Leaver v Australian Securities and Investments Commission

[2012] FCA 834

FEDERAL COURT OF AUSTRALIA

Leaver v Australian Securities & Investments Commission [2012] FCA 834

Citation:		Leaver v Australian Securities & Investments Commission [2012] FCA 834
Parties:		WILLIAM LEAVER v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
File number:		WAD 114 of 2012
Judge:		GILMOUR J
Date of judgment:		19 July 2012
Legislation:		Corporations Act 2001 (Cth) s 601AH (2)
Determined on the papers:	19 July 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	12
Counsel for the Applicant:	Ms A Aldrich
Solicitor for the Applicant:	Alison & Associates (Legal) Pty Ltd
Counsel for the Respondent:	No appearance

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 114 of 2012

BETWEEN:	WILLIAM LEAVER Applicant
AND:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	19 JULY 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The Australian Securities and Investments Commission pay from its Unclaimed Monies Unit, to the applicant, the sum of $92,719.26.

NOTE:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 114 of 2012

BETWEEN:	WILLIAM LEAVER Applicant
AND:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Respondent

JUDGE:	GILMOUR J
DATE:	19 JULY 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This application was originally made under s 601AH (2) of the Corporations Act 2001 (Cth) for an order to reinstate a deregistered company, Unitshelfco No 116 Pty Ltd (the Company).

2. The relief sought, for reasons that will become apparent, was subsequently amended to seek an order, in effect, that the Australian Securities and Investments Commission pay from its Unclaimed Monies Unit the sum of $92,719.26 directly to the applicant, without having the Company reinstated.

   THE RELEVANT FACTS

3. In June 1982, the Company was registered for the purpose, I infer from the evidence, of holding certain property in trust.

4. The directors of the Company were the applicant’s father, Donald Charles, and one of the applicant’s brothers, Ernest Eric Leaver, both of whom are now deceased.

5. On 17 August 1982, the Company purchased 23 Crawford Court, York, Western Australia (the Property), which it held as trustee.  I was informed that the trust deed was unable to be located.

6. The application as amended was supported by an affidavit of the applicant sworn 14 May 2012, in which he deposed that he was a former director of the Company although this transpired to have been stated in error.  The day before this matter was to come on for hearing, 5 July 2012, the applicant swore a further affidavit to the effect that he had never been a director of the Company, and that he wished to amend the final relief sought.  The applicant deposed that he was the beneficiary of the trust.  The applicant, in a subsequent affidavit sworn 9 July 2012, deposed, in effect, that he had provided the monies for the Company to purchase the Property and that he alone paid the Shire rates, land tax, water rates and any other costs associated with the Property. 

7. The Company was deregistered on 24 February 1987 under the Companies (Western Australia) Code. 

8. It would appear from the Record of Certificate of Title that the Property was sold pursuant to a Property (Seizure and Sale) Order, registered on 20 May 2011, with the net proceeds of that sale being held by ASIC in its Unclaimed Monies Unit.

9. The amended claim for relief was further supported by affidavits of the applicant’s siblings: Ronald Leaver, Gerald Leaver, Bruce Leaver and Stephen Leaver, all of whom depose that they were aware that the applicant helped establish the Company in mid 1982.  They deposed further that they were aware that the Property had been purchased in the Company’s name for the benefit of the applicant, and that they had no claim over the Property now or in the future.  Accordingly, their evidence is consistent broadly with that of the applicant.

10. ASIC has been notified of the amended relief sought by the applicant, and by letter dated 5 July 2012, confirmed that it had no objection to an order being made directing it to pay the money to the applicant from its Unclaimed Monies Unit.

11. Whilst there was no argument directly on this point I am satisfied that the Property was held by the Company in trust for the sole benefit of the applicant.  ASIC has assumed the position of trustee of those monies and obviously accepts that those monies should be paid to the applicant as the sole beneficiary. 

12. I am satisfied that grounds exist for the relief sought and will so order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        8 August 2012