ASIC v Burke [2000] NSWSC 694

ASIC v Burke [2000] NSWSC 694

The Court held that the seriousness of the circumstances, including evidence suggesting unlicensed activity and possible misappropriation of investor funds, justified restraining the first defendant from leaving Australia. Existing Mareva orders were not sufficient because there was real doubt about the existence and location of assets and the identity and claims of investors, and the defendants' business activities required assets to be turned over; the advantages of receivership in identifying, preserving and getting in assets outweighed its cost.

Jurisdiction
Australia
Judgment Date
10 July 2000
Procedural Posture
Application for Interlocutory Relief in Proceedings Alleging Contraventions of the Corporations Law / Interlocutory Application to Extend and Modify Ex Parte Orders and Seek Orders Restraining the First Defendant From Leaving Australia and Appointing Receivers
Outcome
Receiver appointed; interlocutory orders made.
Legal Topics
['unlicensed Dealing in Securities' 'unlicensed Investment Advice Business' 'unlicensed Managed Investment Scheme' 'mareva Orders' 'appointment of Receivers' 'asset Preservation' 'travel Restraint']
['corporations' 'equity' 'civil Procedure'] ['unlicensed Dealing in Securities' 'unlicensed Investment Advice Business' 'unlicensed Managed Investment Scheme' 'mareva Orders' 'appointment of Receivers' 'asset Preservation' 'travel Restraint']

Case Brief

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Procedural Posture

Application for Interlocutory Relief in Proceedings Alleging Contraventions of the Corporations Law / Interlocutory Application to Extend and Modify Ex Parte Orders and Seek Orders Restraining the First Defendant From Leaving Australia and Appointing Receivers

Legal Issues

  1. 1 ['Whether the first defendant should be prohibited from leaving Australia and required to deliver up his passport and travel documents.' "Whether receivers should be appointed over the first defendant's property and receivers and managers appointed over the property and businesses of the second to sixth defendants despite existing Mareva orders." 'Whether the circumstances justified receivership to identify, preserve and get in assets for investors.']

Ratio Decidendi

The Court held that the seriousness of the circumstances, including evidence suggesting unlicensed activity and possible misappropriation of investor funds, justified restraining the first defendant from leaving Australia. Existing Mareva orders were not sufficient because there was real doubt about the existence and location of assets and the identity and claims of investors, and the defendants' business activities required assets to be turned over; the advantages of receivership in identifying, preserving and getting in assets outweighed its cost.

Court Disposition

Receiver appointed; interlocutory orders made.

Orders

  • ['Orders made in terms of paragraphs A1 to A16 of the amended originating process filed on 10 July 2000, as amended in the manner previously recorded in the transcript.' 'The first defendant was to be prohibited from leaving Australia without the consent of the Court and required to deliver up his passport and any...