ASIC v Adler & 4 Ors [2002] NSWSC 510

ASIC v Adler & 4 Ors [2002] NSWSC 510

The requested variations were refused because the First and Fourth Defendants provided no affidavit evidence capable of being tested to justify either a lengthy transition period allowing Mr Adler to communicate management instructions or wishes, or an instalment regime amounting to an effective stay of compensation and penalty orders without full security. The proposed communication power would undermine the public protective purpose of the disqualification order, and the proposed security of about $4 million was not shown to be adequate against compensation and penalty orders of about $9 million plus costs. A short stay only was appropriate to permit any application to the Court of Appeal.

Jurisdiction
Australia
Judgment Date
06 June 2002
Procedural Posture
Corporations Proceeding Concerning Stay or Variation of Orders for Disqualification, Compensation and Pecuniary Penalties Under the Corporations Act / Application by the First and Fourth Defendants to Vary Foreshadowed Orders, With a Short Stay to Allow Application to the Court of Appeal
Outcome
Short stay only allowed to accommodate application to the Court of Appeal; requested variations refused.
Legal Topics
['stay of Orders' 'variation of Orders' 'disqualification From Managing Corporations' 'compensation Orders' 'pecuniary Penalties' 'appeal to Court of Appeal' 'security for Judgment Debt']
['corporations' 'civil Procedure'] ['stay of Orders' 'variation of Orders' 'disqualification From Managing Corporations' 'compensation Orders' 'pecuniary Penalties' 'appeal to Court of Appeal' 'security for Judgment Debt']

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Procedural Posture

Corporations Proceeding Concerning Stay or Variation of Orders for Disqualification, Compensation and Pecuniary Penalties Under the Corporations Act / Application by the First and Fourth Defendants to Vary Foreshadowed Orders, With a Short Stay to Allow Application to the Court of Appeal

Legal Issues

  1. 1 ['Whether the disqualification order should be varied or stayed to permit Mr Adler to communicate instructions or wishes to the directors of Adler Corporation Pty Ltd and its wholly owned subsidiaries pending appeal.' 'Whether penalty and compensation orders against Mr Adler and Adler Corporation should effectively be stayed by permitting payment by instalments over six months.' 'Whether the First and Fourth Defendants provided sufficient evidence and security to justify the requested variations or stay.']

Ratio Decidendi

The requested variations were refused because the First and Fourth Defendants provided no affidavit evidence capable of being tested to justify either a lengthy transition period allowing Mr Adler to communicate management instructions or wishes, or an instalment regime amounting to an effective stay of compensation and penalty orders without full security. The proposed communication power would undermine the public protective purpose of the disqualification order, and the proposed security of about $4 million was not shown to be adequate against compensation and penalty orders of about $9 million plus costs. A short stay only was appropriate to permit any application to the Court of Appeal.

Court Disposition

Short stay only allowed to accommodate application to the Court of Appeal; requested variations refused.

Orders

  • ['Orders for disqualification from management, compensation and penalties under the Corporations Act were made on 6 June 2002 in conformity with the judgments on liability and relief.' 'The orders were stayed until 3 July 2002 to allow the Defendants to apply to the Court of Appeal for any further stay or...