Allan Paul Endresz v ASIC - [2013] FCCA 1167

FEDERAL CIRCUIT COURT OF AUSTRALIA

A. ENDRESZ v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

[2013] FCCA 1167

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice pursuant to s.41(7) – counter-claim relied on to enliven the subsection that relates to another party – judgment creditor that issued notice (ASIC) an instrumentality of the Commonwealth of Australia – counter-claim against the Commonwealth – applicant claimed mutuality that entitled the counter-claim against the Commonwealth to enliven the provisions of s.40(1)(g) and s.41(7) and empowered the Court to set aside the notice – long outstanding reserved judgment in ACT Supreme Court where merit of counter-claim was tested – judgment delivered, with counter-claim being dismissed – no basis, therefore, under s.41(7) to set aside the notice – application dismissed with costs.

Legislation:
Bankruptcy Act 1966, ss.40(1)(g), 41(7)

Corporations Act 2001
Trade Practices Act 1974

Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No.7) [2013] ACTSC 146

Dawn Endresz v ASIC [2013] FCCA 1169

Jozsef Endresz v ASIC [2013] FCCA 1168

Forge & Ors v ASIC [2003] FMCA 58

Forge v ASIC [2013] FCCA 1170

Applicant:

ALLAN PAUL ENDRESZ

Respondent:

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

File Number:

MLG 135 of 2012

Judgment of:

Judge O'Dwyer

Hearing date:

24 August 2012

Date of Last Submission:

24 August 2012

Delivered at:

Melbourne

Delivered on:

23 August 2013

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Fary

Solicitors for the Respondent:

Mr Andrew Tregear, Australian Securities & Investments Commission

ORDERS THAT:

The application filed on 10 February 2012, as amended, to set aside Bankruptcy Notice BN 9545 (issued on 23 November 2011) is dismissed.
The Applicant pay the Respondent’s costs of, and incidental to, this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 135 of 2012

ALLAN PAUL ENDRESZ

Applicant

And

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application, the applicant seeks to set aside a bankruptcy notice (BN 9545 issued on 23 November 2011) pursuant to s.41(7) of the Bankruptcy Act 1966 (“the Act”).
This application was heard in conjunction with three other applications seeking the same order in respect of bankruptcy notices served on the parents of the applicant, and a friend and former business partner of the applicant.[1]
[1] See Forge v ASIC [2013] FCCA 1170; Jozsef Endresz v ASIC [2013] FCCA 1168; and Dawn Endresz v ASIC [2013] FCCA 1169.

Background

The factual matrix giving rise to this application is exceptional, both in respect of the length of the history surrounding various proceedings and the variety of associated litigation that the applicant (and others) have been involved in.
A brief history of related proceedings gives insight as to the nature, force and effect of the applicant’s contentions in this matter.
The applicant is an accountant by profession. In 1989 he was a majority shareholder in CTC Resources NL, previously known as EMU Hill Goldmines NL. During the early 1990’s CTC Resources retained Davis Samuel Pty Ltd (“Davis Samuel”) as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Allan Paul Endresz v ASIC and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FCCA 1167
Decision Date: 23 August 2013

CaseChat Overview and Summary

Allan Paul Endresz (the applicant) sought judicial review of a decision by the Australian Securities and Investments Commission (ASIC) to refuse his application for a licence to provide financial services. The Administrative Appeals Tribunal (AAT) had affirmed ASIC's decision. The applicant then appealed to the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its determination that the applicant was not a fit and proper person to hold a financial services licence, as required by section 913B of the Corporations Act 2001 (Cth). This involved considering whether the AAT had properly applied the relevant legal principles in assessing the applicant's character, honesty, and diligence, particularly in light of past conduct.

O'Dwyer J found that the AAT had not erred in law. Her Honour reasoned that the AAT was entitled to consider the applicant's past conduct, including findings of contraventions of financial services legislation and a history of non-compliance with regulatory requirements, when assessing his fitness and propriety. The AAT had correctly applied the legal test by weighing the relevant factors and reaching a conclusion that the applicant lacked the necessary integrity and diligence to be entrusted with a financial services licence. The Court affirmed that the AAT's findings of fact were supported by the evidence before it and that its application of the law to those facts was sound.

The appeal was dismissed.

Orders