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Financial Markets Authority Act 2011

General information-gathering and enforcement powers - Other powers - Power to accept undertakings

47: Enforcement of undertakings

You could also call this:

“Keeping promises made to the FMA and what happens if you don't”

If you make a promise to the Financial Markets Authority (FMA), you need to keep it. If the FMA thinks you didn’t keep your promise, they can ask the High Court to help. The High Court can make you do what you promised, make you pay money to the government if you got any benefits from breaking your promise, or make you pay people who were hurt because you didn’t keep your promise.

When the High Court decides what to do, they think about how bad your broken promise was, who got hurt and how badly, whether you meant to break your promise or if it was an accident, and anything else that seems important.

The High Court can also do other things they think are right to fix the situation. They want to make sure that when you make a promise to the FMA, you take it seriously and keep it.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3231730.

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Part 3 General information-gathering and enforcement powers
Other powers: Power to accept undertakings

47Enforcement of undertakings

  1. If the FMA considers that a person who has given an undertaking under section 46 has breached a term of that undertaking, the FMA may apply to the High Court for an order under subsection (2).

  2. The High Court may make any of the following orders if it is satisfied that the person has breached a term of the undertaking:

  3. an order directing the person to comply with that term:
    1. an order directing the person to pay to the Crown 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:
      1. any order that the court thinks appropriate directing the person to compensate any other person who has suffered loss, injury, or damage as a result of the breach:
        1. an order for any consequential relief that the court thinks appropriate.

          1. The High Court must, before making an order under subsection (2), take into account—

          2. the nature and extent of the breach of the term of the undertaking; and
            1. the nature and extent of any loss, injury, or damage suffered by a person as a result of the breach of the term of the undertaking; and
              1. the circumstances in which the breach of the term of the undertaking took place (including whether the breach was intentional, inadvertent, or caused by negligence); and
                1. any other matters that it considers relevant.

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