Platcher, in the matter of Platcher v Joseph

ASIC's right to intervene in the Annulment proceedings 4 On 16 April 2002 ASIC filed a notice of motion asserting, inter alia, a right to intervene in the Annulment proceedings pursuant to s 1330 of the Corporations Act 2001 (Cth) ('Corporations Act') or Order 77 Rule 9(1) of the Federal Court Rules ('the Rules'). Rule 9(1) gives the Court a wide discretion to allow an interested party to be heard in a proceeding. Section 1330(1) of the Corporations Act states: 'ASIC may intervene in any proceeding relating to a matter arising under this Act.' 5 Mr Platcher contested ASIC's entitlement under s 1330 to intervene in these proceedings. It was not necessary for me to decide this issue before proceeding with the trial for, as a practical matter, I was prepared to allow ASIC to proceed on the basis that, even should I find against it in terms of s 1330, I would give it leave to be heard under O 77 r 9(1). Although the basis of ASIC's intervention made no practical difference in the conduct of the trial there is a difference in principle and consequences between leave granted under the Rules and an entitlement under s 1330. Although the Court can impose conditions to a grant of leave, leave granted under the Rules does not make the grantee a party to the proceedings. Section 1330(2) however provides that: 'Where ASIC intervenes in a proceeding referred to in subsection (1), ASIC is taken to be a party to the proceeding and, subject to this Act, has all the rights, duties and liabilities of such a party.'

As a party ASIC has, among its rights, duties and liabilities, the right to appeal a decision of this Court. For this reason alone its position where s 1330 applies is quite different from that which applies where leave is granted under the Rules. 6 Mr Platcher submitted that s 1330 did not apply to the Annulment proceedings because whether his bankruptcy should be annulled is a matter arising under the Bankruptcy Act and not under the Corporations Act. It should be noted however that s 1330 only requires that the proceeding relate to a matter arising under the Corporations Act. Mr Platcher relies, inter alia, on his claim to have his bankruptcy annulled to defend the Disqualification proceedings. He submits that under s 153B of the Bankruptcy Act an annulment would make his bankruptcy a nullity for all purposes including in relation to the alleged offences under the Corporations Law. While ASIC rejects this analysis it submits, rightly in my opinion, that this defence is clear evidence that the Annulment proceedings relate to the Disqualification proceedings. In fact, it is for this reason that the Supreme Court proceedings were transferred to this Court to be heard with the Disqualification proceedings. 7 The expression 'relate to' is very wide and general and I see no reason to read it down; see the views of Gibbs CJ and Mason J in Fountain v Alexander (1982) 150 CLR 615 at 624-5 and 629 respectively concerning the phrase 'in relation to' occurring in the Family Law Act 1975 (Cth). The ability of ASIC to discharge the supervisory and protective functions inherent in its disqualification rights and powers would be severely compromised if one were to adopt the narrow construction advocated by Mr Platcher.

