Australian Securities and Investments Commission v Empower Invest Pty Ltd [2010] NSWSC 1025

New South Wales Supreme Court

CITATION : Australian Securities and Investments Commission v Empower Invest Pty Ltd [2010] NSWSC 1025

HEARING DATE(S) : 30 August 2010

JUDGMENT DATE : 30 August 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 30 August 2010

1. Make the declaration in paragraph 1 of the originating process. 2. Make order 2 in the originating process. DECISION : 3. Order the first defendant to pay ASIC's costs of the proceedings up to and including 9 August 2010, and order the second defendant to pay ASIC's costs of the proceedings. Note the undertaking of ASIC to the Court not to enforce those costs orders if and to the extent that to do so will adversely affect the ability of investors in schedule C to the originating process to be repaid their investment. 4. The exhibits on this application may be returned after 28 days.

CATCHWORDS : CORPORATIONS – application under Australian Securities and Investments Commission Act 2001 (Cth), s 93AA(4)(a) for declarations that defendants in breach of enforceable undertakings to refund moneys to investors in unregistered managed investment scheme – whether enforceable undertakings varied – no evidence of consent by ASIC to variation – whether undertakings breached – whether appropriate to make orders under s 93AA where breach found – assertions by directors of defendant companies that companies unable to comply with undertakings – no evidence as to financial position of companies – court not satisfied that orders under s 93AA would be futile

LEGISLATION CITED : Australian Securities and Investments Commission Act 2001 (Cth)