Clause 45

by deleting the words “which resulted in his gaining a profit or avoiding a loss (referred to in this section and sections 235 and 236 as the contravening person) shall,” in subsection (1) and substituting the words “(referred to in this section and sections 235 and 236 as the contravening person) shall, if he had gained a profit or avoided a loss as a result of that contravention,”;

by deleting sub-paragraph (ii) of subsection (1)(b) and substituting the following sub-paragraph:“(ii)the price at which the securities, futures contracts, or contracts or arrangements in connection with leveraged foreign exchange trading would have been likely to have been so dealt in or traded at the time of the contemporaneous dealing or trading if —

in any case where the contravening person had acted in contravention of section 218 or 219, the information referred to in section 218(1) or 219(1), as the case may be, had been generally available; or

in any other case, the contravention had not occurred.”;

by inserting, immediately after subsection (1), the following subsection:“(1A) Without prejudice to subsection (1), the contravening person shall, whether or not he had gained a profit or avoided a loss as a result of that contravention, and whether or not he had been convicted or had a civil penalty imposed on him in respect of that contravention, be liable to pay compensation to the claimant, if —

the contravening person has contravened section 199, 200, 201, 209 or 210, in connection with any subscription, purchase or sale of securities, any trading in futures contracts or any leveraged foreign exchange trading, by —

making, disseminating or publishing any false, misleading or deceptive statement, information, promise or forecast; or

concealing or omitting to state any material fact; and

the claimant —

in reliance on that statement, information, promise or forecast or in ignorance of that concealed or omitted material fact, had (whether contemporaneously with the contravention or otherwise) subscribed for, purchased or sold any securities, or entered into any futures contract, or contracts or arrangements in connection with leveraged foreign exchange trading, of the same description; and

had suffered loss.”;

by deleting subsection (2) and substituting the following subsections:“(2) The amount of compensation that the contravening person is liable to pay to the claimant under subsection (1) is the amount of the loss suffered by the claimant referred to in subsection (1)(b), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L, up to the maximum amount recoverable.(2A) The amount of compensation that the contravening person is liable to pay to the claimant under subsection (1A) is —

in any case where the claimant had contemporaneously with the contravention subscribed for, purchased or sold any securities, or entered into any futures contract, or contracts or arrangements in connection with leveraged foreign exchange trading, of the same description, and had suffered the loss referred to in subsection (1)(b), any one of the following amounts that is elected by the claimant:

the amount of the loss suffered by the claimant referred to in subsection (1)(b), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L, up to the maximum amount recoverable; or

the amount of any loss that reasonably results from the claimant’s reliance on the statement, information, promise or forecast referred to in subsection (1A)(a)(i) or ignorance of the concealed or omitted material fact referred to in subsection (1A)(a)(ii), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L; or

in any other case, the amount of any loss that reasonably results from the claimant’s reliance on the statement, information, promise or forecast referred to in subsection (1A)(a)(i) or ignorance of the concealed or omitted material fact referred to in subsection (1A)(a)(ii), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L.”;

by deleting the word “contemporaneous” in subsection (4);

by deleting the words “In determining whether a dealing in securities, trading in futures contracts, or leveraged foreign exchange trading took place contemporaneously with the contravention under subsection (1),” in subsection (5) and substituting the words “For the purposes of this section, in determining whether any dealing in securities, trading in futures contracts or leveraged foreign exchange trading took place contemporaneously with the contravention,”; and

by deleting the words “to other claimants under this section in respect of the same contravention” in subsection (6) and substituting the words “, in respect of the same contravention, to other claimants (each being a claimant whose claim is one where the amount of compensation that the contravening person is liable to pay is specified under subsection (2) or (2A)(a)(i))”.