Australian Securities Commission v AS Nominees Ltd & Ors [1995] FCA 811

CATCHWORDS CORPORATIONS - Companies - corporate trustees - receivers and managers - interim motion for the appointment of a receiver and manager - evidence in principal application near completion - appearance of prejudgment - holding orders in lieu. TRUSTS AND TRUSTEES - Trustee Company - interim motion for the appointment of a receiver and manager under the Corporations Law - holding orders - best protection for trust property - interests of investor-beneficiaries. .Corporations Law s1323(1) .Corporations Law s1323(3) .Beach Petroleum N L v Johnson (1992) 9 ACSR 404 applied .Corporate Affairs Commission (South Australia) v Lone Star Exploration N L No2 (1988) 14 ACLR 499 applied .Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884 applied .Corporate Affairs Commission (NSW) v Lombard Nash International Pty Ltd (No 3) 1987 5 ACLC 1020 applied AUSTRALIAN SECURITIES COMMISSION v AS NOMINEES LIMITED and OTHERS No ACT AG 3295 of 1995 No ACT AG 3002 of 1995 FINN J CANBERRA 1 SEPTEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT AG 3295 of 1995 DISTRICT REGISTRY ) No. ACT AG 3002 of 1995 ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant AND: AS NOMINEES LIMITED and OTHERS Respondents COURT: FINN J. PLACE: CANBERRA DATE: 1 SEPTEMBER 1995 MINUTES OF ORDERS Motion dismissed. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT AG 3295 of 1995 DISTRICT REGISTRY ) No. ACT AG 3002 of 1995 ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant AND: AS NOMINEES LIMITED and OTHERS Respondents COURT: FINN J. PLACE: CANBERRA DATE: 1 SEPTEMBER 1995 REASONS FOR JUDGMENT Given the need for a speedy determination of this particular matter, I will deliver oral reasons for judgment and I will limit, as far as possible, reference to the now voluminous evidence relating to this matter. The documentary evidence alone runs into thousands of pages. The primary facts of the particular transactions in question between the parties are, in any event, the subject of almost complete agreement between them. The motion before me is for an interim order for the appointment of a receiver and manager of the property of the first, second and third respondents under the Corporations Law, s1323(3) (the "motion") - an application seeking such an appointment under s1323(1) having been filed on 16 June 1995 -(the "principal application"). The latter provision, insofar as is relevant for present purposes is in the terms that, and I quote: Where: (a) an investigation is being carried out under the ASC Law or this Law in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Law; ... and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (in this section called an "aggrieved person") to whom the person referred to in paragraph (a) ... (in this section called the "relevant person"), is liable, or may be or become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for securities, futures contracts or other property, the Court may, on application by the Commission ... make one or more of the following orders: ... (h) an order appointing: ... (ii)if the relevant person is a body corporate - a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person. Again relevantly for the purposes of the present application, s1323(2A) provides that, and I quote: A reference in paragraph 1(g) or (h) to property of a person includes to property that the person holds otherwise in a sole beneficial owner, for example: (a) as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or