Australian Securities & Investments Commission; in the Matter of Richstar Enterprises Pty Ltd ACN (099 071 968) v Carey (No 19) [2008] FCA 38

Australian Securities & Investments Commission; in the Matter of Richstar Enterprises Pty Ltd ACN (099 071 968) v Carey (No 19) [2008] FCA 38

ASIC did not establish any imminent risk of flight or imminent disruption to its investigations, and its evidence about ongoing investigations and possible prosecutions was too general and uncertain to justify continuing travel restraint orders that had been in place for nearly two years. However, given the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 January 2008
Procedural Posture
Corporations Proceeding Concerning ASIC Investigations, Asset Preservation Orders and Travel Restraint Orders / Interlocutory Motion by ASIC to Continue Travel Restraint Orders or Alternatively Require Travel Reporting Orders
Outcome
Travel restraint orders against the first and second defendants were discharged, but each was required to give ASIC 14 days prior written notice before departing Australia until midnight on 12 March 2008; no order as to costs.
Legal Topics
['asic Investigations' 'asset Preservation Orders' 'travel Restraint Orders' 'section 1323 Corporations Act Orders' 'freedom of Movement' 'prior Notice of Overseas Travel']
['corporations' 'civil Procedure'] ['asic Investigations' 'asset Preservation Orders' 'travel Restraint Orders' 'section 1323 Corporations Act Orders' 'freedom of Movement' 'prior Notice of Overseas Travel']

Source-derived case record

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Procedural Posture

Corporations Proceeding Concerning ASIC Investigations, Asset Preservation Orders and Travel Restraint Orders / Interlocutory Motion by ASIC to Continue Travel Restraint Orders or Alternatively Require Travel Reporting Orders

Legal Issues

  1. 1 ['Whether travel restraint orders preventing the first and second defendants from leaving Australia should be continued under s 1323 of the Corporations Act 2001 (Cth).' 'Whether, if travel restraint orders were not continued, the first and second defendants should be required to give prior notice to ASIC of any intended overseas travel.']

Ratio Decidendi

ASIC did not establish any imminent risk of flight or imminent disruption to its investigations, and its evidence about ongoing investigations and possible prosecutions was too general and uncertain to justify continuing travel restraint orders that had been in place for nearly two years. However, given the complexity and significance of the ongoing investigations and the defendants' central involvement in the Westpoint collapse, it was reasonable to require 14 days prior written notice of intended overseas travel for the duration of the general orders.

Court Disposition

Travel restraint orders against the first and second defendants were discharged, but each was required to give ASIC 14 days prior written notice before departing Australia until midnight on 12 March 2008; no order as to costs.

Orders

  • ['The restraint orders made against the defendant be discharged.' "The defendant shall not depart from Australia without giving fourteen (14) days prior written notice to the Australian Securities and Investments Commission, such notice to specify: the place or places to which the defendant is intending to travel...