Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Without limiting the generality of section 12GD, if:
(a) a person:
(i) engaged in conduct (the contravening conduct ) in contravention of a provision of Subdivision BA, C or D; or
(ii) is a party to a contract who is advantaged by a term (the declared term ) of the contract in relation to which the Court has made a declaration under section 12GND; and
(b) the contravening conduct or declared term caused, or is likely to cause, a class of persons to suffer loss or damage; and
(c) the class includes persons who are non - parties in relation to the contravening conduct or declared term;
the Court may, on the application of ASIC, make such order or orders (other than an award of damages) as the Court thinks appropriate against a person referred to in subsection (2) of this section.
Note: The orders that the Court may make include all or any of the orders set out in section 12GNC.
(2) An order under subsection (1) may be made against:
(a) if subparagraph (1)(a)(i) applies--the person who engaged in the contravening conduct, or a person involved in that conduct; or
(b) if subparagraph (1)(a)(ii) applies--a party to the contract who is advantaged by the declared term.
(3) The Court must not make an order under subsection (1) unless the Court considers that the order will:
(a) redress, in whole or in part, the loss or damage suffered by the non - parties in relation to the contravening conduct or declared term; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non - parties in relation to the contravening conduct or declared term.
Application for orders
(4) An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct or declared term has not been instituted.
(5) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subparagraph (1)(a)(i) applies--the cause of action that relates to the contravening conduct accrues; or
(b) if subparagraph (1)(a)(ii) applies--the declaration is made.
Determining whether to make an order
(6) In determining whether to make an order under subsection (1) against a person referred to in paragraph (2)(a), the Court may have regard to the conduct of the person, and of the non - parties in relation to the contravening conduct, since the contravention occurred.
(7) In determining whether to make an order under subsection (1) against a person referred to in paragraph (2)(b), the Court may have regard to the conduct of the person, and of the non - parties in relation to the declared term, since the declaration was made.
(8) In determining whether to make an order under subsection (1), the Court need not make a finding about either of the following matters:
(a) which persons are non - parties in relation to the contravening conduct or declared term;
(b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.
When a non - party is bound by an order etc.
(9) If:
(a) an order is made under subsection (1) against a person; and
(b) the loss or damage suffered, or likely to be suffered, by a non - party in relation to the contravening conduct, or declared term, to which the order relates has been redressed, prevented or reduced in accordance with the order; and
(c) the non - party has accepted the redress, prevention or reduction;
then:
(d) the non - party is bound by the order; and
(e) any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non - party; and
(f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non - party in relation to that loss or damage.
Other
(10) Subsection (1) has effect subject to section 12GNA.
Note: Section 12GNA may limit the liability, under an order made under subsection (1) of this section, of a person for his or her contravention of section 12DA (which is about misleading or deceptive conduct) or involvement in such a contravention.
(11) This section does not apply in relation to contravening conduct that occurred before the commencement of this section.