Australian Securities Commission v Smith, Leonard John & Ors [1998] FCA 964

FEDERAL COURT OF AUSTRALIA CORPORATIONS - no power to order distribution, by receiver appointed under s 1323 Corporations Law, of funds gathered by receiver in absence of consents by all persons with possible interests in those funds - Corporations Law, s 1323. Corporations Law, s 1323 Beach Petroleum NL v Johnson (1992) 9 ACSR 404, applied AUSTRALIAN SECURITIES COMMISSION v LEONARD JOHN SMITH & ORS QG 23 OF 1998 DRUMMOND J 5 AUGUST 1998 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 23 of 1998

BETWEEN: AUSTRALIAN SECURITIES COMMISSION

Applicant

AND: LEONARD JOHN SMITH

FIRST Respondent

COASTAL ASSET MANAGEMENT CORPORATION

IBC NO 2499/97

second respondent

National Australia Bank limited

acn 004 044 937

third respondent

len j smith pty ltd

acn 002 730 732

fourth respondent

coastal financial services pty ltd

acn 003 362 141

fifth respondent

JUDGE: DRUMMOND J

DATE OF ORDER: 5 AUGUST 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The receiver transfer all funds held in the "Coastal Financial Group United States Currency Account; Account number COAF1USDO1" with National Australia Bank Limited, to the National Australia Bank Account No 694988243 in the name of "Coastal Financial Group Trust Account". 2. The receiver distribute all funds held in the National Australia Bank Account No 694988243 in the name of "Coastal Financial Group Trust Account" after compliance with Order 1 hereof, in accordance with the interest of each investor in those funds listed in column 3 of exhibit "SJR1" to the affidavit of Sean James Riordan dated 24 July 1998. 3. Upon clearance of all cheques used to make the distribution, the receiver be released from all duties in relation to these proceedings. 4. The Australian Securities Commission pay the receiver's costs and disbursements in relation to this matter. 5. Orders 1 to 4 hereof, inclusive, are conditional upon the Australian Securities Commission first filing an affidavit by Mr NF Coburn confirming that the consents he has obtained to the pro rata distribution of the frozen funds sought are from every one of the lenders, ie, from every person listed in exhibit "SJR1" to Mr Riordan's affidavit, dated 24 July 1998, save only Mr L Spicer. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.