Claim for annulment 8 Section 153B of the Bankruptcy Act provides that: 'If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.' In seeking annulment, it is necessary for Mr Platcher not only to show that the sequestration order ought not to have been made, but also to persuade the Court to exercise in his favour the discretion to grant or withhold annulment conferred by s 153B. In my opinion Mr Platcher has failed on both of these issues. 9 In his application for annulment Mr Platcher attacked the sequestration order on the grounds that it was made without either himself or his legal representative being present and that the debt relied on by the petitioning creditor was discharged by a settlement made in December 1998. The first of these grounds appears, from Mr Platcher's evidence, to be really a complaint that he believed that the petition had been dismissed. He referred to conversations with his solicitor that had contributed to his confusion about the petition and to an inspection that he made of Court records, which showed the petition, had been dismissed. His evidence about both these matters was vague. There was no corroborative evidence from his then solicitor and the date of the inspection was not given. It is not clear what and when Mr Platcher actually inspected. In the circumstances this evidence does not assist Mr Platcher. 10 As indicated above the debt relied on by the petitioning creditor was a judgment debt obtained in the New South Wales Local Court on 31 August 1995. Mr Platcher claims that he negotiated a compromise settlement of the judgment debt for $5,000 with Mr Joseph's agent, Mr Nehme. Mr Nehme's affidavit evidence was that in about December 1998 Mr Joseph had instructed him to accept from Mr Platcher the sum of $5,000 in full and final settlement of the debt and that this amount was paid by Mr Platcher. On cross-examination Mr Nehme was asked about the date he had signed the affidavit, which was undated. Initially he confused this with a question about the date on which the events referred to in the affidavit occurred but eventually stated that he had signed it late in 2001. He also stated that this was about nine months after the events in question. Further questioning revealed that he really had no independent recollection of when the events in question occurred and that the date of December 1998 had been suggested to him at the time of signing the affidavit. Mr Nehme's evidence is therefore not reliable evidence that the debt to Mr Joseph was settled prior to the making of the sequestration order. 11 Further doubt is cast on the status and timing of the alleged settlement by the absence of any contemporaneous documentary evidence of settlement and by Mr Platcher's evidence on cross-examination. That evidence established that Mr Platcher read and understood the bankruptcy notice and the creditor's petition, which included a statement of the debt owed. In his statement of affairs made on 10 June 1999 he made no mention of that debt having been settled by compromise. It is not credible that he would not have mentioned a compromise of the debt had it in fact occurred prior to making the statement of affairs. On the contrary Mr Platcher, in his statement of affairs, attributed his insolvency to the nature of his consultancy work and it not being profitable. 12 On the evidence before me I am not satisfied that Mr Platcher has established any basis for a claim that the sequestration order ought not to have been made. In any event, as mentioned earlier in these reasons the Bankruptcy Act confers on the Court a genuine discretion in terms of granting an annulment under s 153B; Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 ('Ozer') at [30]; MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72 at 73. Even if I were satisfied that the sequestration order ought not to have been made, and I am not, I would not exercise my discretion to annul Mr Platcher's bankruptcy because of his conduct in relation to the management of Growthcorp; Ozer at [8]-[12] per Katz J. This conduct is discussed in detail in relation to the Disqualification proceedings. The strong inference that Mr Platcher commenced the Annulment proceedings as a means of frustrating the Disqualification proceedings is also relevant. Despite having indicated an intention to seek an annulment as early as October 2000 Mr Platcher did not do so until 7 February 2002, four days before the date on which the Supreme Court proceedings were set down for hearing. Mr Platcher's failure to explain this delay supports the inference referred to above.

disqualification proceedings 13 The principal relief sought by ASIC is an order under s 206E of the Corporations Act on that basis that s 206E(1)(a)(ii) applies to Mr Platcher. The section is as follows: (1) On application by ASIC, the Court may disqualify a person from managing corporations for the period that the Court considers appropriate if: (a) the person: (i) has at least twice been an officer of a body corporate that has contravened this Act while they were an officer of the body corporate and each time the person has failed to take reasonable steps to prevent the contravention; or (ii) has at least twice contravened this Act while they were an officer of a body corporate; or (iii) has been an officer of a body corporate and has done something that would have contravened subsection 180(1) or section 181 if the body corporate had been a corporation; and (b) the Court is satisfied that the disqualification is justified.

(2) In determining whether the disqualification is justified, the Court may have regard to: (a) the persons conduct in relation to the management, business or property of any corporation; and (b) any other matters that the Court considers appropriate.' (emphasis added) 14 A body corporate is included in the definition of a 'corporation' and therefore the definition of 'officer' of a corporation in s 9 of the Corporations Act is pertinent. The section states, in so far as is relevant here, that the term means: '(a) a director or secretary of the corporation; or (b) a person: (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation's financial standing; or (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation; …'

Alleged contraventions 15 The contraventions on which ASIC relies both relate to Mr Platcher managing a corporation while he was an undischarged bankrupt. On 3 April 1997 Mr Platcher pleaded guilty to a charge that between 16 December 1994 and 6 February 1996 he managed a corporation while insolvent and without the leave of the Court. It should be noted that this charges relates to an earlier period of bankruptcy than that to which the Annulment proceedings apply. Mr Platcher's conduct was contrary to s 229(1) of the Corporations Law and consequently was an offence under s 1311(1)(a).) Mr Platcher was fined $500 in respect of this offence and placed on a good behaviour bond for two years). 16 ASIC alleges that the second contravention occurred during the period from 12 February 1999 (the date of the relevant sequestration order) to 4 December 2000 (the date on which interlocutory orders were made by the Supreme Court). ASIC alleges that during this period (the 'alleged management period') Mr Platcher committed an offence, or a series of offences, under s 206A of the Corporations Act and its predecessor legislation.

