Corplan Nominees P/L v The Insurance & Superannuation Commission

[1994] FCA 589

SXOI 99

JUDGMENT NO. ..... , ,.... J , , , . , . .

l * No. QG 20 of 1994

l

- 1

BETWEEN: CORPLAN NOMINEES PTY. LTD.

(A.C.N. 010 178 784)

Applicant

AND :  URANCE AND SUPERANNUATION

COMMISSION

Respondent

8	-	Drummond J
-8	19 August,
HKEu&uE:	Brisbane

1.         Upon Mr. Pearson, in person, undertaking to the Court to make restitution in respect of his breaches of the order of 22 February, 1994 referred to in the document entitled "Admissions and offers by the respondent", being Exhibit 1, by payment to the respondent by 1 November, 1994 of the sum of $19,483.50, the application by the respondent, The Insurance and Superannuation Commission, is dismissed.

K!!Es	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rulea.
TI Ig COURT W.	BY W N T . THAT:

1.         Mr. Pearson pay to the respondent its costs of and

incidental to this application, to be taxed on an
indemnity basis.

2.         Leave is given to the respondent to tax those costs forthwith.

m THE FEDERAL COURT OF AUS-	)	No. QG 20 of 1994
1
-	1

BETWEEN: CORPLAEI NOMINEES PTY. LTP,

(A.C.N. 010 178 784)

Applicant

AND :	THE I N S U w	AND SUPERANNUATION
COMMISSION

Respondent

cQrm0:	Drummond J 19 August, 1994
u & S :	Brisbane

REASONS FOR

By notice of motion the Insurance and Superannuation Conmission ("the Commission") seeks orders in respect of Mr. Pearson's contempt, constituted by his involvement in the breach in a number of respects of orders I made on 22 February, 1994 in proceedings between Corplan Nominees Pty.

Conmission. As things developed before me today, the Ltd., a company with which Mr. Pearson is associated, and the

Commission seeks to establish that Mr. Pearson was in contempt

of court, not in respect of all the matters the subject of the statement of charges, but only in respect of two areas covered by it, viz., that covered by paragraph 1 and that covered by paragraph 2, but only insofar as it relates to a cheque for $708.27.

Mr. Pearson has made formal admissions that he was involved in breaches of the orders of 22 February last in all these particular respects. He further admits that in each case his breach was a reckless one.

The object of the orders in relation to those bteaches which he admits he committed and in respect of which alone the Commission seeks orders today was to ensure that persons beneficially interested in the Beneflex Retirement Plan, a plan administered by Mr. Pearson's company, Corplan Nominees Pty. Ltd., would not suffer any detriment, additional to that which already existed as at 22 February, 1994. The inevitable consequence of Mr. Pearson's breaches of this order has been that those persons will suffer an additional detriment.

However, Mr. Pearson, in addition to formally
admitting his contempt, of fers to the Court an undertaking to

make restitution by payment to the respondent, i.e., the

Commission, by 1 November, 1994, of the sum of $19,483.50,

such restitution to be paid by him to ensure the protection for the beneficiaries of the Beneflex Retirement Plan intended by the spirit and the letter of my orders made on 22 February, 1994. The Commission accepts that the amount offered by Mr. Pearson in this undertaking is, indeed, equivalent to full restitution for the detriment that his breaches have imposed on the members of the Plan.

It seems to me that in these circumstances this case, unlike the one which I dealt with yesterday and this morning involving Mr. Pearson at the suit of the Australian Securities Commission ("ASC"), does not involve conduct on the part of Mr. Pearson that can properly be described as conduct done in deliberate defiance of the authority of the Court as reflected in its orders of 22 February. It is still conduct seriously in breach of the obligations imposed by those orders insofar as it is, on Mr. Pearson's own admission, conduct that was done in reckless disregard of those obligations. But it seems to me that the absence of any element of deliberate defiance is an important factor in Mr. Pearson's favour.

The other area in which this case is differentiated from the case involving Mr. Pearson and the ASC is that here his breaches have inflicted a detriment on various persons and, in particular, persons for whose very protection the order he has breached was made. But in answer to that proposition, I have the undertaking to pay what the Commission

accepts will be full recompense for that detriment.

In my view, in all these circumstances, the objects of punishment for contempt of court constituted by a breach of the Court's orders will be adequately met by accepting Mr. Pearson's undertaking and by making an order, which Mr. Pearson offers to consent to in any event, that he pay the respondent8s costs of and incidental to this application for contempt, to be taxed on an indemnity basis, although I think that in addition to that, it would also be appropriate to give leave to the Commission to tax those costs forthwith. I assume that his advisers will have told him that any breach of his offered undertaking will itself constitute a further contempt of court for which he can be dealt with.

The order of the Court will therefore be that upon Mr. Pearson, in person, undertaking to the Court to make restitution in respect of his breaches of the order of 22 February, 1994 referred to in his admission, exhibit 1, by payment to the respondent by 1 November, 1994 of the sum of $19,483.50, the application by the respondent, Insurance and Superannuation Commission, is dismissed.

I will also order, by consent, that Mr. Pearson pay to the respondent Commission its costs of and incidental to this application, to be taxed on an indemnity basis, and I will further give leave to the respondent Commission to tax those costs forthwith.

I certify that this and the preceding

three pages are a true copy of the reasone for judgment herein of the Honourable Mr. Justice Drummond.

Associate:  L Ed AGfLy

Date 8 19 August, 1994

Counsel for the applicant:	J.A. Jerrard Q.C.
Solicitors for the applicant:	Robertson OPGorman
Counsel for the respondent:	R.P. Devlin
Solicitors for the respondent:	Australian Government Solicitor
Date of Hearing:	18 August, 1994