South Australian Current Acts South Australian Current Acts103G—Court may order that director of body is appropriate person in
certain circumstances
(a) a
body corporate has been issued with a site contamination assessment order or a
site remediation order in respect of a site, or grounds exist for the issuing
of any such order to a body corporate; and
(b)
there is reason to believe that the body corporate is being or has been wound
up, stripped of assets or subjected to other action as part of a scheme—
(i)
to avoid meeting its obligations under or in connection
with a site contamination assessment order or a site remediation order in
respect of the site; or
(ii)
to avoid its being issued with such an order,
the Environment, Resources and Development Court may, on application by the
Authority, make an order that a person who was, during the period in which it
appears to the Court that the scheme was principally devised, a director or
otherwise concerned in the management of the body corporate, or of a holding
company of the body corporate, is an appropriate person to be issued with a
site contamination assessment order or a site remediation order, or both, in
respect of the site.
(2) Without limiting
the effect of subsection (1), there will be reason for such a
belief—
(a)
if—
(i)
the body corporate is being or has been wound up; and
(ii)
the body corporate has carried out 1 or more
transactions—
(A) such as to give the liquidator of the
body corporate a right to recover cash under section 567 of the
Corporations Act 2001 of the Commonwealth; or
(B) rendered voidable by section 588FE
of the Corporations Act 2001 of the Commonwealth; or
(C) by which the body corporate incurred a
debt in relation to which a person contravened section 588G of the
Corporations Act 2001 of the Commonwealth; and
(iii)
there was, at the time or times when the body corporate
entered those transactions or a substantial portion of them, reason to believe
that site contamination may exist at the site; or
(b)
if—
(i)
a holding company of the body corporate has contravened
section 588V of the Corporations Act 2001 of the Commonwealth in relation
to the body corporate; and
(ii)
there was, at the time of the contravention, reason to
believe that site contamination may exist at the site; or
(c)
if—
(i)
the site has been transferred to a related body corporate
(the
"transferee"); and
(ii)
a reasonable person could have anticipated that the
transferee would be unable to pay its debts if it took steps to remediate the
site (to the extent that a reasonable person would have expected would be
necessary); and
(iii)
there was, at the time of the transfer or when the body
corporate entered the transactions for the transfer, or a substantial portion
of them, reason to believe that site contamination may exist at the site.
(3) The Court must not
make an order under this section if the person against whom the order would be
made satisfies the Court that—
(a) the
person had no knowledge, actual, imputed or constructive, of the scheme or any
element of the scheme; or
(b) the
person was not in a position to influence the conduct of the body corporate in
relation to that scheme; or
(c) the
person, if in such a position, used all due diligence to prevent the pursuit
of the scheme by the body corporate.
(4) The Court may make
an order under this section despite the fact that the body corporate took
steps to remediate the site.