Australian Securities and Investments Commission v CME Capital Australia Pty Ltd, in the matter of CME Capital Australia Pty Ltd (No 3) [2016] FCA 545

Australian Securities and Investments Commission v CME Capital Australia Pty Ltd, in the matter of CME Capital Australia Pty Ltd (No 3) [2016] FCA 545

The Court found there were sufficient circumstances, including ongoing ASIC investigations, the insolvency and mismanagement of the companies, and potential claims by investors, to justify extending the travel restriction orders for three months and the asset restraint orders for one month, with a carve-out allowing the sixth defendant short-term overseas travel for business. The interests of investors outweighed the inconvenience to the defendants, but a tailored approach was taken to balance fairness.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: CME Capital Australia Pty Ltd; Second Defendant: Boston Pacific Capital Australia Pty Ltd; Third Defendant: GKN Capital Pty Ltd; Fourth Defendant: Boston Pacific Capital Pty Ltd; Fifth Defendant: IMCG Pty Ltd; Sixth Defendant: Michael Petrou; Seventh Defendant: Branislav Grujicic; Eighth Defendant: Loma Estate Pty Ltd; Ninth Defendant: Berkshire NWI Invest LLC; Tenth Defendant: Australia and New Zealand Banking Group Ltd; Eleventh Defendant: Commonwealth Bank of Australia Limited; Twelfth Defendant: Saxo Capital Markets (Australia) Pty Ltd; Thirteenth Defendant: IG Markets Limited
Jurisdiction
Australia
Judgment Date
31 May 2016
Procedural Posture
Corporations Act Proceedings Interim Orders and Asset Preservation / Interlocutory Application for Extension of Interim Orders
Outcome
Interim travel restriction orders on Sixth and Seventh Defendants extended for three months (with exception for short-term travel by Sixth Defendant); asset restraint orders extended for one month; further orders as set out.
Legal Topics
ASIC Investigations, Asset Restraint, Travel Restriction Orders, Provisional Liquidation, Managed Investment Schemes
Corporations Law ASIC Investigations Asset Restraint Travel Restriction Orders Provisional Liquidation Managed Investment Schemes

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Parties

Australian Securities and Investments Commission

Plaintiff

CME Capital Australia Pty Ltd

First Defendant

Boston Pacific Capital Australia Pty Ltd

Second Defendant

GKN Capital Pty Ltd

Third Defendant

Boston Pacific Capital Pty Ltd

Fourth Defendant

IMCG Pty Ltd

Fifth Defendant

Michael Petrou

Sixth Defendant

Branislav Grujicic

Seventh Defendant

Loma Estate Pty Ltd

Eighth Defendant

Berkshire NWI Invest LLC

Ninth Defendant

Australia and New Zealand Banking Group Ltd

Tenth Defendant

Commonwealth Bank of Australia Limited

Eleventh Defendant

Saxo Capital Markets (Australia) Pty Ltd

Twelfth Defendant

IG Markets Limited

Thirteenth Defendant

Procedural Posture

Corporations Act Proceedings Interim Orders and Asset Preservation / Interlocutory Application for Extension of Interim Orders

Legal Issues

  1. 1 Whether interim travel restriction orders on defendants should be extended
  2. 2 Whether asset restraint orders should be extended

Ratio Decidendi

The Court found there were sufficient circumstances, including ongoing ASIC investigations, the insolvency and mismanagement of the companies, and potential claims by investors, to justify extending the travel restriction orders for three months and the asset restraint orders for one month, with a carve-out allowing the sixth defendant short-term overseas travel for business. The interests of investors outweighed the inconvenience to the defendants, but a tailored approach was taken to balance fairness.

Court Disposition

Interim travel restriction orders on Sixth and Seventh Defendants extended for three months (with exception for short-term travel by Sixth Defendant); asset restraint orders extended for one month; further orders as set out.

Orders

  • Previous orders vacated and replaced.
  • Asset restraint orders imposed on certain defendants until 16 June 2016.