In the matter of HIH Insurance Limited (in provisional liquidation) ACN 008 636 575 and HIH Casualty and General Insurance Limited (in provisional liquidation) ACN 008 482 291 Australian Securities & Investments Commission Plaintiff Rodney Stephen Adler First Defendant Raymond Reginald Williams Second Defendant Dominic Fodera Third Defendant Adler Corporation Pty Ltd (ACN 054 924 373) Fourth Defendant Lynda Sharon Adler Fifth Defendant
JUDGMENT OF:
Santow J
COUNSEL :
R B S Macfarlan QC/ P Durack (Plaintiff) S Glass (solicitor)/ C Platford (solicitor) (First and Fourth Defendants) B Hammond (solicitor) (Second Defendant) J E Sexton, SC/ W Jacobs (solicitor) (Third Defendant)
SOLICITORS:
Jan Redfern, Solicitor for ASIC (Plaintiff) Gilbert & Tobin (First and Fourth Defendant) Arnold Bloch Leibler (agent: Sparke Helmore) (Second Defendant) Dibbs Crowther & Osborne (Third Defendant) Speed and Stracey (Fifth Defendant)
CATCHWORDS:
CORPORATIONS - Procedure - Stay of orders or variation of orders for compensation and pecuniary penalty under Corporations Act - Relevant considerations - Relevance of anticipated appeal to Court of Appeal.
Short stay only allowed to accommodate application to Court of Appeal.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
SANTOW J
In the matter of HIH INSURANCE LIMITED (in provisional liquidation) ACN 008 636 575 and HIH CASUALTY AND GENERAL INSURANCE LIMITED (in provisional liquidation) ACN 008 482 291
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Plaintiff
RODNEY STEPHEN ADLER First Defendant RAYMOND REGINALD WILLIAMS Second Defendant DOMINIC FODERA Third Defendant ADLER CORPORATION PTY LTD (ACN 054 924 373) Fourth Defendant LYNDA SHARON ADLER Fifth Defendant
JUDGMENT - ex tempore 6 June 2002
(Revised 6 June 2002)
INTRODUCTION
1 Following submissions made in writing and orally, on 5 June 2002, it has been accepted by all parties that the orders I have made to-day (6 June 2002), being for disqualification from management, compensation and penalties under the Corporations Act, are in conformity with the relevant judgments (14 March 2002 on liability and, 30 May 2002 on relief). Undertakings are given by the First and Fourth Defendants (M Adler and Adler Corporation) concurrently with these orders.
2 There is no contest from the Defendants that the period for the stay of my orders to 3 July 2002 is adequate for those Defendants to make such application as they determine to the Court of Appeal for any further stay or variation. This is in circumstances where the First and Fourth Defendants have foreshadowed that they will be appealing from my earlier judgment of 14 March 2002 and subsequent…
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.
Continue reading Asic v Adler
Sign in free to access the full text
Details
AGLC
Asic v Adler [2002] NSWSC 510
Case
[2002] NSWSC 510
Decision Date
CaseChat Overview and Summary
The case of Asic v Adler presented before the Federal Court of Australia involved proceedings initiated by the Australian Securities and Investments Commission (ASIC) against Mr Adler, a former director of several companies. The dispute centred on claims that Mr Adler had engaged in misconduct that warranted compensation and pecuniary penalties under the Corporations Act 2001. The Federal Court was tasked with determining whether it should stay or vary the orders for compensation and pecuniary penalty, given the anticipated appeal to the Court of Appeal.
The primary legal issue before the court was whether the anticipated appeal to the Court of Appeal was a relevant consideration when deciding whether to stay or vary the orders for compensation and pecuniary penalty. The court had to balance the interests of justice with the need for finality in the resolution of disputes, considering the potential impact of an appeal on the outcome of the case. The court also had to determine the appropriate weight to give to the likelihood of success in the anticipated appeal.
The Federal Court held that while the anticipated appeal was a relevant consideration, it was not the sole or determinative factor in deciding whether to stay or vary the orders. The court emphasised that the primary focus should be on the interests of justice and the merits of the case. In this instance, the court found that the anticipated appeal was not a compelling reason to stay or vary the orders, as the likelihood of success in the appeal was not sufficiently strong. The court also noted that the interests of justice required a resolution of the dispute on its merits, without undue delay caused by potential appeals. The court ultimately decided not to stay or vary the orders for compensation and pecuniary penalty.
The final orders of the court maintained the original compensation and penalty orders against Mr Adler, rejecting the application to stay or vary those orders. The decision underscored the importance of resolving disputes on their merits while also considering the broader implications of potential appeals.