ASIC v Elm Financial Services Pty Ltd & Ors [2005] NSWSC 1020

ASIC v Elm Financial Services Pty Ltd & Ors [2005] NSWSC 1020

On the evidence of agreed facts, Mr Terracini and Mr Young each contravened various provisions of the Corporations Act relating to financial product disclosure, misleading conduct, and director duties, and failed to prevent company contraventions. The consented orders for declarations of contravention and periods of disqualification (seven years for Terracini, five years for Young) are appropriate, reflecting their culpability and the necessity for protection of the public and deterrence.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Elm Financial Services Pty Ltd; Ninth Defendant: Andrew Terracini; Twelfth Defendant: Howard Young
Jurisdiction
Australia
Judgment Date
11 October 2005
Procedural Posture
Corporations Civil Penalty Application / Judgment Following Applications for Consent Orders and Declarations
Outcome
Declarations of contravention and disqualification orders made by consent; proceedings against Mr Terracini and Mr Young dismissed as against them; parties to bear their own costs; undertakings noted and accepted.
Legal Topics
Declarations of Contravention, Consent Orders, Officer Disqualification, Investor Protection, Breach of Statutory Duties
Corporations Law Commercial Law Declarations of Contravention Consent Orders Officer Disqualification Investor Protection Breach of Statutory Duties

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Parties

Australian Securities and Investments Commission

Plaintiff

Elm Financial Services Pty Ltd

First Defendant

Andrew Terracini

Ninth Defendant

Howard Young

Twelfth Defendant

Procedural Posture

Corporations Civil Penalty Application / Judgment Following Applications for Consent Orders and Declarations

Legal Issues

  1. 1 Whether the agreed facts warrant making declarations of contravention under the Corporations Act 2001
  2. 2 Whether the periods of disqualification agreed between ASIC and the defendants are appropriate penalties
  3. 3 Whether the court should accept the parties' agreement as to penalty and orders

Ratio Decidendi

On the evidence of agreed facts, Mr Terracini and Mr Young each contravened various provisions of the Corporations Act relating to financial product disclosure, misleading conduct, and director duties, and failed to prevent company contraventions. The consented orders for declarations of contravention and periods of disqualification (seven years for Terracini, five years for Young) are appropriate, reflecting their culpability and the necessity for protection of the public and deterrence.

Court Disposition

Declarations of contravention and disqualification orders made by consent; proceedings against Mr Terracini and Mr Young dismissed as against them; parties to bear their own costs; undertakings noted and accepted.

Orders

  • Mr Terracini disqualified from managing corporations for seven years pursuant to ss.206C(1) and 206E(1) of the Corporations Act
  • Mr Young disqualified from managing corporations for five years pursuant to ss.206C(1) and 206E(1) of the Corporations Act