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Offences By Officers of Certain Companies

Fraud Offences – VIC

Welcome to the VIC Offences by officers of certain companies article page. Everything you need to know about Offences by officers of certain companies according to VIC law.

What the Law States according to VIC Law for Offences by officers of certain companies

According to VIC Law for the charge of Offences by officers of certain companies,

Corporations Act 2001 – SECT 590
Offences by officers of certain companies

(1) A person who, being a past or present officer or employee of a company to which this section applies:

(a) does not disclose to the appropriate officer all the property of the company, and how and to whom and for what consideration and when any part of the property of the company was disposed of within 10 years next before the relevant day, except such part as has been disposed of in the ordinary course of the business of the company; or

(c) has, within 10 years next before the relevant day or at a time on or after that day:

(i) engaged in conduct that resulted in the fraudulent concealment or removal of any part of the property of the company to the value of $100 or more; or

(ii) engaged in conduct that resulted in the concealment of any debt due to or by the company; or

(iii) engaged in conduct that resulted in the fraudulent parting with, alteration or making of any omission in, or being privy to fraudulent parting with, altering or making any omission in, any book affecting or relating to affairs of the company; or

(iv) by any false representation or other fraud, obtained on credit, for or on behalf of the company, any property that the company has not subsequently paid for; or

(v) engaged in conduct that resulted in the fraudulent pawning, pledging or disposal of, otherwise than in the ordinary course of the business of the company, property of the company that has been obtained on credit and has not been paid for;

(d) fraudulently makes any material omission in any statement or report relating to affairs of the company; or

(f) engaged in conduct that prevented the production to the appropriate officer of any book affecting or relating to affairs of the company; or

(g) has, within 10 years next before the relevant day or at a time on or after that day, attempted to account for any part of the property of the company by making entries in the books of the company showing fictitious transactions, losses or expenses; or

(h) has, within 10 years next before the relevant day or at a time on or after that day, been guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to affairs of the company or to the winding up;

contravenes this subsection.

(2) Absolute liability applies to so much of an offence based on paragraph (1)(c), (g) or (h) as requires that an event occur within 10 years next before the relevant day or at a time on or after that day.

Note: For absolute liability , see section 6.2 of the Criminal Code .

(3) Paragraph (1)(a) does not apply to the extent that the person is not capable of disclosing the information referred to in that paragraph.

Note: A defendant bears an evidential burden in relation to the matters in subsection (3), see subsection 13.3(3) of the Criminal Code .

(4) A person who, being a past or present officer or employee of a company to which this section applies, does not deliver up to, or in accordance with the directions of, the appropriate officer:

(a) all the property of the company in the person’s possession; or

(b) all books in the person’s possession belonging to the company (except books of which the person is entitled, as against the company and the appropriate officer, to retain possession);

contravenes this subsection.

(4A) A person who, being a past or present officer or employee of a company and knowing or believing that a false debt has been proved by a person, fails for a period of one month to inform the appropriate officer of his or her knowledge or belief contravenes this subsection.

(4B) A person must not intentionally or recklessly fail to comply with subsection (4) or (4A).

(5) Where a person pawns, pledges or disposes of any property in circumstances that amount to a contravention by virtue of subparagraph (1)(c)(v), a person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances contravenes this subsection.

(6) A person who takes in pawn or pledge or otherwise receives property in circumstances mentioned in subsection (5) and with the knowledge mentioned in that subsection is taken to hold the property as trustee for the company concerned and is liable to account to the company for the property.

(7) Where, in proceedings under subsection (6), it is necessary to establish that a person has taken property in pawn or pledge, or otherwise received property:

(a) in circumstances mentioned in subsection (5); and

(b) with the knowledge mentioned in that subsection;

the matter referred to in paragraph (b) of this subsection may be established on the balance of probabilities.

The Maximum Penalty – Offences by officers of certain companies

According to VIC Law for the charge of Offences by officers of certain companies,

What the Police must prove according to VIC Law for Offences by officers of certain companies

For an offence under s 590(1):

1. The accused is a past or present officer or employee of a company.

2. The company is under external administration or investigation or it is a company which has ceased carrying on business or is unable to pay its debts.

3. The accused engaged in any one of the following types of conduct:

– a failure to disclose to the administrator/receiver/liquidator/ASIC (as the case may be) all the company’s property and, to the extent that they are able, information as to how property has been disposed of in the 10 years preceding the company being under external administration;

– conduct in the 10 years preceding the company being under external administration which resulted in the fraudulent removal or concealment of company property in the previous 10 years;

– conduct in the 10 years preceding the company being under external administration which resulted in the concealment of a company debt;

– conduct in the 10 years preceding the company being under external administration which resulted in the fraudulent alteration or making of any omission in book relating to the affairs of the company, or conduct of being privy to such fraud;

– having fraudulently obtained property for the company on credit, in the 10 years preceding the company being under external administration, and the property was not subsequently paid for;

– conduct in the 10 years preceding the company being under external administration which resulted in the fraudulent disposal of company property obtained on credit which had not been paid for;

– fraudulently making a material omission in any statement or report relating to compan affairs;

– conduct preventing the production to the external administrator of any book relating to company affairs;

– attempting, up to 10 years prior to the company being under external administration, or after the company was placed under external administration, to account for any part of the property of the company by making entries in the books of the company showing fictitious transactions, losses or expenses;

– making, up to 10 years prior to the company being under external administration, or after the company was placed under external administration, any false representation or other fraud for the purpose of obtaining the consent of any company creditors to an agreement in relation to the winding up of the company’s affairs.

For an offence against s 590(4):

1. The accused is a past or present officer or employee of a company .

2. The company is under external administration or investigation or the company has ceased carrying on business or is unable to pay its debts.

3. The accused has been directed to deliver up all the property of the company in the person’s possession and all books in the person’s possession belonging to the company to the external administrator.

4. The books are not books to which the accused is entitled to retain.

5. The accused has intentionally or recklessly failed to deliver up the property or books.

For an offence against s 590(4A):

1. The accused is a past or present officer or employee of a company.

2. The accused knows or believes that a false debt has been proved by a person.

3. The accused has failed for a period of one month to inform an external administrator of his or her knowledge or belief.

Possible Defences under VIC Law – Offences by officers of certain companies

1. Factual dispute
2. Honest and reasonable mistake of fact

In VIC which court will hear the matter – Offences by officers of certain companies

Magistrates’ Court

 

Date: 09/01/2009

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