Australian Securities Commission v Samson - [1997] FCA 739

AUSTRALIAN SECURITIES COMMISSION v. GARY SAMSON
No. VG 3169 of
1997
FED No. 739/97
Number of pages - 4
Corporations law
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
GOLDBERG J

Corporations law - whether warrant should issue under s 530C of the law - whether conditions should be attached.

Corporations Law: s 530C

Cvitanovic v Kenna and Brown Pty Limited (1995) 18 ACSR 387

Morton v Robins (1996) 14 ACLC 1197

MELBOURNE, 12 June 1997 (hearing and decision)

#DATE 12:6:1997

#ADD 14:8:1997

Counsel for the Applicant: Mr P Hiland, Regional General Counsel for Victoria

Solicitor for the Applicant: Australian Securities Commission

GOLDBERG J

The application before the Court is that pursuant to s 530C of the Corporations Law a warrant be issued authorising Malcolm Kimball Howell, an officer of the Australian Securities Commission, with such assistance as is reasonably necessary, to search for and seize any books of Idem Australia Proprietary Limited in liquidation ("the company") in the possession of the respondent.

The affidavits of Malcolm Kimball Howell, Gregory Pollard Meredith and Justin McCarthy disclose that on 12 February 1997 an order for the winding up of the company was made by Merkel J and that Mr Anthony George Hodgson was appointed official liquidator of the company. On the next day Mr Gary Samson, the respondent, telephoned the offices of Ferrier Hodgson, the firm of which the liquidator is a principal, spoke to Mr McCarthy and said he would be helping the directors of the company. Mr McCarthy asked Mr Samson to deliver the books and records of the company to the liquidator. Mr Samson said he would do so and a meeting was arranged for 25 February 1997. On 18 February 1997 Mr McCarthy spoke to Mr Samson and asked him when he would receive the books and records of the company. Mr Samson told him he would get back to him the next day.

Between 13 and 21 February 1997 Mr McCarthy had placed a number of telephone calls to Balnaves, Cooper and Company, accountants, whose office was the registered office of the company. He was told that Mr Balnaves, a principal who is the accountant for the company, was unavailable. On 18 February 1997 Mr McCarthy wrote to Mr Samson and asked him to bring the company's books and records to the meeting on 25 February 1997. On 24 February 1997 Mr Samson told Mr McCarthy he could not come the next day and the meeting was deferred to 26 February 1997. Mr Samson said he would have finalised a report as to affairs and he would bring the books to that meeting.

On 26 February 1997 Mr Samson attended the meeting with Mr McCarthy and said that he had sent the books and records of the company to Mr Balnaves for him to prepare the report as to the company's affairs. That statement was in sharp contrast to, and inconsistent with, what he had told Mr McCarthy on 24 February 1997.…

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: [1997] FCA 739
Decision Date: 12 JUNE 1997

CaseChat Overview and Summary

In the case of Australian Securities Commission v. Gary Samson, the Federal Court of Australia was asked to issue a warrant under section 530C of the Corporations Law to authorise an officer of the Australian Securities Commission to search for and seize books of Idem Australia Proprietary Limited in liquidation from the respondent, Gary Samson. The dispute arose after an order for the winding up of the company was made and Mr Anthony George Hodgson was appointed official liquidator. The liquidator had been requesting the books and records of the company from Mr Samson, but had not received them. The Australian Securities Commission sought the warrant to compel Mr Samson to deliver the books and records to the liquidator.

The central legal issue before the court was whether the conditions specified by Young J in Cvitanovic v Kenna and Brown Pty Limited should be attached to the warrant issued under section 530C of the Corporations Law. The court considered the context and content of section 530C and followed the procedure adopted in this Court by Northrop J and other judges of the Court.

The court found that Mr Samson had concealed or removed the books and records of the company, preventing and delaying the liquidator from taking custody or control of the property. The court was satisfied that the jurisdiction to issue the warrant under section 530C of the Corporations Law had been established and that this was an appropriate case where such a warrant should issue. However, the court was not satisfied at that time that the conditions referred to by Young J should be inserted in the form of the warrant or required as a condition of the execution of the warrant.

The court issued a warrant in the following terms: "You Are Hereby Authorised, with such assistance as is reasonably necessary from the staff of the Australian Securities Commission and the Australian Federal Police, to search for and to seize all property and books of the company, coming within the definition of those words in section 9 of the Corporations law, which are in the possession of the Respondent, Gary Samson and to hold possession of such property and books of the company seized under this warrant until otherwise directed by order of this Court. And You Are Authorised in order to seize such property and books of the company under this warrant to break open a building, room or receptacle where the property is or the books are or where you reasonably believe the property or books of the company to be located."

Orders