Hoult v Australian Securities and Investments Commission

[1999] FCA 765

FEDERAL COURT OF AUSTRALIA

Hoult v Australian Securities & Investments Commission [1999] FCA 765

THOMAS ASHLEY HOULT v
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR
N 3007 OF 1999

TAMBERLIN J
SYDNEY
31 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3007 OF 1999

BETWEEN:	THOMAS ASHLEY HOULT Applicant
AND:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION & ANOR Respondents
JUDGE:	TAMBERLIN J
DATE OF ORDER:	31 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is allowed and leave is given to the applicant to act in the management of Hoult Australia Pty Limited, Clinics Australia Pty Limited and Ashley & Martin Pty Limited, on condition that, with respect to the corporations other than Hoult Australia Pty Limited, the leave does not include holding office as a director.

2.        The applicant is to pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3007 OF 1999

BETWEEN:	THOMAS ASHLEY HOULT Applicant
AND:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION & ANOR Respondents

JUDGE:	TAMBERLIN J
DATE:	31 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-tempore Judgment

1. In this matter an application has been made to the Court by the applicant, Mr Thomas Ashley Hoult, who was made bankrupt on his own application on 20 October 1997, for leave of the Court under s 229 of the Corporations Law to manage a corporation within the meaning of s 91A of the Corporations Law.  The Australian Securities & Investments Commission (“ASIC”) appears in the matter as a respondent, the other respondent, Maxwell William Prentice, does not appear on the hearing of this application.

2. The position adopted by ASIC is that it wishes to bring to the attention of the Court some matters which have been referred to in the course of argument, but it does not oppose the application nor does it consent to it.  It considers that in performing its role acting in the public interest, it was incumbent on it to bring matters to the attention of the Court.  I find that this was a correct and proper role to take in the matter on behalf of ASIC.  The Court needs, in these matters, as much assistance as it can get and it would be unfortunate if cases such as the present went off, as it were, on an ex parte basis without any contradictor or without having all appropriate material.

3. The substance of the matters which have been brought to my attention by ASIC relate to a series of complaints which have been made to it but which have not been substantiated.  So far as I can determine, the contents of those complaints have never been put to Mr Hoult, and ASIC, for reasons which have been adumbrated in the evidence of Mr Pattra, has not pursued these complaints.  It is suggested that some of the complaints, at least, were not pursued because of their age and the unlikelihood perhaps, of securing a conviction in relation to them.  There were several other reasons mentioned, but at the end of the day, the ultimate fact is that these complaints were not pursued and they remain as allegations and, so far as I can see, nothing more.

4. There was one matter which concerned me in the evidence of the applicant, to which my attention was drawn by Ms Haigh for ASIC and that is the statement, in paragraph 17.2 of the affidavit of 25 January 1999, by Mr Hoult, that so far as he was aware, there was no suggestion that he had ever been derelict in the management of companies and businesses over his business lifetime.  This appears contrary to evidence that he failed to, or that Hoult Australia Pty Ltd and a number of other companies of which he was company secretary and director failed to, lodge certain returns.  An explanation of this is given by Mr Hoult.  He says that for many years the annual returns for companies of which he was a director were prepared on his instruction by the firm of chartered accountants, Stephen Page & Company, and not by himself or the companies.  This is adverted to in his affidavit of 22 April 1999.  Whilst not entirely satisfactory there is no other significant evidence of irregularity.

5. In all the circumstances, I am satisfied it is appropriate that, on a limited basis, Mr Hoult should be given leave to act in the management of three nominated corporations which have been referred to in evidence.  The names of those corporations are Hoult Australia Pty Limited, Clinics Australia Pty Limited and Ashley & Martin Pty Limited.

6. The order of the Court is that Mr Hoult be given leave, under s 229(1), to manage those three corporations. I have a broad power to impose conditions under s 229(5), and the condition I impose is that, the leave will not include holding office as a director of the corporations which have been nominated other than Hoult Australia Pty Limited. So far as costs are concerned, my prima facie view is that the costs ought be borne by Mr Hoult because it is his application and leave was required.  I order the costs of ASIC on this application to be paid by Mr Hoult.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             31 May 1999

Counsel for the Applicant:	P Walsh
Solicitor for the Applicant:	Browne & Associates
Counsel for Australian Securities & Investments Commission:	K Haigh (Solicitor)
Solicitor for Australian Securities & Investments Commission:	In House Solicitors
Date of Hearing:	31 May 1999
Date of Judgment:	31 May 1999