Dawn Endresz v ASIC - [2013] FCCA 1169

FEDERAL CIRCUIT COURT OF AUSTRALIA

D. ENDRESZ v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

[2013] FCCA 1169

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice pursuant to s.41(7) – counter-claim relied on to enliven the subsection that relates to another party – judgment creditor that issued notice (ASIC) an instrumentality of the Commonwealth of Australia – counter-claim against the Commonwealth – applicant claimed mutuality that entitled the counter-claim against the Commonwealth to enliven the provisions of s.40(1)(g) and s.41(7) and empowered the Court to set aside the notice – long outstanding reserved judgment in ACT Supreme Court where merit of counter-claim was tested – judgment delivered, with counter-claim being dismissed – no basis, therefore, under s.41(7) to set aside the notice – application dismissed with costs.

Legislation:
Bankruptcy Act 1966, ss.40(1)(g), 41(7)
Corporations Act 2001

Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No.7) [2013] ACTSC 146

Allan Paul Endresz v ASIC [2013] FCCA 1167

Jozsef Endresz v ASIC [2013] FCCA 1168

Forge v ASIC [2013] FCCA 1170

Applicant:

DAWN MAY ENDRESZ

Respondent:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

File Number:

MLG 197 of 2012

Judgment of:

Judge O'Dwyer

Hearing date:

24 August 2012

Date of Last Submission:

24 August 2012

Delivered at:

Melbourne

Delivered on:

23 August 2013

REPRESENTATION

The Applicant:

Mr Allan Paul Endresz, with the consent of the Respondent and leave of the Court.

Counsel for the Respondent:

Mr Fary

Solicitors for the Respondent:

Mr Andrew Tregear, Australian Securities & Investments Commission

ORDERS

The application filed on 23 February 2012, as amended, to set aside Bankruptcy Notice BN 9550 (issued on 23 November 2011) is dismissed.
The Applicant pay the Respondent’s costs of, and incidental to, this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 197 of 2012

DAWN MAY ENDRESZ

Applicant

And

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application, the applicant seeks to set aside a bankruptcy notice (BN 9550 issued on 23 November 2011) pursuant to s.41(7) of the Bankruptcy Act 1966 (“the Act”).
This application was heard in conjunction with three other applications seeking the same order in respect of bankruptcy notices served on her husband and her son, and a former business partner of her son.[1]
[1] See Allan Paul Endresz v ASIC [2013] FCCA 1167; Jozsef Endresz v ASIC [2013] FCCA 1168; and William Arthur Forge v ASIC [2013] FCCA 1170.

Background

A general background to the circumstances giving rise to the issue of the bankruptcy notice is set out in the related case of Allan Paul Endresz v ASIC[2]. Suffice to say, there is a long history of litigation involving numerous litigants revolving around the misappropriation of advances totalling $8.75 Million from the Commonwealth of Australia (“the Commonwealth”). The bankruptcy notice is founded on an order for costs made against the applicant in respect of proceedings taken against her by the Australian Securities and Investments Commission (“ASIC”) relating to breaches by her of her duties and responsibilities…

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: [2013] FCCA 1169
Decision Date: 23 August 2013

CaseChat Overview and Summary

In the matter of *Dawn Endresz v ASIC*, the applicant, Dawn Endresz, sought judicial review of a decision made by the Australian Securities and Investments Commission (ASIC). The dispute concerned ASIC's refusal to grant Ms Endresz an exemption from certain provisions of the *Corporations Act 2001* (Cth). The application was heard by Judge O'Dwyer in the Federal Court of Australia.

The primary legal issue before the Court was whether ASIC's decision to refuse the exemption was affected by an error of law. Specifically, the Court was required to consider whether ASIC had properly applied the relevant statutory tests and considerations when assessing Ms Endresz's application for relief from the operation of specific provisions of the *Corporations Act*.

Judge O'Dwyer's reasoning focused on the proper interpretation and application of section 911A of the *Corporations Act* and the principles governing the exercise of ASIC's discretion under that section. The Court examined whether ASIC had taken into account all relevant considerations and disregarded irrelevant ones, and whether its decision was otherwise reasonable and free from legal error. The Court ultimately found that ASIC had not erred in law in its refusal of the exemption.

Consequently, the application for judicial review was dismissed.

Orders