Australian Securities Commission v Heilbronn, G.R [1995] FCA 27

CATCHWORDS Corporations - Arrest warrant under Corporations Law - existence of books of account and other business and financial records. Corporations Law s.486B, s.486B(1)(b)(ii), s.486B(1)(b)(iii), s.486B(2) Australian Securities Commission v. Greig Ronald Heilbronn No. G3002 of 1995 Cooper J., Brisbane, 1 February, 1995

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. G3002 of 1995 BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant AND: GREIG RONALD HEILBRONN Respondent JUDGE MAKING ORDER: Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 1 February, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. A warrant issue for the arrest of Greig Ronald Heilbronn in the form of the draft initialled by Cooper J. and lodged with the papers. 2. The costs of and incidental to this application for an arrest warrant be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. G3002 of 1995 BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant AND: GREIG RONALD HEILBRONN Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 1 February, 1995 REASONS FOR JUDGMENT This is an application by the Australian Securities Commission pursuant to section 486B of the Corporations Law for the issue of a warrant for the arrest of Greig Ronald Heilbronn. Mr. Heilbronn was a director of a company Vesofe Pty. Ltd., which company was ordered to be wound up by the Supreme Court of Queensland in April 1994. The material satisfies me that at that time there existed books of account and other business and financial records of the company which property came into the possession of Mr. Heilbronn. I am satisfied that since that time the liquidators have sought to obtain possession of the books of the company together with the obtaining of a report as to the financial affairs of the company. The applicant relied upon affidavits of a Mr. Mansfield and a Mr. Raasch, former employees of the company. Those affidavits indicate that the relevant records existed and were delivered into the possession of Mr. Heilbronn in about April, 1994 and that there has been some contact between Mr. Heilbronn and Mr. Raasch, as recently as January of this year, in relation to allegedly preparing the requisite report as to the company's affairs. The affidavit of Mr. Raasch also satisfies me that the company, at the time of liquidation, had property in the nature of computer equipment, which property has not been delivered into the possession of the liquidators. It would appear that it may have been delivered into the possession of other companies with which Mr. Heilbronn is associated without the agreement of the liquidator and certainly without payment of the value of the equipment. I am satisfied that Mr. Heilbronn has concealed or removed property of the company in order to prevent or delay the taking of the property into the liquidator's custody or control within the meaning of section 486B(1)(b)(ii), and has concealed or removed the books of the company from the liquidator within the meaning of section 486B(1)(b)(iii). I am satisfied that Mr. Heilbronn has been seeking to avoid disclosing to the liquidators his whereabouts and seeking to avoid service of any documents upon him in relation to the affairs of the company. The grounds necessary for the issue of a warrant under the section have been made out. I propose to issue a warrant including a power of seizure by the Sheriff of any property or books of account of the company found in the possession of Mr. Heilbronn (section 486B(2)). Any property so seized is to be delivered into the custody of Mr. Grayson, a legal officer with the Australian Securities Commission at Brisbane. Although there was some discussion with counsel as to what ought to occur upon the arrest of Mr. Heilbronn and his delivery before the court, that matter can wait until that occasion arises. When he appears before the court I assume the court will have the benefit of argument from both sides as to what course ought thereafter be taken in relation to Mr. Heilbronn's custody and freedom of movement. There is no prescribed arrest warrant. Accordingly, I propose that the warrant to the Sheriff be in form of a draft initialled by me and lodged with the papers which reads: " WARRANT FOR ARREST CORPORATIONS LAW SECTION 486b IN THE MATTER OF: Vesofe Pty. Ltd. (in liquidation), ACN003998963 AND: Greig Ronald Heilbronn TO: The Sheriff: Arrest GREIG RONALD HEILBRONN and bring him before the Court to submit to the order of the Court and seize any property or books of Vesofe Pty. Ltd. (in liquidation) in the possession of Greig Ronald Heilbronn and deliver the same into the custody of James Grayson, a legal officer of the Australian Securities Commission at Brisbane. DATED 1 February 1995". I reserve the question of costs of today's application. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 6 February, 1995 Associate Counsel for the Applicant: Mr. M. Martin Solicitors for the Applicant: Australian Government Solicitor Respondent: No appearance Date of Hearing: 1 February, 1995 Place of Hearing: Brisbane Date of Judgment: 1 February, 1995