Re Seymour - [2002] TASSC 85

[2002] TASSC 85

CITATION: In re Seymour [2002] TASSC 85

PARTIES: SEYMOUR, Anthony Wayne, In re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M23/2002
DELIVERED ON:  17 October 2002
DELIVERED AT:  Hobart
HEARING DATE:  11 September, 2 October 2002
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Corporations - Management and administration - Disqualification - Convicted persons - Leave to manage - Principles applicable - Offence against Corporations Law.

Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203 , followed.
Zim Metal Products Pty Ltd (1977) 2 ACLR 553, referred to.
Corporations Act 2001 (Cth), s206G.
Aust Dig Corporations [93]

REPRESENTATION:

Counsel:
             Applicant:  W Griffiths
             Respondent Companies:                  M Daly
             Intervenor ASIC:  A Abbott
Solicitors:
             Applicant:  Bishops
             Respondent Companies:                  Murray & Associates
             Intervenor ASIC:  Australian Securities & Investment Commission

Judgment Number: [2002] TASSC 85
Number of paragraphs: 16

Serial No 85/2002
File No M23/2002

IN THE MATTER OF ANTHONY WAYNE SEYMOUR

REASONS FOR JUDGMENT COX CJ
17 October 2002

This is an application by a person who, in consequence of his conviction on 16 January 2002 for offences against the Corporations Law, was automatically disqualified from managing corporations for a period of five years therefrom, for an order pursuant to the Corporations Act 2001, s206G, that he have leave to manage each of 28 companies.

The applicant pleaded guilty to two charges, namely one count of knowingly being concerned in a company that was operating an unregistered management investment scheme, contrary to the Crimes Act 1914 (Cth), s5, and the Corporations Law, s601ED, and one count of knowingly being concerned in a company that offered for subscription securities without a registered prospectus, contrary to the Crimes Act, s5, and the Corporations Law, s1018(1). Section 601ED, at the relevant time, required that a managed investment scheme be registered under s601EB if it had more than 20 members. Section 1018(1) prohibited the offer for subscription or the issue of invitations to subscribe for securities of a corporation unless (inter alia) the prospectus, if registrable, had been registered under s1020A. A prospectus was not registrable, however, if the offer of securities for subscription was an excluded offer of securities for subscription (s1017(b)). Section 66(3)(d)(ii) provided that an offer or invitation in relation to securities was an excluded offer or an excluded invitation if it were made to persons not exceeding 20 in number.

The offences occurred approximately three years ago and according to the applicant's affidavit upon which he was not cross-examined by counsel for the companies which he seeks leave to manage (and which support his application), or by counsel for Australian Securities and Investments Commission ("ASIC") which intervened in the proceedings, the offence of knowingly being concerned in a company that was operating an unregistered managed investment scheme came about because, although the applicant intended to confine the number of members of the scheme to 20 or less, a large number of applications, accompanied by cheques, for the amount invested came in…

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 Seymour

Details

AGLC: Re Seymour [2002] TASSC 85
Case: [2002] TASSC 85
Decision Date: 17 October 2002

CaseChat Overview and Summary

The case of Re Seymour involved Anthony Wayne Seymour, who was automatically disqualified from managing corporations for a period of five years due to his conviction for offences against the Corporations Law. The applicant sought an order under the Corporations Act 2001, s206G, allowing him to manage 28 companies. Seymour pleaded guilty to knowingly being concerned in a company that was operating an unregistered management investment scheme and in a company that offered for subscription securities without a registered prospectus. The Supreme Court of Tasmania was required to decide whether to grant Seymour leave to manage the 28 companies despite his disqualification. The court considered the nature of the offence, Seymour's involvement, and his general character, including his conduct since being removed from management. The court also evaluated the structure of the companies, their businesses, and the interests of their shareholders, creditors, and employees.

The court found that there was no suggestion of fraud or dishonesty involved in the offences, and no loss had been sustained by the unlawful conduct. Seymour had cooperated with the authorities and had a good character with no prior convictions. The applicant was a significant shareholder in each of the 28 companies and had provided critical advice to the companies. The court concluded that the prerequisites to an order granting unrestricted leave had been established by the applicant and that there was no suggestion of any danger to the public if the order sought was made. The application was granted, allowing Seymour to manage the 28 companies.

Orders