In the Matter of Tasmanian Spastics Association Australian Securities Commission v Nandan, Satya [1997] FCA 239

CATCHWORDS

Corporations - Officer and employee - Improper use of position to gain an advantage or to cause detriment to the corporation - Executive officer using corporation's funds and facilities for personal or private purposes - Whether Board of Directors authorised the personal or private use of the corporation's funds - Whether the conduct of the officer contravened s.232(6). Corporations - Contravention of a civil penalty provision - Civil penalty orders under s.1317EA - Consideration of principles applicable to a prohibition from managing a corporation under s.1317EA(3)(a) - Consideration of principles applicable to an imposition of a pecuniary penalty under s.1317EA(3)(b) - Whether a prohibition order should be made - Whether a pecuniary penalty should also be imposed. ss.232(6), 1317DA, 1317EA and 1317JA of the Corporations Law Cases R. v. Byrnes (1995) 183 CLR 501 Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Commissioner for Corporate Affairs v. Bracht 1989 VR 821 Friend v. Corporate Affairs Commission (1989) 7 ACLC 106 Nicholas v. Commissioner for Corporate Affairs (1987) 5 ACLC 258 TG 3013\1996 - AUSTRALIAN SECURITIES COMMISSION V. SATYA NANDAN

MERKEL J MELBOURNE (HEARD IN HOBART) 10 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY GENERAL DIVISION TG No. 3013 of 1996 IN THE MATTER OF: TASMANIAN SPASTICS ASSOCIATION AUSTRALIAN COMPANY NUMBER: 009 485 670 AUSTRALIAN SECURITIES COMMISSION Applicant and SATYA NANDAN Respondent COURT: MERKEL J PLACE: MELBOURNE (HEARD IN HOBART) DATE: 10 APRIL 1997 ORDERS 1. The Court declares, pursuant to s.1317EA(2) of the Corporations Law, that the respondent has, by the specified acts set out in the schedule to the Application dated 5 August 1996 as amended, contravened s.232(6) of the Corporations Law in relation to the corporation previously named the Tasmanian Spastics Association and now named the Cerebral Palsy Association of Tasmania. 2. The Court orders, pursuant to s.1317EA(3) of the Corporations Law, that the respondent be prohibited for 3 years from managing a corporation. 3. The Court orders pursuant to s.1317EA(3) of the Corporations Law that the respondent pay to the Commonwealth a pecuniary penalty of $20,000. 4. The respondent is to pay the applicant's taxed costs of and incidental to the Application. 5. Liberty is reserved to the respondent to apply for time for the payment of the penalty. 6. Liberty is reserved to the applicant to apply for reimbursement of any further sums the subject of the said contraventions in the event that the parties are unable to reach agreement on the issue of reimbursement. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.