Australian Securities and Investments Commission v Xiao [2012] NSWSC 1210

Australian Securities and Investments Commission v Xiao [2012] NSWSC 1210

The application was dismissed because Ms Hu did not discharge the onus of showing that it would be unjust to hold her to the undertaking. The undertaking had been given as practical security for Mr Xiao's return to Australia, Mr Xiao had obtained the benefit of travelling but had not returned, there was no satisfactory evidence explaining his failure to return or showing that the undertaking had no ongoing utility, and releasing Ms Hu would defeat the regime established to support his return.

Jurisdiction
Australia
Judgment Date
27 August 2012
Procedural Posture
Interlocutory Application in the Equity Division Corporations List Concerning Release From Undertakings Given in Connection With Travel Restrictions During an ASIC Insider Trading Investigation / Interlocutory Process Filed 15 June 2012 Heard and Decided on 27 August 2012
Outcome
Application dismissed with costs
Legal Topics
['insider Trading Investigation' 'undertakings to the Court' 'travel Restrictions' 'passport Surrender' 'asic Examinations']
['corporations' 'civil Procedure'] ['insider Trading Investigation' 'undertakings to the Court' 'travel Restrictions' 'passport Surrender' 'asic Examinations']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application in the Equity Division Corporations List Concerning Release From Undertakings Given in Connection With Travel Restrictions During an ASIC Insider Trading Investigation / Interlocutory Process Filed 15 June 2012 Heard and Decided on 27 August 2012

Legal Issues

  1. 1 ['Whether Ms Hu should be released from her undertaking to surrender her passport and not request its return until Mr Xiao returned to Australia from China' "Whether Ms Hu's solicitors should be released from their related undertaking not to release her passport until Mr Xiao returned, ASIC released them, or further order of the Court" 'Whether there was any ongoing utility in maintaining the undertakings after Mr Xiao had not returned to Australia']

Ratio Decidendi

The application was dismissed because Ms Hu did not discharge the onus of showing that it would be unjust to hold her to the undertaking. The undertaking had been given as practical security for Mr Xiao's return to Australia, Mr Xiao had obtained the benefit of travelling but had not returned, there was no satisfactory evidence explaining his failure to return or showing that the undertaking had no ongoing utility, and releasing Ms Hu would defeat the regime established to support his return.

Court Disposition

Application dismissed with costs

Orders

  • ['The interlocutory process filed 15 June 2012 be dismissed with costs.']