Kardas, Emmanuel Spiros v Australian Securities Commission [1998] FCA 1381

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – review of decision by ASC prohibiting applicant from managing a corporation – whether reasons for decision confusing and ambiguous – failure to give legally acceptable reasons in relation to finding that an asset valuation was misstated – whether finding of "gross incompetence" or similar conduct a prerequisite to disqualification – whether power to prohibit conditional on exercise within a reasonable time of liquidator's report

CORPORATIONS – review of decision by ASC prohibiting applicant from managing a corporation – Corporations Law s 600 – whether reasons for decision confusing and ambiguous – failure to give legally acceptable reasons in relation to finding that an asset valuation was misstated – whether finding of "gross incompetence" or similar conduct a prerequisite to disqualification – whether power to prohibit conditional on exercise within a reasonable time of liquidator's report

Corporations Law s 600 Cullen v Corporate Affairs Commission (1989) 7 ACLC 121 followed Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 discussed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Re Sheslow and Australian Securities Commission (1994) 20 AAR 161 disapproved Laycock v Forbes (1997) 15 ACLC 1814 at 1821 followed Blunt v Corporate Affairs Commission (No.2) (1988) 6 ACLC 1077 mentioned Re Dawson Print Group Ltd [1987] 3 BCLC 601 mentioned Dwyer v National Companies and Securities Commission (No.2) (1989) 7 ACLC 743 mentioned Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 175 applied Re Delonga and the Australian Securities Commission (1994) 15 ACSR 450 mentioned Halliday v Commissioner of Corporate Affairs (Supreme Court of Victoria, unreported, 14 May 1990) mentioned Koon Wing Lau v Calwell (1949) 80 CLR 533 applied Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 applied Re Federal Commissioner of Taxation: ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 applied Repatriation Commission v Morris (1997) 26 AAR 284 at 289 applied EMMANUEL SPIROS KARDAS v AUSTRALIAN SECURITIES COMMISSION NO. VG 3251 OF 1997 HEEREY J 29 OCTOBER 1998 MELBOURNE