ASIC v Atlantic 3 Financial (Aust) Pty Ltd - [2003] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2003] QSC 265

PARTIES:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(applicant)
v
ATLANTIC 3 FINANCIAL (AUST) PTY LTD
ACN 056 262 723
(first respondent)
FREDRIC ACKER
(second respondent)
GERILYN MARIE POLANSKI
(third respondent)

FILE NO:

S4426 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

19 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2003

JUDGE:

Mullins J

ORDER:

1. Leave be given to each of CB Darvall & Darvall, the intervening investors, DF Kerrigan and ND Barton to appear, subject to each of them bearing its, their or his own costs of the application.

2. That Gregory Michael Moloney and Peter Ivan Felix Geroff be appointed to wind up the schemes involving:

a) Mackay Leagues Club Ltd;
b) Numinko Pty Ltd;
c) Sentry Alliance Pty Ltd;
d) Plymouth Greens Pty Ltd, Atlantic 3 Maryborough Mortgage Pty Ltd Advance; and
e) Clearview Properties Pty Ltd.

CATCHWORDS:

CORPORATIONS LAW – MANAGED INVESTMENT SCHEME – WINDING UP BY COURT – where court ordered that 15 unregistered managed investment schemes operated by the respondent company be wound up pursuant to s 601EE Corporations Act 2001 (Cth) – where the issue of the identity of the person to carry out the winding up was to be determined – where ASIC sought an order that registered liquidators be appointed to wind up the schemes – where respondent proposed to wind up the schemes subject to external control and/or supervision ordered by the court – all factors relevant to the winding up of an unregistered scheme must be balanced in determining who should be the party given the responsibility for winding up the scheme and on what terms

CORPORATIONS LAW – MANAGED INVESTMENT SCHEME– WINDING UP BY COURT- where proposal to wind up unregistered managed investment schemes by transferring them to a registered scheme – whether transfer of unregistered scheme to registered scheme amounts to winding up

Corporations Act 2001 (Cth)
Property Law Act 1974

Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561
Australian Securities and Investments Commission v TakaranPty Ltd (2002) 43 ACSR 46
Australian Securities and Investments Commission v Takaran Pty Ltd (No 2) (2002) 43 ACSR 334
Australian Securities Investments Commission v Young (2003) QSC 29
Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156
Re Crust `N’ Crumb Bakers (Wholesale) Pty Ltd [1992] 2QdR 76
Lawloan Mortgages Pty Ltd v Lawloan Mortgages Pty Ltd [2003] 21 ACLC 289

COUNSEL:

RM Derrington for the applicant
PE Hack SC for the respondents
PJ Dunning with leave for CB Darvall & Darvall
DG Clothier with leave for intervening investors
L Alford with leave for Mr DF Kerrigan
RP Hawkins (art. clerk) with leave for Mr ND Barton

SOLICITORS:

Australian Securities and Investments Commission for the applicant
Corrs Chambers Westgarth for the respondents
Marler & Darvall with leave for CB Darvall & Darvall
Brian Bartley & Associates with leave for intervening…

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.

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Details

Case: [2003] QSC 265
Decision Date: 19 August 2003

CaseChat Overview and Summary

The Australian Securities and Investments Commission (ASIC) initiated proceedings against Atlantic 3 Financial (Aust) Pty Ltd, seeking an order for the winding up of 15 unregistered managed investment schemes operated by the respondent company. The matter was heard in the Federal Court, which was required to determine the identity of the person to carry out the winding up of these schemes. ASIC argued for the appointment of registered liquidators to wind up the schemes, while the respondent proposed to wind up the schemes subject to external control and/or supervision ordered by the court.

The court had to consider various factors relevant to the winding up of an unregistered managed investment scheme, including the appropriateness of transferring the unregistered scheme to a registered scheme and whether such a transfer constituted a winding up. In this context, the court balanced all factors relevant to the winding up of the unregistered scheme in determining who should be given the responsibility for winding up the scheme and on what terms. The court concluded that the appointment of Gregory Michael Moloney and Peter Ivan Felix Geroff as liquidators was the most appropriate course of action.

