Australian Securities and Investments Commission v Xiao [2012] NSWSC 1210

Supreme Court New South Wales

Medium Neutral Citation: Australian Securities and Investments Commission v Xiao [2012] NSWSC 1210 Hearing dates: 27 August 2012 Decision date: 27 August 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Application dismissed with costs Catchwords: CORPORATIONS - securities - insider trading investigation - travel restrictions submitted to by first defendant - undertaking given to court by fifth defendant to surrender passport in support of application of first defendant to travel to China - first defendant has not returned from China - fifth defendant seeks to be released from undertaking - nature of undertakings to court - whether utility in continuing undertaking Legislation Cited: (Cth) Australian Securities and Investments Commission Act 2001, s 19 Cases Cited: ASIC v Xiao [2011] NSWSC 1067 Category: Interlocutory applications Parties: Australian Securities and Investment Commission (Plaintiff / Respondent) Ms Hu (Fifth Defendant / Applicant) Representation: Counsel: Mr D Stack (Plaintiff / Respondent) Mr RPL Lancaster SC (Fifth Defendant / Applicant) Solicitors: ASIC Legal (Plaintiff/Respondent) Arnold Bloch Liebler (Fifth Defendant) File Number(s): 2011/ 285688

Judgment (ex tempore) 1HIS HONOUR: By interlocutory process filed on 15 June 2012 the fifth defendant Ms Hu applies for an order that she be released from an undertaking given to the court on 17 November 2011, and that her solicitors Arnold Bloch Leibler be released from their related undertaking given on 29 November 2011. 2Ms Hu, along with the first defendant, her husband Mr Steven Xiao, and the other defendants, are the subject of an investigation by the plaintiff Australian Securities and Investments Commission ("ASIC") into insider trading. There have been extensive examinations in this investigation under (Cth) Australian Securities and Investments Commission Act 2001, s 19, over the last six months or so. At one time, Ms Hu was the subject of a travel restriction order prohibiting her leaving Australia; however, ASIC has agreed to the dissolution of that order, and I approach the present application on the basis, which ASIC does not dispute, that it would not succeed on an application at this stage for a travel restriction order in respect of Ms Hu.