Australian Securities & Investments Commission; In the matter of Richstar Enterprises Pty Ltd ACN 099 071 968 v Carey (No 22) [2008] FCA 392

Australian Securities & Investments Commission; In the matter of Richstar Enterprises Pty Ltd ACN 099 071 968 v Carey (No 22) [2008] FCA 392

The $4,000 weekly allowance had been in place for about two years, had been negotiated with the receivers, was supported by uncontradicted evidence of ongoing and increased living expenses including rent, school fees and child support, and ASIC made no submission that continuation would compromise the protective...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 March 2008
Procedural Posture
Corporations Act 2001 (cth) S 1323 Asset Preservation Undertaking Allowance Determination / Reasons for Judgment on Authorised Living Allowance Following Acceptance of Undertakings
Outcome
Weekly allowance continued at the existing rate.
Legal Topics
['asset Preservation Orders' 'undertakings in Lieu of Protective Orders' 'authorised Living Expenses' 'interim Orders Under S 1323']
['corporations Law' 'civil Procedure'] ['asset Preservation Orders' 'undertakings in Lieu of Protective Orders' 'authorised Living Expenses' 'interim Orders Under S 1323']

Source-derived case record

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Procedural Posture

Corporations Act 2001 (cth) S 1323 Asset Preservation Undertaking Allowance Determination / Reasons for Judgment on Authorised Living Allowance Following Acceptance of Undertakings

Legal Issues

  1. 1 ["Whether the weekly allowance for ordinary living expenses under paragraph 7 of Mr Carey's undertaking should continue at $4,000 per week until 30 June 2008." 'Whether the allowance was at such a level that it would significantly undermine the purpose of protecting affected assets during the remaining period of the undertaking.' "How to balance Mr Carey's private needs and property rights against the public interest purpose of asset preservation under s 1323 of the Corporations Act 2001 (Cth)."]

Ratio Decidendi

The $4,000 weekly allowance had been in place for about two years, had been negotiated with the receivers, was supported by uncontradicted evidence of ongoing and increased living expenses including rent, school fees and child support, and ASIC made no submission that continuation would compromise the protective purpose of the undertakings. Given the short remaining period until 30 June 2008, the allowance was not at a level that would significantly undermine asset protection, so it should continue.

Court Disposition

Weekly allowance continued at the existing rate.

Orders

  • ['The maximum weekly allowance fixed in respect of paragraph 7 of the undertaking proffered by the first defendant be continued at $4,000 per week until the expiry of the undertaking on 30 June 2008.']