DPP v Loo & Ors

The matter of the Director of Public Prosecutions versus Loo and others was heard in the Supreme Court of Victoria. The defendants were accused of engaging in illegal conduct, including insider trading, and the prosecution sought a restraining order under the Confiscation Act 1997 (Vic). The central issue before the court was whether the making of such an order was directly inconsistent with the provisions of Chapter 5 of the Corporations Act 2001 (Cth). The defendants argued that the Commonwealth legislation should prevail over the State law, given the inconsistency. The court was tasked with determining whether the provisions of the Corporations Act precluded the state law from applying in this context.

The court examined the provisions of the Corporations Act, particularly sections 482 and 500(2), to ascertain whether they placed the property of a company in liquidation beyond the scope of a potential claim by a third party. The court found that these provisions did not operate to exclude the possibility of a third party claim against the property of a company in liquidation. Consequently, the court held that the making of a restraining order under the Confiscation Act did not give rise to the assertion of rights inconsistent with the scheme of the Corporations Act. This decision distinguished the earlier case of Tat Sang Loo v DPP, where the court had found an inconsistency between state and Commonwealth laws.

Having concluded that there was no direct inconsistency between the state and Commonwealth laws, the court allowed the restraining order sought by the prosecution. The defendants' appeal was dismissed, and the court issued the restraining order as requested by the prosecution. This decision clarifies the relationship between state and Commonwealth laws in the context of restraining orders and third-party claims against the property of a company in liquidation.