Australian Securities Commission v Malumby Pty Ltd

[1995] FCA 723

IN THE FEDERAL COURT OF AUSTRALIA )No QG 3011 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

IN THE MATTER OF MALUMBY PTY. LTD. & ANOTHER

BETWEEN:  AUSTRALIAN SECURITIES COMMISSION

Applicant

AND:     MALUMBY PTY. LTD. (ACN 066 146 192)

First Respondent

AND:NAMA ANDREWS

Second Respondent

AND:ANNA SOUAD BARDAN AND RABY BARDAN

Third Respondents

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              5 September, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. The applicant be granted leave to amend its application to join Anna Souad Bardan and Raby Bardan as respondents to the application.

1. An interim injunction restraining Nama Andrews, whether by herself or by her servants or agents, in any way howsoever, until 4.00 p.m. on 8 September, 1995 or earlier or further order, from withdrawing funds held in her name as at 4 September, 1995 from the Loganholme Branch of Metway Bank account number 484 091 043 4473 be granted pursuant to s. 1324(4) the Corporations Law.

1. An interim injunction restraining the directors of the first respondent, whether by themselves, by their servants or their agents, in any way howsoever from encumbering, transferring or dealing in any way, until 4.00 p.m. on 8 September, 1995 or earlier or further order, with land described as Lot 309 and Lot 310 on RP 810 370 in the County of Stanley
   Parish of Mackenzie in the State of Queensland be granted pursuant to s. 1324(4) the Corporations Law.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 3011 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

IN THE MATTER OF MALUMBY PTY. LTD. & ANOTHER

BETWEEN:  AUSTRALIAN SECURITIES COMMISSION

Applicant

AND:     MALUMBY PTY. LTD. (ACN 066 146 192)

First Respondent

AND:NAMA ANDREWS

Second Respondent

AND:ANNA SOUAD BARDAN AND RABY BARDAN

Third Respondents

Coram:    Drummond J
Date:     5 September, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

So far as the claim in respect of the money which was at least until this morning held on deposit in Mrs. Andrews' name, I am satisfied that it is desirable to grant an interim injunction pending determination of the application the Australian Securities Commission intends to make for an injunction under s. 1324(1) the Corporations Law.  A large part of the cash balance available to the company as a result of mortgaging a company asset was paid very promptly to Mrs. Andrews by the company in circumstances where the evidence indicates that the only people with legal authority to bind the company have not acted on behalf of the company, but simply at the direction of Mr. Andrews, Mrs. Andrews' husband, i.e., in circumstances involving a possible contravention by those directors of s. 232(4) the Corporations Law.

I am satisfied that there is sufficient before me to justify the grant of an interim injunction restraining the directors of the first respondent, but not the first respondent itself, from dealing with the two blocks of land pending determination of an application by the Australian Securities Commission under s. 1324(1) the Corporations Law, based upon a possible contravention of s. 232(4) the Corporations Law by the directors of the first respondent, who, on the evidence, are acting not on behalf of the company, or in the interests of the company, but simply at the direction of Mr. Andrews.

I certify that this and the preceding
page are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.

Associate:

Date:        5 September, 1995