Australian Securities and Investments Commission v Frasers – The Project Managers Pty Ltd [2008] FCA 541

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Frasers – The Project Managers Pty Ltd [2008] FCA 541 CORPORATIONS – unregistered managed investment scheme – ex parte interim injunction sought – alleged breach of undertakings given to Australian Securities and Investments Commission – serious issues to be tried – balance of convenience favours grant if interim relief.

Corporations Act 2001 (Cth), ss 9, 601ED(1)(a), (b), 601ED(5), 601EE(2), 1324(1), (4) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v FRASERS - THE PROJECT MANAGERS PTY LTD, MORAG HEATHER MCLEAN FRASER, KENNETH ANDREW NEWBIGGING FRASER, THE PRJECT AT BALDIVIS PTY LTD, SABRINA DEVELOPMENTS AT BALDIVIS PTY LTD, TAJBOASE HOLDINGS PTY LTD, FRASER PROJECTS PTY LTD and RCF INVESTMENTS PTY LTD

WAD 55 OF 2008

GILMOUR J

10 APRIL 2008

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 55 OF 2008

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

AND: FRASERS - THE PROJECT MANAGERS PTY LTD

(ACN 114 445 500)

First Defendant

MORAG HEATHER MCLEAN FRASER

Second Defendant

KENNETH ANDREW NEWBIGGING FRASER

Third Defendant

THE PRJECT AT BALDIVIS PTY LTD (ACN 124 328 070)

Fourth Defendant

SABRINA DEVELOPMENTS AT BALDIVIS PTY LTD

(ACN 125 564 801)

Fifth Defendant

TAJBOASE HOLDINGS PTY LTD (ACN 126 447 443)

Sixth Defendant

FRASER PROJECTS PTY LTD (ACN 120 787 822)

Seventh Defendant

RCF INVESTMENTS PTY LTD (ACN 126 645 412)

Eighth Defendant

JUDGE: GILMOUR J

DATE OF ORDER: 10 APRIL 2008

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. Until further order the first, second and third defendant each be restrained whether by their servants, agents, officers, employees or otherwise from: 1.1 promoting, offering interests in, or distributing application forms or Expressions of Interest in respect of any the Schemes set out in Annexure A hereto; 1.2 receiving, depositing, paying, transferring or otherwise dealing with, any moneys received from any person as consideration for acquiring an interest or becoming a member or investor in, or a purchaser in connection with any of the Schemes; 1.3 dealing whether directly or indirectly with any of the real property set out in Annexure A hereto; 1.4 entering into any agreement or arrangement concerning, or in respect of any of the Schemes; 1.5 disposing of, destroying, amending, altering, parting with possession of, removing from the present location, directly or indirectly any books, papers, records, books of accounts, ledgers, journals, banking records, computer records or any other documents of any other type whatsoever recording or evidencing any dealings of any of the defendants in relation to any of the Schemes other than for the purpose of complying with an order of this Court; 1.6 from facilitating or holding meetings or investors or distributing information to members or investors of any of the Schemes. 2. Until further order in respect of the scheme described as the Project at Baldivis in Annexure A hereto the fourth and fifth defendants be restrained whether by its servants, agents, officers, employees or otherwise from: 2.1 promoting, offering interests in, or distributing application forms or Expressions of Interest in respect of the Scheme; 2.2 receiving, depositing, paying, transferring or otherwise dealing with, any moneys received from any person as consideration for acquiring an interest or becoming a member or investor in, or a purchaser in connection with the Scheme; 2.3 dealing whether directly or indirectly with any of the real property the subject of the Scheme listed in Annexure A hereto; 2.4 entering into any agreement or arrangement concerning, or in respect of the Scheme; 2.5 disposing of, destroying, amending, altering, parting with possession of, removing from the present location, directly or indirectly any books, papers, records, books of accounts, ledgers, journals, banking records, computer records or any other documents of any other type whatsoever recording or evidencing any dealings of any of the defendants in relation to the Scheme other than for the purpose of complying with an order of this Court; 2.6 from facilitating or holding meetings or investors or distributing information to members or investors of the Scheme. 3. Until further order in respect of the scheme described as the Mundijong Project in Annexure A hereto, the sixth defendant be restrained whether by its servants, agents, officers, employees or otherwise from: 3.1 promoting, offering interests in, or distributing application forms or Expressions of Interest in respect of the Schemes; 3.2 receiving, depositing, paying, transferring or otherwise dealing with, any moneys received from any person as consideration for acquiring an interest or becoming a member or investor in, or a purchaser in connection with any of the Schemes; 3.3 dealing whether directly or indirectly with any of the real property the subject of the Schemes; 3.4 entering into any agreement or arrangement concerning, or in respect of any of the Schemes; 3.5 disposing of, destroying, amending, altering, parting with possession of, removing from the present location, directly or indirectly any books, papers, records, books of accounts, ledgers, journals, banking records, computer records or any other documents of any other type whatsoever recording or evidencing any dealings of any of the defendants in relation to any of the Schemes other than for the purpose of complying with an order of this Court; 3.6 from facilitating or holding meetings or investors or distributing information to members or investors of any of the Schemes. 4. Until further order in respect of the schemes described as the 10 Holmes Forrestfield Development Project and 3 Anderson Forrestfield Development in Annexure A hereto, the seventh defendant be restrained whether by its servants, agents, officers, employees or otherwise from: 4.1 promoting, offering interests in, or distributing application forms or Expressions of Interest in respect of the Schemes; 4.2 receiving, depositing, paying, transferring or otherwise dealing with, any moneys received from any person as consideration for acquiring an interest or becoming a member or investor in, or a purchaser in connection with any of the Schemes; 4.3 dealing whether directly or indirectly with any of the real property the subject of the Schemes; 4.4 entering into any agreement or arrangement concerning, or in respect of any of the Schemes; 4.5 disposing of, destroying, amending, altering, parting with possession of, removing from the present location, directly or indirectly any books, papers, records, books of accounts, ledgers, journals, banking records, computer records or any other documents of any other type whatsoever recording or evidencing any dealings of any of the defendants in relation to any of the Schemes other than for the purpose of complying with an order of this Court; 4.6 from facilitating or holding meetings or investors or distributing information to members or investors of any of the Schemes. 5. Until further order in respect of the scheme described as The Project on Fifty at Baldivis in Annexure A hereto, the eighth defendant be restrained whether by its servants, agents, officers, employees or otherwise from: 5.1 promoting, offering interests in, or distributing application forms or Expressions of Interest in respect of the Schemes; 5.2 receiving, depositing, paying, transferring or otherwise dealing with, any moneys received from any person as consideration for acquiring an interest or becoming a member or investor in, or a purchaser in connection with any of the Schemes; 5.3 dealing whether directly or indirectly with any of the real property the subject of the Schemes; 5.4 entering into any agreement or arrangement concerning, or in respect of any of the Schemes; 5.5 disposing of, destroying, amending, altering, parting with possession of, removing from the present location, directly or indirectly any books, papers, records, books of accounts, ledgers, journals, banking records, computer records or any other documents of any other type whatsoever recording or evidencing any dealings of any of the defendants in relation to any of the Schemes other than for the purpose of complying with an order of this Court; 5.6 from facilitating or holding meetings or investors or distributing information to members or investors of any of the Schemes. 6. There be liberty to apply on 48 hours' notice. 7. Costs be reserved.