
which is insolvent; or
(b) in
respect of which the committee has decided that the body corporate would
become insolvent if it took action to remediate the site.
(2) Subject to
subsections (3) and (4) —
(a) each
person who was a director of an insolvent body corporate; and
(b) each
body corporate that was a related body corporate, for the purposes of the
Corporations Act 2001 of the Commonwealth, of an insolvent body corporate,
at the relevant time,
may become a person responsible for the remediation if so decided by the
committee, to the extent as is decided by the committee, after taking into
account the relevant circumstances and any matters prescribed for the purposes
of this section.
(3) The persons
referred to in paragraphs (a) and (b) of subsection (2) may not, as a result
of the operation of this section, be jointly responsible for remediation of
the site to a greater extent than the insolvent body corporate was responsible
for remediation of the site.
(4) Subsection (2)
does not apply in respect of a person referred to in paragraph (a) or (b) of
that subsection unless the committee has decided that —
(a) the
insolvency, or lack of solvency, of the insolvent body corporate is a result
of deliberate conduct engaged in with, the committee has decided, the probable
intent of avoiding responsibility for remediation under this Act; and
(b) the
person —
(i)
engaged in the conduct or knew, or had reasonable grounds
to suspect, that the conduct was being engaged in;
(ii)
intended to avoid responsibility for remediation under
this Act or knew, had reasonable grounds to suspect, or did not inquire as to
whether, the conduct was being engaged in with the intent of avoiding
responsibility for remediation under this Act; and
(iii)
was in a position to influence the conduct.
(5) Where it is
necessary to establish the state of mind of a body corporate in relation to
particular conduct under subsection (4), it is sufficient that —
(a) the
conduct was engaged in by a director, employee or agent of the body corporate
within the scope of his or her actual or apparent authority; and
(b) the
director, employee or agent had the relevant state of mind.
(6) A decision of the
committee under subsection (1), (2) or (4) is a decision as to responsibility
for remediation to which Part 3 Division 3 applies.
(7) In this section
—
director has the same meaning as in the
Corporations Act 2001 of the Commonwealth;
engage in conduct includes failing or refusing to
engage in conduct;
insolvent body corporate means a body corporate
referred to in subsection (1);
relevant time means, in relation to a person who
was responsible for remediation under —
(a)
section 25, when the act that caused, or contributed to, the contamination
occurred;
(b)
section 26, when the change of use occurred;
(c)
section 27(1) or (2), when the person became an owner of the site; and
(d)
section 27(2a), when the person became an owner of the source site of the
relevant affected site;
state of mind of a person includes —
(a) the
knowledge, intention, opinion, belief or purpose of the person; and
(b) the
person’s reasons for the intention, opinion, belief or purpose.
[Section 28 amended: No. 40 of 2005 s. 7.]