Failure to comply with member’s election to be sent document in particular form
110F Failure to comply with member’s election to be sent document in particular form
This section applies if:
an election by the recipient to be sent documents by the sender in physical form or electronic form is in force in relation to a document under section 110E; and
the sender sends the document to the recipient in a manner that does not comply with the election (otherwise than by way of giving it to the recipient personally); and
no determination is in force under section 1345 allowing the document to be sent by the sender in that manner (see subsections 1345(2) and (3A)).
The sender contravenes this subsection if the sender does not take reasonable steps to send the document in a manner that complies with the election:
unless paragraph (b) applies—before, or within a reasonable time after, sending the document as mentioned in paragraph (1)(b); or
if the sender is required or permitted under this Act to send the document to the recipient by a particular time—by that time.
A person commits an offence of strict liability if the person contravenes subsection (2).
For the purposes of this section, the following manners of sending the document comply with the election:
for an election to be sent documents in physical form—the manner mentioned in paragraph 110D(1)(a);
for an election to be sent documents in electronic form—a manner mentioned in paragraph 110D(1)(c) or (d).
No current address for sending documents in elected manner
Subsection (2) does not apply if:
the sender reasonably believes that none of the addresses (including any electronic addresses) for the recipient that are:
known to the sender; and
where the recipient is covered by subsection (4B)—so known because the recipient is a member or holder of securities mentioned in whichever of paragraphs (4B)(a) to (f) applies;
are a current address for the recipient to be sent the document in a manner that complies with the election; and
the sender sends the document to the recipient in a manner that does not comply with the election, as mentioned in paragraph (1)(b), other than in the manner mentioned in paragraph 110D(1)(e); and
if the document is a report mentioned in section 314A (annual reporting by notified foreign passport funds)—the requirement (if applicable) in paragraph 314A(4)(b) (about sending report in elected language) is satisfied.
A defendant bears an evidential burden in relation to the matter in subsection (4A), see subsection 13.3(3) of the Criminal Code.
For the purposes of subparagraph (4A)(a)(ii), this subsection covers the recipient if:
the recipient is a member of the sender; or
where the sender is the responsible entity of a registered scheme—the recipient is a member of the scheme; or
where the sender is the corporate director of a CCIV—the recipient is a member of the CCIV; or
where the sender is a disclosing entity mentioned in subsection 111AC(2)—the recipient is a member of the managed investment scheme mentioned in that subsection; or
where the sender is the operator of a notified foreign passport fund—the recipient is an Australian member of the fund; or
where the sender is the bidder under a takeover bid—the recipient is a holder of securities in the target for the bid.
Effect of contravention
A contravention of subsection (2) by the sender does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.
In particular, the validity of the sending of the document as mentioned in paragraph (1)(b) is not affected. Regardless of any contravention of subsection (2), if the sender is required under another provision of this Act to send a document to which this Division applies, that requirement is met if the document is sent in accordance with section 110D and in accordance with any timing requirements under that other provision.
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.