Contaminated Land Management Act 1997

The Land and Environment Court may order a person to comply with a management order at the person’s own expense if the person was a director of, or a person concerned in the management of, a body corporate that—

has been wound up within the 2 years before the Court’s order is made, and

has failed to comply with the management order.

Once the Court has made its order under this section, the original management order is taken to have been made against the person under Part 3, subject to any modification by the Court. Part 3, and the other provisions of this Act relating to orders under that Part, then apply to the order and the person accordingly.

The Court may make an order under this section only if it is satisfied, on an application by the EPA, that—

the person was a director of, or a person concerned in the management of, the body corporate at the time when the management order was made, and

there is reason to believe that the body corporate was wound up as part of a scheme to avoid compliance with the management order.

There is reason for such a belief if—

the body corporate carried out one or more transactions—

that were voidable because of section 588FE of the Corporations Act 2001 of the Commonwealth, or

that were such that the liquidator of the body corporate had a right to recovery of cash under section 567 of the Corporations Act 2001 of the Commonwealth, or

by which the body corporate incurred a debt in relation to which a person contravened section 588G of the Corporations Act 2001 of the Commonwealth, and

there was (at the time or times when the body corporate entered those transactions or a substantial portion of them) reason to believe that the land was contaminated, and

in a case to which regulations made for the purposes of this section apply, the conditions prescribed by those regulations are satisfied.

The Court must not make an order under this section if the person against whom the order would be made satisfies the Court that—

the person had no knowledge, actual, imputed or constructive, of the scheme or any element of the scheme, or

the person was not in a position to influence the conduct of the body corporate in relation to that scheme, or

the person, if in such a position, used all due diligence to prevent the pursuit of the scheme by the body corporate.

The mere fact that the relevant management order was partially complied with by the body corporate does not exclude the possibility that there is reason to form the belief referred to in subsection (3).

For the purposes of this section, the fact that steps are taken to wind up a body corporate before the EPA makes a management order in respect of the body corporate does not preclude the Land and Environment Court from finding that there is reason to believe that the body corporate was wound up as part of a scheme to avoid compliance with the management order.