AWRS120800 - Raising a penalty assessment: company and company officer penalties: personal gain

Once you have attributed the deliberate trading without approval to one or more of the company officers, you should consider whether any of these company officers, by fact or implication, have gained or attempted to gain personally from the contravention. It is sufficient to show that each company officer has gained or attempted to gain. It will not however always be possible to establish the full extent to which each company officer has gained or attempted to gain.

For example:

• the company officer may accept that there was an actual or attempted personal gain from a failure to apply that can be attributed to them, or
• it may be clear from business records or the officer’s lifestyle that they gained or attempted to gain personally from the results of deliberately trading without approval.

The recorded payment of normal salary, wages or dividends should not normally be regarded as the company officer gaining personally from the deliberate contravention.

If at the time you are issuing the penalty assessment to the company you decide that there is no personal gain and that therefore the penalty is not to be apportioned to any of the company officers, you cannot later pursue any of the company officers for payment of the penalty even if the circumstances subsequently change. For example, if there is no personal gain and you do not issue a notice of liability to the company officers, you cannot later apportion liability to the company officers if the company goes into liquidation.

This also means that you cannot change the proportion of the company’s penalty notified to any of the company officers, if the circumstances subsequently change.