Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) [2013] FCA 74

Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) [2013] FCA 74

It is premature to decide the application before related Supreme Court proceedings regarding document production are resolved, and before Director Defendants better specify the categories of documents relevant to the Compensation Proceeding; preliminary view is that modification may be justified if documents are adequately identified by broad category, balancing efficiency, cost, and prejudice.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Australian Property Custodian Holdings Limited ACN 095 474 436 (Receivers and Managers appointed) (in liquidation) (Controllers appointed); Second Defendant: William Lionel Lewski; Third Defendant: Mark Frederick Butler; Fourth Defendant: Kim Jaques; Fifth Defendant: Michael Richard Lewis Wooldridge; Sixth Defendant: Peter Clarke
Jurisdiction
Australia
Judgment Date
12 February 2013
Procedural Posture
Application for Modification of Implied Undertaking in Civil Penalty Proceeding / Interlocutory Application – Adjournment With Preliminary Views Provided
Outcome
Application adjourned
Legal Topics
Discovery, Implied Undertaking, Release From Implied Undertaking, Modification of Implied Undertakings, Special Circumstances
Civil Procedure Discovery Implied Undertaking Release From Implied Undertaking Modification of Implied Undertakings Special Circumstances

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Parties

Australian Securities and Investments Commission

Plaintiff

Australian Property Custodian Holdings Limited ACN 095 474 436 (Receivers and Managers appointed) (in liquidation) (Controllers appointed)

First Defendant

William Lionel Lewski

Second Defendant

Mark Frederick Butler

Third Defendant

Kim Jaques

Fourth Defendant

Michael Richard Lewis Wooldridge

Fifth Defendant

Peter Clarke

Sixth Defendant

Procedural Posture

Application for Modification of Implied Undertaking in Civil Penalty Proceeding / Interlocutory Application – Adjournment With Preliminary Views Provided

Legal Issues

  1. 1 Whether the implied undertaking restricting use of discovered documents should be modified to allow their use in related proceedings
  2. 2 What constitutes 'special circumstances' justifying modification of the implied undertaking
  3. 3 Whether documents and their purposes are sufficiently specified for modification

Ratio Decidendi

It is premature to decide the application before related Supreme Court proceedings regarding document production are resolved, and before Director Defendants better specify the categories of documents relevant to the Compensation Proceeding; preliminary view is that modification may be justified if documents are adequately identified by broad category, balancing efficiency, cost, and prejudice.

Court Disposition

Application adjourned

Orders

  • Application for modification of implied undertaking is adjourned for short period; parties to better specify categories of documents, if resumed.