Australian Prudential Regulation Authority v Siminton (No 12) - [2008] FCA 101

FEDERAL COURT OF AUSTRALIA
Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101
PRACTICE AND PROCEDURE – Notice of motion on behalf of the receiver – Application seeking further funds to be included in the receivership, an extension of time of the receivership and for the respondent to attend for examination and file an affidavit of documents – Whether respondent should be excused in limine from swearing affidavit or attending for examination – Whether examination or affidavit of documents would expose respondent to self incrimination - Application granted in part
WORDS AND PHRASES – “in limine objection”
Banking Act 1959 (Cth) ss 7 and 66
Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 referred to
Refrigerated Express Lines (A/sia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204 followed
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 referred to
Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 referred to
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v DAVID ROBERT SIMINTON
VID 1607 OF 2005
TRACEY J
21 FEBRUARY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1607 OF 2005

BETWEEN:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Applicant

AND:

DAVID ROBERT SIMINTON
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

6 FEBRUARY 2008 (ORDERS 1-3); 21 FEBRUARY 2008 (ORDERS 4-6)

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The following funds be included in the funds described as Schedule A of the Orders made herein on 7 November 2007:
(a)the amount of $43,950.73 which was previously in Technocash Pty Ltd account number 6276 2747 3470 5861 in the name of Agios/Lionsgate Savings & Loans and was transferred to McGrathNicol Appointment Trust Account (account number 032 000 584 911) on or about 15 November 2007;
(b)the amount of $70.50 which was previously in Technocash Pty Ltd (account number 6276 2735 2556 2101) in the name of Agia and which was transferred to the McGrath/Nicol Appointment Trust Account on or about 15 November 2007;
(c)the amount of US$31,010 held in Technocash Pty Ltd account number (6276 2792 0407 2783) in the name of Platinum Continental Limited;
(d)any funds held on behalf of the Respondent, the Principality of Camside or the Terra Nova Cache in Anglo Irish Bank (Austria) AG account number (304814) in the name of the Respondent; and
(e)any funds held on behalf of the Respondent, the Principality of Camside or the Terra Nova Cache in Adelaide Bank account number (070787941 (BSB 610‑101)) in the name of Dale and Karen Holzheimer.

2.The period of the Receiver’s appointment pursuant to paragraph 1 of the Orders made on 7 November 2007 be extended to 7 April 2008;
3.The time within which the Receiver is required to prepare and file the report referred to in paragraph 12 of the Orders made on 7 November 2007 be extended to 10 March 2008.
4.The Respondent file, by 4:00 pm on 29 February 2008, an affidavit:
(a)listing the documents relating to monies received from members of…

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: [2008] FCA 101
Decision Date: 21 February 2008

CaseChat Overview and Summary

The Australian Prudential Regulation Authority (APRA) brought an application against Siminton in relation to funds held in various accounts. The court was asked to determine the inclusion of certain funds in the assets subject to a receivership and to extend the period of the receiver's appointment. The case centred around the identification and inclusion of specific funds in the receivership, the extension of the receiver's appointment period, and the requirement for Siminton to provide an affidavit detailing the documents relating to funds received from the public for deposit in the Terra Nova Cache.

The court was required to decide whether certain funds were to be included in the receivership, the appropriate extension of the receiver's appointment period, and the necessity of Siminton providing an affidavit regarding the documents related to the Terra Nova Cache. The decision also addressed the timeline for filing the receiver's report and the provision of documents by Siminton.

The court determined that the specified funds should be included in the receivership, extended the receiver's appointment period, and ordered Siminton to file an affidavit detailing the documents related to the Terra Nova Cache. The court further extended the deadline for the receiver's report and allowed for the provision of documents by Siminton to the receiver, reserving liberty to apply for further orders as necessary.

The final orders included the inclusion of specified funds in the receivership, an extension of the receiver's appointment period, a deadline for filing an affidavit by Siminton, and a timeline for the receiver's report. The court also allowed for applications regarding the description of documents in any affidavits filed by Siminton.

Orders

Orders of the court

1. The following funds be included in the funds described as Schedule A of the Orders made herein on 7 November 2007:

(a) the amount of $43,950.73 which was previously in Technocash Pty Ltd account number 6276 2747 3470 5861 in the name of Agios/Lionsgate Savings & Loans and was transferred to McGrathNicol Appointment Trust Account (account number 032 000 584 911) on or about 15 November 2007;

(b) the amount of $70.50 which was previously in Technocash Pty Ltd (account number 6276 2735 2556 2101) in the name of Agia and which was transferred to the McGrath/Nicol Appointment Trust Account on or about 15 November 2007;

(c) the amount of US$31,010 held in Technocash Pty Ltd account number (6276 2792 0407 2783) in the name of Platinum Continental Limited;

(d) any funds held on behalf of the Respondent, the Principality of Camside or the Terra Nova Cache in Anglo Irish Bank (Austria) AG account number (304814) in the name of the Respondent; and

(e) any funds held on behalf of the Respondent, the Principality of Camside or the Terra Nova Cache in Adelaide Bank account number (070787941 (BSB 610‑101)) in the name of Dale and Karen Holzheimer.

2. The period of the Receiver’s appointment pursuant to paragraph 1 of the Orders made on 7 November 2007 be extended to 7 April 2008;

3. The time within which the Receiver is required to prepare and file the report referred to in paragraph 12 of the Orders made on 7 November 2007 be extended to 10 March 2008.

4. The Respondent file, by 4:00 pm on 29 February 2008, an affidavit:

(a) listing the documents relating to monies received from members of the public for deposit in the Terra Nova Cache (“the Documents”) he has in his possession, custody or power;

(b) listing the Documents he once had, but now does not have, in his possession, custody or power;

(c) setting out, in respect of the Documents referred to in sub-paragraph (b) above, what has become of those Documents and where they are now located; and

(d) setting out, to the extent that he claims that any of the Documents referred to in the sub-paragraphs above are subject to a claim in respect of privilege, the basis for the claim of privilege.

5. The Respondent provide to the Receiver, within seven days of a written request being made by or on behalf of the Receiver, a copy of the Documents listed in the affidavit (other than documents for which privilege is claimed) referred to in paragraph four above.

6. Liberty to apply is reserved generally and in relation to the description of any particular document or documents appearing in any affidavit prepared in compliance with paragraph four above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1607 OF 2005

BETWEEN:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY Applicant
AND:	DAVID ROBERT SIMINTON Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	6 FEBRUARY 2008 (ORDERS 1-3); 21 FEBRUARY 2008 (ORDERS 4-6)
WHERE MADE:	MELBOURNE