Legislative background to the alleged contraventions 17 Before considering Mr Platcher's conduct further however it is necessary to examine the legislative background against which the issues raised by ASIC must be decided. Since the commencement of the alleged management period there have been a number of changes to the corporations legislation relevant to Mr Platcher's conduct and the question of whether he has committed offences within the meaning of s 206E(1)(a)(ii). 18 The Corporations Act commenced on 15 July 2001. Before that the applicable legislation was the Corporations Law Scheme that commenced on 1 January 1991. Under that scheme the substantive corporate law provisions were contained in the Corporations Act 1989 (ACT). Legislation in the States and in the Northern Territory applied those provisions within their own jurisdictions thereby creating a uniform national scheme, the Corporations Law. The scheme was administered by ASIC which is a Commonwealth body established under the Australian Securities and Investments Commission Act 1989 (Cth). The States and the Northern Territory also picked up relevant provisions of that Act as well as conferring certain powers of administration and enforcement on Commonwealth authorities such as the Director of Public Prosecutions and the Federal Police. It is well known that two decisions of the High Court, Re Wakim; ex parte McNally (1999) 198 CLR 511 ('Wakim')and R v Hughes (2000) 202 CLR 535 ('Hughes'), held that significant aspects of the national scheme were invalid with the result that the scheme foundered. 19 The problem created by the decisions in Wakim and Hughes was solved by having the States refer certain powers to the Commonwealth under s 51 (xxxvii) of the Commonwealth Constitution and creating a replacement legislative scheme of which the Corporations Act is the centrepiece. Two important aspects of the replacement legislation are (a) that it contains provisions designed to validate actions of Commonwealth officers and authorities that may have been invalid as a result of Hughes; and (b) that it re-enacted the provisions of the Corporations Law and contained detailed transitional provisions in Pt 10 of the Corporations Act to facilitate a smooth transition to the present regime so that 'individuals, bodies corporate and other bodies are, to the greatest extent possible, put in the same position' as they would have been under the Corporations Law; s 1370, see also s 1398. To that end rights and liabilities equivalent to those that existed under the Corporations Law were created under the Corporations Act; see Division 6 of Pt 10.1, in particular s 1400 to s 1403.

Legislative provisions relevant to the disqualification proceedings 20 In so far as the provisions relevant to the disqualification proceedings are concerned there have effectively been two legislative 'regimes' applicable from the commencement of the alleged management period to the present. Those regimes are: (a) Earlier regime: the Corporations Law in the form in which it existed during the period from 12 February 1999 to 12 March 2000; (b) Present regime: the Corporations Law as amended by the Corporate Law Economic Reform Program Act 1999 (Cth)applied from 13 March 2000 to 14 July 2001 and the Corporations Act applied from 15 July 2001 to present. 21 As explained above the relevant provisions of the Corporations Law as at 14 July 2001 were re-enacted under the Corporations Act and pre-existing rights and liabilities were replaced by equivalent rights and liabilities. For that reason, in so far as is relevant here, the corporate law rights and liabilities were identical throughout the period from 13 March 2000 to the present and I have therefore treated this as a single regime. For convenience and simplicity I shall refer to the relevant provisions as provisions of the Corporations Act when dealing with legislative provisions under the Present regime. When dealing with provisions relevant to the Earlier regime I shall refer to the provisions of the Corporations Law during that period.

Disqualification from managing corporations 22 Section 206B(3) of the Corporations Act states that a undischarged bankrupt is disqualified from managing corporations. A similar provision applied under s 229(1) of the Corporations Law, which states that 'an insolvent under administration' must not manage a corporation without the leave of the Court. As I have rejected Mr Platcher's application to have the bankruptcy that commenced on 12 February 1999 annulled, there is no dispute that during the alleged management period Mr Platcher was an undischarged bankrupt and 'an insolvent under administration'; see definition s 9 Corporations Law. Therefore, until his bankruptcy was discharged by operation of law on 11 June 2002, he was disqualified from managing a corporation.

