Australian Securities and Investments Commission v Sherwin Financial Planners Pty Ltd [2015] FCA 1168

Australian Securities and Investments Commission v Sherwin Financial Planners Pty Ltd [2015] FCA 1168

The application by Mr Sherwin caused ASIC to incur unnecessary legal costs by omitting full and frank disclosure of his financial circumstances. The material in support was substantially inaccurate by omission. ASIC was put to costs that ought never to have been incurred. In such circumstances, indemnity costs are appropriate to provide greater compensation than standard costs.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Sherwin Financial Planners Pty Ltd ACN 010 675 260; Second Defendant: Bradley Thomas Sherwin; Third Defendant: Deborah Bernadette Sherwin; Fourth Defendant: DIY Superannuation Services Pty Ltd ACN 083 416 915; Fifth Defendant: Reacroft Pty Ltd ACN 077 117 116; Sixth Defendant: Blue Diamond Investments Pty Ltd ACN 134 292 265; Seventh Defendant: SP Property Pty Ltd ACN 121 296 053; Eighth Defendant: Astor Funds Pty Ltd ACN 108 355 406; Ninth Defendant: Sherwin Financial Services Pty Ltd ACN 094 135 672; Tenth Defendant: Wickham Capital Pty Ltd ACN 115 086 970; Eleventh Defendant: Brothers Financial Services Pty Ltd ACN 090 058 656; Twelfth Defendant: NRL Financial Services Pty Ltd ACN 132 370 079; Thirteenth Defendant: Sunshine Regional Investments Pty Ltd ACN 141 159 159; Fourteenth Defendant: Garth Peter Robertson; Fifteenth Defendant: Catherine Louise Robertson
Jurisdiction
Australia
Judgment Date
30 October 2015
Procedural Posture
Corporations Interlocutory Application / Costs Determination Following Dismissal of Interlocutory Application
Outcome
Interlocutory application dismissed; Plaintiff awarded indemnity costs; affidavits ordered unsealed.
Legal Topics
Indemnity Costs, Interlocutory Applications, Asset Freezing Orders, Disclosure Obligations, Affidavit Sealing
Corporations Law Civil Procedure Indemnity Costs Interlocutory Applications Asset Freezing Orders Disclosure Obligations Affidavit Sealing

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Parties

Australian Securities and Investments Commission

Plaintiff

Sherwin Financial Planners Pty Ltd ACN 010 675 260

First Defendant

Bradley Thomas Sherwin

Second Defendant

Deborah Bernadette Sherwin

Third Defendant

DIY Superannuation Services Pty Ltd ACN 083 416 915

Fourth Defendant

Reacroft Pty Ltd ACN 077 117 116

Fifth Defendant

Blue Diamond Investments Pty Ltd ACN 134 292 265

Sixth Defendant

SP Property Pty Ltd ACN 121 296 053

Seventh Defendant

Astor Funds Pty Ltd ACN 108 355 406

Eighth Defendant

Sherwin Financial Services Pty Ltd ACN 094 135 672

Ninth Defendant

Wickham Capital Pty Ltd ACN 115 086 970

Tenth Defendant

Brothers Financial Services Pty Ltd ACN 090 058 656

Eleventh Defendant

NRL Financial Services Pty Ltd ACN 132 370 079

Twelfth Defendant

Sunshine Regional Investments Pty Ltd ACN 141 159 159

Thirteenth Defendant

Garth Peter Robertson

Fourteenth Defendant

Catherine Louise Robertson

Fifteenth Defendant

Procedural Posture

Corporations Interlocutory Application / Costs Determination Following Dismissal of Interlocutory Application

Legal Issues

  1. 1 Should costs of and incidental to the interlocutory application be paid by the applicant and on an indemnity basis?
  2. 2 Should the affidavits filed in support of the interlocutory application remain sealed?

Ratio Decidendi

The application by Mr Sherwin caused ASIC to incur unnecessary legal costs by omitting full and frank disclosure of his financial circumstances. The material in support was substantially inaccurate by omission. ASIC was put to costs that ought never to have been incurred. In such circumstances, indemnity costs are appropriate to provide greater compensation than standard costs.

Court Disposition

Interlocutory application dismissed; Plaintiff awarded indemnity costs; affidavits ordered unsealed.

Orders

  • The affidavits of Bradley Thomas Sherwin filed on 5 June 2015 and 31 July 2015 sealed by order of the Court made on 31 July 2015 be un-sealed.
  • The costs incurred by the plaintiff of and incidental to the interlocutory application filed by Bradley Thomas Sherwin on 5 June 2015 and dismissed by order of the Court made on 31 July 2015, be paid by Bradley Thomas Sherwin.