Re: Colin Gregory Ryan - [2014] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Colin Gregory Ryan [2014] QSC 18

PARTIES:

COLIN GREGORY RYAN
(applicant)
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(intervenor)

FILE NO:

BS676 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

10 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2014 and 10 February 2014

JUDGE:

Peter Lyons J

ORDERS:

1. Pursuant to s.206G of the Corporations Act 2001, leave is granted to the applicant to manage, on and from 15 March 2014, CMI Limited (ACN 050 542 553) (CMI), such leave to cease:

a.       if there are less than 4 directors of CMI, not including the applicant, for a period of 14 days or more; or

b.       should CMI make an offer of, or issue, debentures to members of the public in order to use the money obtained through such an issue for investment purposes.

2.   No order as to costs.

CATCHWORDS:

CORPORATIONS – MANAGEMENT AND ADMINISTRATION – DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION – DISQUALIFICATION FROM MANAGEMENT OF CORPORATION – LEAVE TO MANAGE OR ACT AS DIRECTOR – where applicant was convicted under the Securities Act 1978 (New Zealand) and automatically disqualified under section 206B of the Corporations Act 2001 (Cth) from managing a corporation in Australia for five years without leave of the Court – where applicant held honest belief in the truth of the statements subject to charges – where prior to the charges the applicant successfully managed companies for over thirty years – whether the applicant should be granted leave to manage a company with four other directors and companies with the applicant and his wife as directors.

Corporations Act 2001 (Cth), s 206B, s 206G
Securities Act 1978 (New Zealand), s 58

ASIC v Healey & Ors (No 2) (2011) 196 FCR 430, [2011] FCA 1003, followed
Duffy, Re: Westgate Ports Ltd (2010) 79 ACSR 267, [2010] FCA 608, followed

COUNSEL:

B O’Donnell for the applicant
M Steele for the intervenor

SOLICITORS:

Allens Lawyers for the applicant
Australian Securities and Investments Commission for the intervenor

PETER LYONS J: On 15 March 2013, the applicant was convicted on his pleas of guilty of three offences under section 58 of the Securities Act 1978 (New Zealand). The result of his convictions is that, under section 206B of the Corporations Act 2001 (Cth), he is automatically disqualified from managing a corporation in Australia for a period of five years. He has, however, applied under section 206G of that Act for leave to manage a corporation. The application is opposed by the Australian Securities and Investment Commission.

It is necessary to say something about the circumstances in which the offences were committed. On 19 December 2006, the applicant became a director of a New Zealand company Capital+Merchant Finance Limited, referred to as CMF. CMF is a New Zealand public company. It had a board of five directors. Three were executive directors and were resident in New Zealand. Two, including Mr Ryan, were non‑executive directors, and were resident…

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.

Continue reading Re: Colin Gregory Ryan

Details

AGLC: Re: Colin Gregory Ryan [2014] QSC 18
Case: [2014] QSC 18
Decision Date: 10 February 2014

CaseChat Overview and Summary

The case involves Colin Gregory Ryan, who applied for leave to manage a corporation under the Corporations Act 2001 (Cth) after being disqualified due to a conviction under the Securities Act 1978 (New Zealand). Ryan had a lengthy history of managing companies and had an honest belief in the truth of the statements he was charged with. He sought permission to manage CMI Limited (ACN 050 542 553) and other companies with specific conditions. The court had to determine whether Ryan should be granted leave to manage these corporations given his prior disqualification and the conditions of the application.

The primary legal issue before the court was whether Ryan should be granted leave to manage a corporation, considering his disqualification under section 206B of the Corporations Act 2001 (Cth). This required the court to weigh Ryan's lengthy experience in managing companies against the statutory disqualification and assess whether the proposed conditions were sufficient to mitigate the risk to the public and creditors. The court also had to consider Ryan's belief in the truth of the statements subject to charges and his otherwise unblemished management record.

The court determined that Ryan's extensive experience and the specific conditions of the application warranted granting leave. The conditions included maintaining a minimum of four directors at CMI, excluding Ryan, and prohibiting CMI from issuing debentures to the public. The court found that these conditions sufficiently safeguarded the interests of creditors and the public. Consequently, the court granted Ryan leave to manage CMI Limited from 15 March 2014, subject to the specified conditions. No order as to costs was made.

The final orders granted Ryan leave to manage CMI Limited under the conditions that there must be at least four directors, excluding Ryan, and CMI must not issue debentures to the public. These orders took effect from 15 March 2014, and any breach of the conditions would result in the automatic cessation of Ryan's leave.

Orders

Orders of the court

1. Pursuant to s.206G of the Corporations Act 2001, leave is granted to the applicant to manage, on and from 15 March 2014, CMI Limited (ACN 050 542 553) (CMI), such leave to cease:

a. if there are less than 4 directors of CMI, not including the applicant, for a period of 14 days or more; or

b. should CMI make an offer of, or issue, debentures to members of the public in order to use the money obtained through such an issue for investment purposes.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re: Colin Gregory Ryan [2014] QSC 18
PARTIES:	COLIN GREGORY RYAN (applicant) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (intervenor)
FILE NO:	BS676 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	10 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2014 and 10 February 2014
JUDGE:	Peter Lyons J
ORDERS:	*1. Pursuant to s.206G of the Corporations Act 2001, leave is granted to the applicant to manage, on and from 15 March 2014, CMI Limited (ACN 050 542 553) (CMI), such leave to cease:* a. if there are less than 4 directors of CMI, not including the applicant, for a period of 14 days or more; or b. should CMI make an offer of, or issue, debentures to members of the public in order to use the money obtained through such an issue for investment purposes. 2. No order as to costs.
CATCHWORDS:	CORPORATIONS – MANAGEMENT AND ADMINISTRATION – DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION – DISQUALIFICATION FROM MANAGEMENT OF CORPORATION – LEAVE TO MANAGE OR ACT AS DIRECTOR – where applicant was convicted under the Securities Act 1978 (New Zealand) and automatically disqualified under section 206B of the Corporations Act 2001 (Cth) from managing a corporation in Australia for five years without leave of the Court – where applicant held honest belief in the truth of the statements subject to charges – where prior to the charges the applicant successfully managed companies for over thirty years – whether the applicant should be granted leave to manage a company with four other directors and companies with the applicant and his wife as directors. Corporations Act 2001 (Cth), s 206B, s 206G Securities Act 1978 (New Zealand), s 58 ASIC v Healey & Ors (No 2) (2011) 196 FCR 430, [2011] FCA 1003, followed Duffy, Re: Westgate Ports Ltd (2010) 79 ACSR 267, [2010] FCA 608, followed
COUNSEL:	B O’Donnell for the applicant M Steele for the intervenor
SOLICITORS:	Allens Lawyers for the applicant Australian Securities and Investments Commission for the intervenor