Offence under Corporations Law 23 Under s 229(1) of the Corporations Law an offence is committed if the conduct of the insolvent person constitutes managing a corporation within the meaning of the section. In Australian Securities and Investments Commission v Parkes (2001) 38 ACSR 355 ('ASIC v Parkes') at 357, Austin J pointed out that s 229(1) is a strict liability provision 'in the sense that the prosecutor or plaintiff does not have to prove the insolvent under administration acted with a guilty mind'; see also Poyser v Commissioner for Corporate Affairs [1985] VR 533. It is however, necessary to prove that the person's conduct is properly described as 'managing a corporation'. Growthcorp is an Australian Proprietary Company registered and incorporated in New South Wales and therefore is a 'local corporation' within the meaning of the definition in s 9 of the Corporations Law. In relation to local corporations s 91A(2) provides some assistance stating that: 'A person manages a local corporation if the person, in this jurisdiction or elsewhere, is a director or promoter of, or is in any way (whether directly or indirectly) concerned in or takes part in the management of, the corporation.' 24 In Commissioner for Corporate Affairs v Bracht [1989] VR 821 ('Bracht') Ormiston J had to decide, under s 227(1) of the Companies (Victoria) Code if the defendant had taken part in the management of a corporation. Ormiston J referred to the predominately protective nature of the provision and stated that it should be given a broad operation. His Honour pointed out however that the section was not intended to deny a person in the 'prescribed categories' the right to earn a living: 'As it is a protective section, protective at least of the creditors and shareholders, then it must have been designed to prevent the participation in management of those who might put the solvency or the probity of the corporation's administration at risk. Persons not given any significant discretion or advisory role in decision-making could not therefore be intended as an object of the prohibition. It may be difficult to draw the line in particular cases, but in my opinion the concept of "management" for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs.' 25 As Ormiston J further commented, however, in a small company 'the activities of management and day to day administration may often appear to be merged or, at least performed by the same people. This observation is relevant to the case of Growthcorp as the evidence discussed below shows.

Offence under Corporations Act 26 The difficulties discussed in Bracht do not arise in determining if an offence has been committed under s 206A of the Corporations Act. The section provides that a person who is disqualified from managing corporations commits an offence if: '(a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (b) they exercise the capacity to affect significantly the corporation's financial standing; or (c) they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation: (i) knowing that the directors are accustomed to act in accordance with the person's instructions or wishes; or (ii) intending that the directors will act in accordance with the person's instructions or wishes.'

The evidence 27 ASIC relies on the evidence of ten witnesses. I shall examine the evidence of each of these witnesses.

