Corporations Regulations 2001

For paragraph 798K(1)(d) of the Act, ASIC may accept a written undertaking, entered into by a person who is alleged to have contravened subsection 798H(1) of the Act, as an alternative to civil proceedings.

Without limiting subregulation (1), ASIC may accept an undertaking that includes any of the following:

an undertaking to take specified action within a specified period;

an undertaking to refrain from taking specified action;

an undertaking to pay a specified amount within a specified period to the Commonwealth or to some other specified person.

An undertaking may relate to an infringement notice given under Division 7.2A.2 in relation to the alleged contravention. For example, an infringement notice may require a person to enter into an undertaking; a person may enter into an undertaking to comply with an infringement notice; a person may enter into an undertaking if the person does not comply with an infringement notice or the infringement notice is withdrawn.

If ASIC agrees, in writing, to the withdrawal or variation of the undertaking, the person who entered into the undertaking may withdraw or vary the undertaking.

If ASIC is satisfied that the person who entered into the undertaking has breached a term of the undertaking, ASIC may apply to a Court for an order under subregulation (5).

If the Court is satisfied that the person has breached a term of the undertaking, the Court may make one or more of the following orders:

an order directing the person to comply with the term of the undertaking;

an order directing the person to pay to the Commonwealth an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

an order directing the person to compensate another person who has suffered loss or damage as a result of the breach;

any other order that the Court considers appropriate.

This regulation does not affect the liability of a person to civil proceedings if ASIC does not accept an undertaking in relation to the alleged contravention of subsection 798H(1) of the Act.