Australian Securities Commission v Cook & Anor [1992] QSC 117

· ('! ( TR..AJ~SCRIPT OF PROCEEDINGS Sute Reporting Bu..--eau, 4th Floor, The Law Courts, George Street, BRlSBANE. 0. 4000 Tel. (07) .227.4360 (Copyright in this transcript is vested in the Cro'Wil. Copies thereof must not be made or sold without the wrinen authority of the Director, State Reporting Bureau.) FlEYISEO COPIES !SS·UE;···; ~(;.__ ~ .J Court Reporting Bureau I I • Cafe·3/ 1 ~ /. . z .3 3 1 ~- ' . - -..,} ... :_'t-~--~J . SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J 1 -- 1 of 7 -- -- -- -- --- ,/ 1 .:1- Writ No 103 of 1991 AUSTRALIAN SECURITIES COMMISSION Plaintiff and GLOBE SECURITIES LIMITED Defendant 10 10 Writ No 104 of 1991 AUSTRALIAN SECURITIES COMMISSION Plaintiff and CITIZEN FINANCE LIMITED Defendant 20 20 Writ No 105 of 1991 0 AUSTRALIAN SECURITIES COMMISSION Plaintiff and FSM PTY LIMITED Defendant 0 30 Writ No 106 of 1991 30 AUSTRALIAN SECURITIES COMMISSION Plaintiff and SANCORP FINANCIAL SERVICES PTY LIMITED Defendant () 40 Writ No 107 of 1991 40 AUSTRALIAN SECURITIES COMMISSION Plaintiff and 0 FERNGUARD PTY LIMITED Defendant Writ No 108 of 1991 50 50 AUSTRALIAN SECURITIES COMMISSION Plaintiff and PHOENIX INVESTMENT CORPORATION LIMITED Defendant 60 60 Govt. Printer, Qld. 2 -- 2 of 7 -- Writ No 109 of 1991 AUSTRALIAN SECURITIES COMMISSION Plaintiff and ANNUTECH PTY LTD Defendant 10 10 Writ No 110 of 1991 AUSTRALIAN SECURITIES COMMISSION Plaintiff and LAWFORD INVESTMENTS PTY LTD Defendant 20 Writ No 111 of 1991 20 ( / '\ " AUSTRALIAN SECURITIES COMMISSION Plaintiff and ' / PORTFOLIO NOMINEES PTY LTD Defendant \, Writ No 112 of 1991 30 30 AUSTRALIAN SECURITIES COMMISSION Plaintiff and CITIZEN PROPERTIES PTY LTD Defendant \ Writ No 116 of 1991' 40 40 JOHN ANGUS REYMENT suing as Administrator of and Trustee of the property of FAMILY SECURITY FRIENDLY SOCIETY Plaintiff and MAXWELL LEONARD COOK and First GLENYCE DEVELLE COOK Defendant 50 and 50 FSM PTY LTD Second Defendant and PORTFOLIO HOLDINGS LTD Third Defendant 60 and 60 Govt. Printer, Qld. 3 -- 3 of 7 -- PORTFOLIO NOMINEES PTY LTD for itse~f and as Trustee for the PORTFOLIO NOMINEES TRUST and the PORTFOLIO NOMINEES OFFICE TRUST and LAWFORD INVESTMENTS PTY LTD for itself 10 and as Trustee for the MAX COOK SETTLEMENT and CITIZEN FINANCE LIMITED and CITIZEN PROPERTIES PTY LTD 20 and GLOBE SECURITIES LTD and SANCORP FINANCIAL SERVICES PTY LTD 30 and FERNGUARD PTY LTD and 40 PHOENIX INVESTMENT CORPORATION PTY LTD and ANNUTECH PTY LTD 50 BRISBANE .. DATE 20/3/92 ORDER 60 Govt. Printer. Qld. 4 Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant EighthDefendant NinthDefendant Tenth Defendant EleventhDefendant TwelfthDefendant ' 1 10 20 0 0 30 (), 40 50 60 -- 4 of 7 -- 10 20 ( \ 30 40 50 60 200392 ORDER HIS HONOUR: This trial has been runrting for two weeks. Despite initial suggestions that the trial might take up to five weeks there has never been- since_the present advisors of the defendants have been involved - any suggestion that the matter would take longer than three weeks. Early in the trial - and my recollection is that it was on the second day - it was indicated that the trial would probably finish today if it ran its course. That estimate was not resiled from, except to the extent that had the evidence proceeded there was some possibility it may have not concluded until Monday. Following indications at an early stage yesterday that the matter may settle, negotiations have been carried on over an extended period and terms of settlement have been executed by all relevant parties. As I was in the act of pronouncing the orders sought, a solicitor from Mallesons, representing Friends Provident, interposed into the proceedings and informed me that Mr Derrington of counsel was on his way to Court to seek a stay of anything that I might do. The basis, Mr Derrington tells me, of his desire to appear in these - prdceedings is that Friends Provident, on his instructions, forbore from proceeding with winding-up proceedings against the third defendant in action 116 of 1991 and the defendant in action number 102 oi 19991. He informed me - although there is no Govt. Printer, Qld. 5 10 20 30 40 50 60 -- 5 of 7 -- 10 20 30 40 50 60. 200392 ORDER material on this - that the forbearance had arisen as a result of discussions with Freehills, who were previously involved in the matter in the interests of Mr and Mrs Cook and certain of the companies. The crux of the matter, as much as anything, seems to be that Mr Derrington is concerned that there are directors' guarantees-and'that if the undertakings that were originally given in this matter which were to be ·in· force until :the determination of'· this action or further< o-rder no longer' apply,. -there· may be a dissipation of assets of Portfolio Holdings before action can be taken to wind up the company. He sought, in effect, an adjournment of these proceedings further, so that he could file material directed towards the undertaking and presumably containing more information that might enlighten me as to what detriment Friends Provident would suffer in the event that I did not grant a stay of s9me description or adjourn the proceedings or continue the freeze that ·was originally iri force fo-r a.short period. It seems to me that in all of these circumstances this is not a case where I ought to give Mr Derrington leave to intervene in these proceedings. If his clients are so advised, I suggest that they should consider bringing separate proceedings in respect of such protection as they wish to put in place for the purpose of protecting their interes-ts. The order that T pronounced before, that, by con:sent,·-I make orders in Govt. Printer, Qld. 6 .] 10 20 30 40 50 60 \\ \ \\ (), () ( .I )I I -- 6 of 7 -- ( \ ( ( J 200392 1 I ORDER 10 20 30 40 50 60 terms of the draft, initialled by me·and placed with the papers, such order including: an order that the terms of settlement be filed and placed with the papers,is hereby made. I should note that the undertakings referred to were duly - given. I will.make an order-by consent in terms -of the 'draft, initialled by me and placed with the papers in actions 101 to 112 of 1992. Govt. Printer, Qld. 7 10 20 30 40 50 60 -- 7 of 7 --