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Quinlivan v Australian Securities and Investments Commission [2010] FCAFC 161

by Hilary Kincaid 17. January 2011 09:34

Facts

On 11 August 2008, the respondent issued to the appellant a notice pursuant to s 206F(1)(b)(i) of the Corporations Act 2001 (Cth) requiring him to demonstrate why he should not be disqualified from managing corporations (“the Notice”). The Notice related to 15 companies of which the appellant had been an officer. All of those companies had been wound up. Following a hearing, the respondent disqualified the appellant for three years: [2].

 

The appellant sought review of that decision in the Administrative Appeals Tribunal. The Tribunal increased the period of disqualification to five years: [3].

 

Outcome

ASIC’s delay in issuing the Notice is a relevant consideration in determining whether disqualification is justified pursuant to s 206F(1)(c) and (2). However, such delay is a matter relevant merely to the discretion to disqualify rather than to the power to do so: [36].

 

ASIC’s concern about whether companies with which the person issued with a s 206F(1)(b)(i) notice is an officer of are related can form an acceptable basis for delay in issuing that notice: [45].

 

The appellant’s submission that s 206F(2)(a) required the Tribunal to make findings about whether any of the companies referred to in the Notice were related to one another was dismissed in circumstances where:

  • the Tribunal assumed that most, if not all, of the companies in question were related, and
  • such assumption favoured the appellant: [39].

In exercising its discretion pursuant to s 206F to disqualify a person from managing corporations, ASIC may take into account a wide range of matters, not limited to the content of the notice issued pursuant to s 206F(1)(b)(i): [41].

 

Relevant paragraphs of Ford

[3.300], [4.320] and [7.191]

Tags:

Ford's Principles of Corporations Law



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