Competition and Consumer Act. Australia

Чтение книги онлайн.

СКАЧАТЬ apart from the clearance or authorisation, the acquisition would have contravened section 50; and

      (g) any or all of those shares or assets are vested in the acquirer, the related body corporate or any other body corporate that is related to the acquirer.

      Divestiture by the acquirer and related bodies corporate

      (2) The Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of all or any of those shares or assets by the acquirer, the related body corporate or any other body corporate that is related to the acquirer.

      (3) However, the Court must not make an order under subsection (2) if:

      (a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and

      (b) the matters in subsection (1) are not satisfied in relation to both the clearance and the authorisation.

      Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot make an order under subsection (2) because subsection (1) would not be satisfied in relation to the authorisation.

      Declaration that acquisition void — when vendor involved

      (4) In addition to being satisfied of the matters in subsection (1), if the Court, or another court, has found that the person (the vendor) from whom the acquirer acquired the shares or assets was involved in the contravention referred to in paragraph (1)(d), then the Court may, on the application of the Commission, by order, declare that the acquisition, in so far as it relates to those shares or assets, is void as from the day on which it occurred.

      (5) If the Court makes an order under subsection (4), then:

      (a) the shares or assets to which the declaration relates are taken not to have been disposed of by the vendor; and

      (b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the shares or assets.

      (6) However, the Court must not make an order under subsection (4) if:

      (a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and

      (b) the matters in subsections (1) and (4) are not satisfied in relation to both the clearance and the authorisation.

      Alternative to orders under subsections (2) and (4)

      (7) If an application is made to the Court for an order under subsection (2) or (4) against a person, the Court may, instead of making an order of the kind mentioned in that subsection, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person.

      When application for orders under this section must be made

      (8) An application under subsection (2) or (4) may be made at any time within 3 years after the day on which the acquisition occurred.

      Court may make orders even if not satisfied of all matters

      (9) If an application for an order under subsection (2) or (4) is made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceedings, whether or not the Court is satisfied of:

      (a) for an order under subsection (2) — the matters in subsection (1); and

      (b) for an order under subsection (4) — the matters in subsections (1) and (4).

      82 Actions for damages [see Note 2]

      (1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

      (2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

      83 Finding in proceedings to be evidence [see Note 2]

      In a proceeding against a person under section 82 or in an application under subsection 51ADB(1) or 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C, 86D or 86E, or for an offence against section 44ZZRF or 44ZZRG, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, V or VC is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.

      84 Conduct by directors, employees or agents

      (1) If, in:

      (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a body corporate; or

      (b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 44ZZRJ, 44ZZRK, 46 or 46A or Part IVB applies;

      it is necessary to establish the state of mind of the body corporate, it is sufficient to show that:

      (c) a director, employee or agent of the body corporate engaged in that conduct; and

      (d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

      (e) the director, employee or agent had that state of mind.

      (2) Any conduct engaged in on behalf of a body corporate:

      (a) by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or

      (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

      shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

      (3) If, in:

      (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a person other than a body corporate; or

      (b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK or Part IVB applies;

      it is necessary to establish the state of mind of the person, it is sufficient to show that:

      (c) an employee or agent of the person engaged in that conduct; and

      (d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

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