ASIC v Burnard & Ors [2006] NSWSC 611

ASIC v Burnard & Ors [2006] NSWSC 611

ASIC had shown enough to warrant further investigation and limited protection against frustration of that investigation, including continued restraints against Mr Burnard and the Second Defendant for a short period. However, because ASIC alleged no wrongdoing, the Defendants had cooperated, the investigation was preliminary, and there was insufficient evidence against the Third Defendant, the Court refused more intrusive relief such as receivership, provisional liquidation, a general law Mareva order against the Third Defendant, and asset disclosure affidavits.

Jurisdiction
Australia
Judgment Date
13 June 2006
Procedural Posture
Application by ASIC for Continuation of Asset Preservation and Travel Restraint Orders Under S.1323 and S.1324 of the Corporations Act 2001 (cth) and the Court's Inherent Jurisdiction / Interlocutory Application Following Ex Parte Orders Made on 2 June 2006; Ex Tempore Judgments on 13 and 14 June 2006
Outcome
Orders continued for a short time to enable ASIC to investigate further and report to the Court; additional relief refused in part.
Legal Topics
['asset Freezing Orders' 'asic Investigations' 'passport Surrender Orders' 'mareva Injunctions' 'receivers and Provisional Liquidators' 'privilege Against Self Incrimination and Exposure to Civil Penalty']
['corporations Law' 'equity' 'civil Procedure'] ['asset Freezing Orders' 'asic Investigations' 'passport Surrender Orders' 'mareva Injunctions' 'receivers and Provisional Liquidators' 'privilege Against Self Incrimination and Exposure to Civil Penalty']

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Procedural Posture

Application by ASIC for Continuation of Asset Preservation and Travel Restraint Orders Under S.1323 and S.1324 of the Corporations Act 2001 (cth) and the Court's Inherent Jurisdiction / Interlocutory Application Following Ex Parte Orders Made on 2 June 2006; Ex Tempore Judgments on 13 and 14 June 2006

Legal Issues

  1. 1 ["Whether asset preservation orders and travel restraints made ex parte should be continued to protect ASIC's preliminary investigation into possible contraventions of the Corporations Act 2001 (Cth) and general law" "Whether ASIC should obtain additional relief by way of appointment of a receiver to Mr Burnard's property or a provisional liquidator to the Second Defendant" 'Whether an asset preservation order should continue or be granted against the Third Defendant under the general law' 'Whether the Defendants should be required to provide affidavit disclosure of their assets and bank accounts despite no positive allegation of wrongdoing']

Ratio Decidendi

ASIC had shown enough to warrant further investigation and limited protection against frustration of that investigation, including continued restraints against Mr Burnard and the Second Defendant for a short period. However, because ASIC alleged no wrongdoing, the Defendants had cooperated, the investigation was preliminary, and there was insufficient evidence against the Third Defendant, the Court refused more intrusive relief such as receivership, provisional liquidation, a general law Mareva order against the Third Defendant, and asset disclosure affidavits.

Court Disposition

Orders continued for a short time to enable ASIC to investigate further and report to the Court; additional relief refused in part.

Orders

  • ['Asset preservation orders against Neil Austin Burnard and the Second Defendant were continued for a limited time, with liberty for the parties to formulate Short Minutes of Order for release of funds for legal and living expenses and ancillary matters.' 'Orders in paragraphs 8 to 11 of the orders made on 2 June...