1974-HKRS28-16-22_Part02 — Page 17

Council of Federation may require production of securi- Lies, etc.

Court pro- ceedings to establish a claim against the fund.

Supplemen Lary pro- visions relating to proceedings brought under sec- tion 115.

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114. (0) The Council of the Federation may at any time require any person to produce any securities, documents, or statements of evidence necessary—

(a) in order to substantiate any claim made against the

compensation fund; or

(b) for the purpose either of exercising its rights against a stockbroker, or against a member firm or corporate member of a stock exchange, or against any other person concerned; or

(c) for the purpose of enabling criminal proceedings to be brought against any person in respect of a default, being a default which is or involves the commission of a criminal offence.

(2) Where any claimant required to produce any securities, documents, or statements of evidence under subsection (1) fails to produce them the Council of the Federation may, if it is satisfied that securities, documents, or statements are in the possession of. or available to, the claimant, refuse to allow the claimant's claim until such time as he produces them.

115. (1) Subject to subsection (2), a person whose claim has been disallowed, or only partially allowed, under section 113 may, at any time after the service under that section of the notice notifying the disallowance or partial allowance. commence proceedings against the Federation to establish his claim against the compensation fund.

(2) Except with leave of the Court, no proceedings against the Federation in respect of a claim which has been disallowed, or only partially allowed, under section 113 may be commenced after the expiration of 3 months after the service of the notice under subsection (3) of that section.

(3) Any proceedings brought against the Federation to establish a claim against the compensation fund shall be by action as for a debt due from the Federation.

116. In any proceedings brought under section 115,-

(a) all defences that would bave been available to the per- son or persons in relation to whom the claim arose shalt be available to the Federation;

(b) all questions as to costs shall be in the discretion of the

Court; and

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(c) evidence which would be admissible against the stock- broker or any other person by whom it is alleged a default was committed is admissible to prove the com- mission of the default, notwithstanding that the stock- broker or other person is not the defendant in or a party to those proceedings.

117. Where, in any proceedings brought against the Federation Form of to establish a claim against the compensation fund, the Court is court order establishing satisfied that the default on which the claim is founded was claim. actually committed and that the claimant otherwise has a valid claim, the Court shall by order-

(a) allow the amount of the claim or such part of the claim

as it thinks proper;

(b) declare the fact and date of the default and the amount

allowed under paragraph (a); and

(e) direct the Commission to pay to the claimant the amount

declared under paragraph (b).

118. On the Commission making any payment out of the Subroga- compensation fund in respect of any claim under this Part- tion of the

Commis

rights, etc.. of claimant on payment from fund.

(a) the Commission shall be subrogated to the extent of that sign to

payment to all the rights and remedies of the claimant in relation to the loss substained by him by reason of the default on which the claim was based; and

the claimant shall have no right under bankruptcy or legal proceedings or otherwise to receive in respect of the loss any sum out of the assets of the stockbroker, member firm, or corporate member concerned, or where the loss was caused by the defalcation, fraud, or misfeasance of a servant of a stockbroker, member firm, or corporate member, the assets of that servant, until the Commission has been reimbursed the full amount of its payment.

claims only from the

119. No money or other property belonging to the Commission Payment of or to the Federation or to a stock exchange, other than the compensation fund, shall be available for the payment of any fund. claim under this Part, whether the claim is allowed by the Council of the Federation or is made the subject of an order of the Court or otherwise.