Nathan Morgan 28 Mr Morgan's evidence was as follows. His involvement with Mr Platcher started in October 1998 when Darryl Morrison, a friend of Mr Morgan's family and the manager of a hotel where he was working at that time introduced them. It seems that Mr Platcher was aware, apparently having being informed by Mr Morrison, that Mr Morgan was likely to inherit property from his grandmother. Mr Platcher introduced himself as a director of Growthcorp and invited him to invest in a hotel in Townsville and in land adjoining the hotel. In due course Mr Morgan reviewed a valuation report and financial information provided by Mr Platcher. Although he did not understand all of it he was impressed by the pictures of the hotel and the prospect of obtaining a one third share in the property. 29 Mr Morgan agreed to invest $150,000 and Mr Platcher was to instruct solicitors to draw up a contract. In November 1998 Mr Morgan visited Mr Platcher at his home in Glebe expecting to sign a deed formalising this investment. Mr Platcher wrote out a deed by hand and stamped it with the seal of Growthcorp. A copy of the deed annexed to Mr Morgan's affidavit states that he had agreed to provide to Growthcorp the sum of $240,000. Mr Morgan stated that he had agreed to invest only $150,000. Evidently the money was to be used to finance the purchase of the hotel and land and Mr Morgan understood that he was required to provide a personal guarantee of the mortgage. 30 Mr Morgan also worked for Growthcorp from March 1999 to February 2000. The arrangement appears to have been informal and haphazard. During the time he worked for Growthcorp (until February 2000) a number of different offices were used; some in the Sydney CBD, in Surry Hills and in Platcher's home in Glebe. Mr Morgan stated that while he worked at Growthcorp he received all of his instructions from Mr Platcher. He also observed that John Grego, Growthcorp's accountant, received his instructions from Mr Platcher. Mr Grego would type all of the company's letters, which would be signed by Mr Platcher. 31 During the period that Mr Morgan worked for Growthcorp, the directors were Dr Peng Tin Chia and Mr Luigi Pettenon. Mr Morgan only observed Dr Chia to visit the Growthcorp office on a few occasions but stated that Mr Pettenon did so two or three times a week. Mr Morgan saw Mr Grego and Mr Pettenon sign cheques at the Growthcorp offices on the instruction of Mr Platcher. He stated that it was customary for the cheques to be left blank and for Mr Platcher to complete the details, including the amount payable, at a later time. Mr Morgan said that he did not ever observe either Mr Pettenon or Dr Chia providing instructions to Mr Platcher. He stated that during his employment at Growthcorp he observed Mr Platcher perform various duties on a daily basis, including: 'writing on documents and signing letters, contracts, submissions and faxes'. Mr Morgan also observed that Mr Platcher 'met and negotiated with potential investors and clients and instructed solicitors and valuers at the company's offices'. 32 Mr Morgan 'only occasionally received the weekly payment Mr Platcher had promised' for his services and when he did receive it, it was payment in cash. He gave evidence of numerous occasions during his employment with Growthcorp when he lent money to Mr Platcher. It would appear that Growthcorp was having difficulties in meeting its mortgage commitments. Mr Morgan also gave evidence about various other investment proposals that Mr Platcher was organising from the Growthcorp offices including investments for Abasus Investments Pty Limited ('Abasus'). Mr Morgan also identified a copy of a valuation report concerning an abattoir at Yallah, New South Wales. The report states that it was prepared for 'Growth Corporation - (Mr Charles Platcher) on behalf of Parrish Meat Supplies (Wollongong)'. 33 The report commences with the words 'We have been instructed by Mr Charles Platcher of Growth Corporation'. Mr Morgan stated that the valuation report was contained within Growthcorp's working file, which he retained when he ceased his employment with Growthcorp. Mr Morgan testified that he was advised in February 2000 by his then solicitor, that Mr Platcher had been made bankrupt in February 1999, which was shortly before he commenced work at Growthcorp. He stated that at no time prior to February 2000 was he aware that Mr Platcher was a bankrupt. 34 Although he was extensively cross-examined by Mr Platcher, Mr Morgan was not shaken on the essentials of his evidence. He impressed me as a reliable witness who, in the circumstance, showed surprisingly little resentment of his experiences with Growthcorp and Mr Platcher. His account of Mr Platcher's role in Growthcorp and the transactions in which it was involved is consistent with Mr Platcher being actively involved in the management of Growthcorp and making decisions that affected the whole or at least a substantial part of Growthcorp's business. From Mr Morgan's account Mr Platcher, as a practical matter, was in control of Growthcorp.

