Australian Securities Commission v Neely, Robert Lee

[1996] FCA 965

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION  No. VG 3489/96 of 1996

BETWEEN

AUSTRALIAN SECURITIES COMMISSION
  Applicant

- and -

ROBERT LEE NEELY

Respondent

JUDGE:Merkel J

PLACE:Melbourne

DATE:26 September 1996

REASONS FOR JUDGMENT
In this matter the Australian Securities Commission has applied for the costs of and incidental to an application for a warrant to obtain documents of Sugar Shack Australia Pty Limited. The respondent was an officer of that company. Under s.483 of the Corporations Law he was obliged to deliver up documents of the company. Correspondence passed between the liquidator and the respondent prior to the issue of the warrant. In particular, by a letter of 27 June 1996, which was not received until 17 July 1996, the respondent indicated where documents of the company could be located.

In the events that occurred a warrant was issued at other premises including premises under the control of the respondent which produced a significant number of documents of the company. In all the circumstances it seems to me that the respondent should pay the costs of the proceeding. The respondent appears to have had documents under his control which were not delivered up by him to the liquidator in accordance with s.483. Further, when given the opportunity to identify where the documents may be obtained the respondent gave locations which were incomplete. Indeed it would appear the locations were significantly incomplete if regard is had to the manner in which the warrant was ultimately executed.

In those circumstances and having to approach the matter broadly, as I must on a costs application of this kind, it does appear that the warrant and the proceedings in relation to it were caused to a significant extent by conduct of the respondent which ought not to have occurred.  And in those circumstances it is appropriate that the respondent pay the costs of and incidental to the proceeding.  And I so order.

I certify that this and the preceding page are a true copy of the Reasons for Judgment of the Honourable Justice Merkel

Associate:

Dated:

Heard:26 September 1996

Place:Melbourne

Judgment:26 September 1996

Appearances:  Mr. P. Hiland instructed by the Australian Securities Commission appeared for the applicant.

Mr. P. Cawthorn instructed by McKean & Park Solicitors appeared for the respondent.