Australian Securities & Investments Commission v R Wynhoven & Associates Pty Ltd [2004] FCA 1418

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v R Wynhoven & Associates Pty Ltd [2004] FCA 1418 Corporations Law Australian Securities and Investments Commission Act, 2001 (Cth) National Australia Bank Ltd v Juric [2001] VSC 375 Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia & Ors [2001] FCA 774

Law Reform Commission Contempt (Report No 35; 1987 at pp 306-307)

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v R WYNHOVEN & ASSOCIATES PTY LTD (ACN 087 373 108) & ORS VID 3290 OF 2003 SELWAY J 4 NOVEMBER 2004 ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 3290 OF 2003

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

PLAINTIFF

AND: R WYNHOVEN & ASSOCIATES PTY LTD

(ACN 087 373 108)

FIRST DEFENDANT

SEED FINANCE AND INVESTMENTS PTY LTD

(ACN 106 259 018)

SECOND DEFENDANT

RON WILLIAM WYNHOVEN

THIRD DEFENDANT

JUDGE: SELWAY J

DATE OF ORDER: 4 NOVEMBER 2004

WHERE MADE: ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. By consent, the third defendant is guilty of contempt of Court on the occasions particularised below, by breaching paragraphs 1(b) and 1(c) respectively of the Orders made by Justice Goldberg on 10 February 2004 and further that such contempts were wilful:

(a) The Third defendant on 9 August 2004 at Geelong, received, solicited or otherwise procured from Gary Raymond Henry ("Henry") funds, namely the sum of $25,000.00, after issuing, selling or offering a financial product (as defined in the Australian Securities and Investments Commission Act 2001 ("the ASIC Act")) namely, a facility through which or through the acquisition of which, Henry made a financial investment, by giving the Third defendant the sum of $25,000.00 in circumstances where Henry intended that the Third defendant would use the said sum to generate a financial return for Henry, in breach of Order l(b) made by Justice Goldberg on 10 February 2004. (b) The Third defendant in or about August 2004, at Geelong, transferred, disposed of or otherwise parted with funds, namely the $25,000.00 received from Henry referred to in par (a) above, being funds that had come into the possession or control of the Third defendant after 10 November 2003 through or by any of the Defendants issuing, selling or offering a financial product (as defined in the ASIC Act), in breach of Order l(c) made by Justice Goldberg on 10 February 2004. (c) The Third defendant, in or about June 2004 at Geelong, received, solicited or otherwise procured from Henry funds, namely $11,000.00, after issuing, selling or offering a financial product (as defined in the ASIC Act) namely, a facility through which or through the acquisition of which, Henry made a financial investment by giving the Third defendant the sum of $11,000.00 in circumstances where Henry intended that the Third defendant would use the said sum to generate a financial return for Henry, in breach of Order l(b) made by Justice Goldberg on 10 February 2004. (d) The Third defendant in or about June 2004at Geelong, transferred, disposed of or otherwise parted with funds, namely the $11,000.00 received from Henry referred to in par (c) above, being funds that had come into the possession or control of the Third defendant after 10 November 2003 through or by any of the Defendants issuing, selling or offering a financial product as defined in the ASIC Act, in breach of Order 1 (c) made by Justice Goldberg on 10 February 2004.