Australian Securities and Investments Commission v Tzouvelis [2023] FCA 431

Australian Securities and Investments Commission v Tzouvelis [2023] FCA 431

ASIC established a prima facie case that the respondents acted with improper purpose both by diverting assets from Golden Financial to Premium so as to minimise assets available for payment of a pecuniary penalty, and by causing the submission of misleading evidence/written submissions about Golden Financial's financial position in penalty proceedings. Inspection of privileged documents is warranted and a referee should report on the relevant questions.

Parties
Applicant: Australian Securities and Investments Commission; First Respondent: Antonios Tzouvelis; Second Respondent: Golden Financial Group Pty Ltd (ACN 128 837 285); Third Respondent: Premium Client Services Australia Pty Ltd (ACN 168 246 437); Fourth Respondent: iProsper Financial Planning Pty Ltd (ACN 609 115 415)
Jurisdiction
Australia
Judgment Date
09 May 2023
Procedural Posture
Originating Application Seeking Declarations / Interlocutory; Orders Appointing Referee and Reserving Costs
Outcome
Orders made; referee appointed to report on privilege claims; further hearing adjourned; costs reserved
Legal Topics
Legal Professional Privilege, Fraud Exception, Asset Transfer, Civil Penalty Proceedings, Misleading Evidence, Privilege Inspection
Corporations Law Commercial Law Legal Professional Privilege Fraud Exception Asset Transfer Civil Penalty Proceedings Misleading Evidence Privilege Inspection

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Parties

Australian Securities and Investments Commission

Applicant

Antonios Tzouvelis

First Respondent

Golden Financial Group Pty Ltd (ACN 128 837 285)

Second Respondent

Premium Client Services Australia Pty Ltd (ACN 168 246 437)

Third Respondent

iProsper Financial Planning Pty Ltd (ACN 609 115 415)

Fourth Respondent

Procedural Posture

Originating Application Seeking Declarations / Interlocutory; Orders Appointing Referee and Reserving Costs

Legal Issues

  1. 1 Whether documents over which legal professional privilege is claimed fall within the fraud/illegal purpose exception
  2. 2 Whether alleged asset transfers were effected with improper purpose to defeat penalty claims
  3. 3 Whether evidence and submissions were misleading as to financial position in penalty phase

Ratio Decidendi

ASIC established a prima facie case that the respondents acted with improper purpose both by diverting assets from Golden Financial to Premium so as to minimise assets available for payment of a pecuniary penalty, and by causing the submission of misleading evidence/written submissions about Golden Financial's financial position in penalty proceedings. Inspection of privileged documents is warranted and a referee should report on the relevant questions.

Court Disposition

Orders made; referee appointed to report on privilege claims; further hearing adjourned; costs reserved

Orders

  • Senior National Judicial Registrar Legge appointed referee under s 54A of Federal Court of Australia Act 1976 (Cth) to inquire and report on whether documents over which the first respondent claims privilege contain or evidence communications in furtherance of improper purpose (as specified).
  • Solicitors for respondents to provide confidential electronic copies of documents in exhibit YH-4 (affidavit of Yu-chiao Hsueh, 7 December 2022) to referee by 16 May 2023.