ASIC v Krecichwost & Ors [2007] NSWSC 948

ASIC v Krecichwost & Ors [2007] NSWSC 948

Although evidence of risk of dissipation is low and the positive case for insolvent trading is not yet strong, given the large amounts at stake, early stage of investigation, need to protect aggrieved persons, and statutory purpose of s1323, it is desirable to grant a less intrusive asset preservation order...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 August 2007
Procedural Posture
Corporations Proceedings (asset Preservation/interlocutory) / Interlocutory Application for Receivership or Freezing Orders
Outcome
Freezing orders granted (for two months, liberty to apply); no receivers appointed; disclosure orders reserved; no order as to costs (by consent).
Legal Topics
['asset Preservation' 'freezing Orders' 'receivership' 'insolvent Trading' 'disclosure Orders']
['corporations' 'equity'] ['asset Preservation' 'freezing Orders' 'receivership' 'insolvent Trading' 'disclosure Orders']

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Procedural Posture

Corporations Proceedings (asset Preservation/interlocutory) / Interlocutory Application for Receivership or Freezing Orders

Legal Issues

  1. 1 ['Whether court has power under Corporations Act s1323 to grant freezing orders.' 'Whether appointment of receiver is necessary or desirable for protection of aggrieved persons under s1323.' 'Assessment of risk of dissipation of assets justifying asset preservation orders.' 'Adequacy of protection against self-incrimination in disclosure orders.']

Ratio Decidendi

Although evidence of risk of dissipation is low and the positive case for insolvent trading is not yet strong, given the large amounts at stake, early stage of investigation, need to protect aggrieved persons, and statutory purpose of s1323, it is desirable to grant a less intrusive asset preservation order (freezing order) to the assets of Messrs Stubbs and Byers instead of appointing a receiver.

Court Disposition

Freezing orders granted (for two months, liberty to apply); no receivers appointed; disclosure orders reserved; no order as to costs (by consent).

Orders

  • ['Freezing order as per paragraphs 3 (as amended), 6 to 9 of short minutes of order dated 14 August 2007.' 'Liberty to apply in chambers with respect to disclosure order.' 'No order as to costs (by consent).']