Australian Securities and Investments Commission v Cross & Ors [2007] QSC 185

1 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION [2007] QSC 185 FRYBERG J No 3208 of 2005 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant and WAYNE EDWARD CROSS AND ORS Respondents BRISBANE ..DATE 19/07/2007 ORDER -- 1 of 4 -- 19072007 T(2)16-18/CAS(BNE) M/T BRIS05 (Fryberg J) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application by John Patrick Cronin the receiver and manager appointed by the Court to wind up a managed investments scheme, the respondents to the application being five in number. The matter has proceeded well down the track. The Court ordered the scheme be wound up on the 23rd November 2005 and appointed Mr Cronin a receiver and manager for the purpose of winding up the schemes which were the subject of the principal application. The evidence before me today discloses that Mr Cronin has done what he was appointed to do. He has already declared one dividend and paid it. The application before me today seeks orders that Mr Cronin can declare and distribute a second and final dividend in the winding up of the schemes to the creditors of the schemes whose debts or claims have been admitted and a direction that Mr Cronin pay all dividends received from AMP in respect of shares held by the first respondent to the first respondent. The applicant has requested that I not deal with the second of those orders today. Apparently it is envisaged that a further application will be made at a subsequent time to deal with that matter. The only matter then that is to be dealt with today is whether I should make orders, which according to the draft handed to me, direct that Mr Cronin can declare and distribute a second and final dividend to creditors whose claims have been admitted. The order which appointed Mr Cronin as the receiver was made by Justice Atkinson on the 23rd of November 2005. By paragraph five of that order it was ordered, -- 2 of 4 -- 19072007 T(2)16-18/CAS(BNE) M/T BRIS05 (Fryberg J) 3 ORDER 1 10 20 30 40 50 60 "In the winding up of the schemes division 6 of part 5.6 of the Corporations Act 2001 and Regulations 5.6.39 through 5.6.74 of the Corporations Regulations 2001 shall apply so far as are relevant." Regulation 5.6.67 provides that a liquidator must, as soon as practicable, declare and distribute a dividend among the creditors whose debts or claims have been admitted. The receiver had applied to the Court today then to do something which he is already empowered to do. There is, of course, no doubt that a receiver is entitled at any time to apply to the Court for directions if directions be needed in respect of any matter related to the receivership. I inquired if there was any reason to doubt the applicability of the power in Regulation 5.6.67 or any circumstance which led to doubt about the propriety of the receiver proceeding to make the payment to declare and distribute the dividend proposed. I was told that there was none and that the application has been made simply out of erring on the side of caution. With the utmost respect to those who have brought the application, it seems to me that this is a quite unnecessary waste of money which is likely to deplete the resources available to creditors. The receiver has power to do what he asks the Court to direct that he do. There is no reason to doubt the existence of the power or the propriety of its exercise on the material before me. No reason has been shown why the time and trouble of solicitors and the receiver should -- 3 of 4 -- 19072007 T(2)16-18/CAS(BNE) M/T BRIS05 (Fryberg J) 4 ORDER 1 10 20 30 40 50 60 be taken up in coming to the Court and the expense of that exercise be incurred. The order is quite unnecessary. The application for it should not have been made. Consequently. I am not prepared to make it. Consequently, the order I propose is that the application be dismissed. In doing so I reiterate the point that it is dismissed simply because it is unnecessary. ----- -- 4 of 4 --