The court granted leave for CB Darvall & Darvall, the intervening investors, DF Kerrigan and ND Barton to appear in the proceedings, subject to each party bearing its, their or his own costs of the application. The court also appointed Gregory Michael Moloney and Peter Ivan Felix Geroff to wind up the schemes involving Mackay Leagues Club Ltd, Numinko Pty Ltd, Sentry Alliance Pty Ltd, Plymouth Greens Pty Ltd, Atlantic 3 Maryborough Mortgage Pty Ltd Advance and Clearview Properties Pty Ltd.

Orders

Orders of the court

1. Leave be given to each of CB Darvall & Darvall, the intervening investors, DF Kerrigan and ND Barton to appear, subject to each of them bearing its, their or his own costs of the application.

2. That Gregory Michael Moloney and Peter Ivan Felix Geroff be appointed to wind up the schemes involving:

a) Mackay Leagues Club Ltd;

b) Numinko Pty Ltd;

c) Sentry Alliance Pty Ltd;

d) Plymouth Greens Pty Ltd, Atlantic 3 Maryborough Mortgage Pty Ltd Advance; and

e) Clearview Properties Pty Ltd.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2003] QSC 265
PARTIES:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (applicant) v ATLANTIC 3 FINANCIAL (AUST) PTY LTD ACN 056 262 723 (first respondent) FREDRIC ACKER (second respondent) GERILYN MARIE POLANSKI (third respondent)
FILE NO:	S4426 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	19 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2003
JUDGE:	Mullins J
ORDER:	1. Leave be given to each of CB Darvall & Darvall, the intervening investors, DF Kerrigan and ND Barton to appear, subject to each of them bearing its, their or his own costs of the application. 2. That Gregory Michael Moloney and Peter Ivan Felix Geroff be appointed to wind up the schemes involving: a) Mackay Leagues Club Ltd; b) Numinko Pty Ltd; c) Sentry Alliance Pty Ltd; d) Plymouth Greens Pty Ltd, Atlantic 3 Maryborough Mortgage Pty Ltd Advance; and e) Clearview Properties Pty Ltd.
CATCHWORDS:	CORPORATIONS LAW – MANAGED INVESTMENT SCHEME – WINDING UP BY COURT – where court ordered that 15 unregistered managed investment schemes operated by the respondent company be wound up pursuant to s 601EE Corporations Act 2001 (Cth) – where the issue of the identity of the person to carry out the winding up was to be determined – where ASIC sought an order that registered liquidators be appointed to wind up the schemes – where respondent proposed to wind up the schemes subject to external control and/or supervision ordered by the court – all factors relevant to the winding up of an unregistered scheme must be balanced in determining who should be the party given the responsibility for winding up the scheme and on what terms CORPORATIONS LAW – MANAGED INVESTMENT SCHEME– WINDING UP BY COURT- where proposal to wind up unregistered managed investment schemes by transferring them to a registered scheme – whether transfer of unregistered scheme to registered scheme amounts to winding up Corporations Act 2001 (Cth) Property Law Act 1974 Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 Australian Securities and Investments Commission v TakaranPty Ltd (2002) 43 ACSR 46 Australian Securities and Investments Commission v Takaran Pty Ltd (No 2) (2002) 43 ACSR 334 Australian Securities Investments Commission v Young (2003) QSC 29 Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156 Re Crust `N’ Crumb Bakers (Wholesale) Pty Ltd [1992] 2QdR 76 Lawloan Mortgages Pty Ltd v Lawloan Mortgages Pty Ltd [2003] 21 ACLC 289
COUNSEL:	RM Derrington for the applicant PE Hack SC for the respondents PJ Dunning with leave for CB Darvall & Darvall DG Clothier with leave for intervening investors L Alford with leave for Mr DF Kerrigan RP Hawkins (art. clerk) with leave for Mr ND Barton
SOLICITORS:	Australian Securities and Investments Commission for the applicant Corrs Chambers Westgarth for the respondents Marler & Darvall with leave for CB Darvall & Darvall Brian Bartley & Associates with leave for intervening…