ASIC v Elm Financial Services Pty Ltd & Ors [2005] NSWSC 1033

ASIC v Elm Financial Services Pty Ltd & Ors [2005] NSWSC 1033

Agreed facts demonstrated that Mr Kay, as an officer/director, failed to take reasonable steps to prevent contraventions by group companies of investor protection provisions in the Corporations Act, thereby contravening ss.180(1) and 181(1). Court was satisfied statutory conditions for declarations and disqualification were met and made orders by consent.

Parties
Plaintiff: Australian Securities and Investments Commission; Eleventh Defendant: Robert John Kay
Jurisdiction
Australia
Judgment Date
13 October 2005
Procedural Posture
Corporations Proceeding / Judgment on Consent Declarations and Disqualification Order
Outcome
Declarations of contravention and disqualification order made by consent; undertaking accepted; proceedings between ASIC and Mr Kay dismissed; costs to be paid individually; prior orders set aside.
Legal Topics
Director's Duties, Contravention Declarations, Disqualification Order, Investor Protection Provisions, Undertakings to ASIC
Corporations Law Director's Duties Contravention Declarations Disqualification Order Investor Protection Provisions Undertakings to ASIC

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Parties

Australian Securities and Investments Commission

Plaintiff

Robert John Kay

Eleventh Defendant

Procedural Posture

Corporations Proceeding / Judgment on Consent Declarations and Disqualification Order

Legal Issues

  1. 1 Whether Mr Kay contravened ss.180(1) and 181(1) of the Corporations Act by failing to prevent company contraventions
  2. 2 Whether court should make declarations of contravention and orders by consent

Ratio Decidendi

Agreed facts demonstrated that Mr Kay, as an officer/director, failed to take reasonable steps to prevent contraventions by group companies of investor protection provisions in the Corporations Act, thereby contravening ss.180(1) and 181(1). Court was satisfied statutory conditions for declarations and disqualification were met and made orders by consent.

Court Disposition

Declarations of contravention and disqualification order made by consent; undertaking accepted; proceedings between ASIC and Mr Kay dismissed; costs to be paid individually; prior orders set aside.

Orders

  • Declarations that Robert John Kay breached director's duties under ss.180(1) and 181(1) of the Corporations Act with respect to various group companies
  • Disqualification of Robert John Kay from managing corporations for five years under ss.206C(1), 206D(1), and 206E(1)