Michael Johnston 35 Mr Johnston is an auto-electrician who has known Mr Morgan for more than 15 years. He stated that in late 1999 he had been contacted by Mr Morgan who told him that he was working for Growthcorp, which needed investors to complete some of its projects. Initially Mr Johnston stated that he was not interested in investments. In November 1999 Mr Morgan introduced Mr Platcher to him. Mr Platcher told him about two projects, a proposed development of a backpackers resort on land at Noosa and the proposed purchase of the abattoir in Yalla. Shortly after that Mr Johnston agreed to invest with Growthcorp. 36 At that time Mr Johnston had a mortgage over his house on which the outstanding amount was about $130,000. Mr Platcher suggested that Mr Johnston borrow funds to invest in the Growthcorp investments. If he did then Growthcorp would make the pay the interest on the loan, make his mortgage repayments and, within six months would pay out the loan and the mortgage. 37 In January 2000, Mr Johnston raised funds by way of a second mortgage on his house in North Curl Curl in the amount of $360,000. He said he understood that portions of that amount would go towards the purchase of property at Noosa and the purchase of the abattoir at Yallah. In February 2000 Platcher told him that some of the $360,000 was invested in the Noosa property and some in a property at Curl Curl. Mr Johnston said that he did not at any stage authorise Mr Platcher to invest his money in the Curl Curl property. According to Mr Johnston there followed a number of transactions where money was paid to him, which he deposited at a branch of the ANZ bank at Brookvale. This account was then drawn on to pay money to Growthcorp and to meet some of its commitments. While it is not at all clear to me why the business was organised in this way. Mr Johnston's evidence is clear that it was Mr Platcher who was organising these transactions and giving him instructions about where money was to be paid and so forth. 38 He also stated that contrary to the assurances that he had received from Mr Platcher, Growthcorp did not meet the payments on his loan of $360,000. He was not kept informed as to the progress of the investments or whether the payments on his loan were met. Eventually, on 7 November 2000, the mortgagee took possession of Mr Johnston's property at North Curl Curl. In his affidavit of 6 March 2001, Mr Johnston stated that as recently as 15 February 2001 he had received a telephone message from Mr Platcher assuring him that the problem with his house would be resolved and that he would not let him down. 39 Mr Johnston's evidence is consistent with Mr Morgan's account of the way in which the business of Growthcorp was managed. Mr Johnston's answers to questions on cross-examination by Mr Platcher indicated that his commercial relationship with Mr Platcher was complex and that he may not have taken sufficient care of his own interests. This is not, however, relevant to the central issue of Mr Platcher's role in Growthcorp.

Francis Garvin 40 Mr Garvin has operated his own publishing business for about 12 years. Before that he was involved in merchant banking for about 12 years including a period of five years when he was General Manager of the Australian Bank Ltd. Mr Garvin stated that he had sought the assistance of his accountant, Mr Grego to obtain finance in relation to the purchase of a property. Mr Grego had recommended Mr Platcher who subsequently contacted Mr Garvin. This was in September 1999. In the course of the conversation about the finance that Mr Garvin wanted he states that Mr Platcher also suggested that he invest in the Noosa property saying 'I have a property-based deal that you may be interested in, through a development company called Growthcorp'. 41 He states that he asked Mr Grego about Mr Platcher's relationship to Growthcorp in September 2000. He was told that Mr Platcher acted as a consultant to Growthcorp, an assertion that Mr Platcher made himself a couple of days later when asked directly what his relationship to Growthcorp was. Eventually Mr Garvin agreed to invest in the Noosa project and to that end he agreed to lend money to Growthcorp. Mr Platcher told him that he needed $60,000 to use as a deposit to secure a separate project and when that occurred he would be able to raise $200,000 from the release of a builder's deposit. It appears that Mr Garvin arranged for that $60,000 to be provided to Growthcorp out of the monies coming to him on the settlement of a property sale. At the time of the settlement Mr Garvin was in Noosa. He arranged for Mr Platcher to attend settlement and to receive a cheque for Growthcorp in the sum of $60,000 and a cheque for almost $14,500 payable to Mr Garvin. Those cheques were to be given to Mr Garvin pending the drawing up of the loan documentation pursuant to which he would lend the $60,000 to Growthcorp. 42 However when Mr Garvin went to collect the cheques he found that the cheque to Growthcorp for $60,000 was missing. Mr Platcher explained that he had taken it and would pay it back the following week with interest. Mr Garvin was disturbed at this because he had specifically said that he did not want to make an unsecured loan. That was on 12 October 1999. He described the attempts he made to recover the $60,000, the way in which Mr Platcher prevaricated and the difficulties he had in contacting Mr Platcher. Mr Platcher's excuses were numerous and varied. In April 2000 Mr Garvin spoke again to Mr Grego and asked him whether Growthcorp was solvent and 'who owns Growthcorp'? He states that Grego replied 'Charles Platcher is Growthcorp. There is no one else involved'. Mr Garvin stated that this surprised him because he had been repeatedly told that Growthcorp was an independent property development company to which Mr Platcher was a consultant.

43 However, Mr Garvin had himself formed the view that Mr Platcher acted as a manager of Growthcorp. In cross-examination Mr Garvin stated that he formed the opinion the Mr Platcher was managing Growthcorp because, during time he spent at the Growthcorp office observed that Mr Platcher had:

(a) authority to sign loan statements on behalf of Growthcorp; (b) authority to direct others, such as John Grego to sign statements confirming Growthcorp's indebtedness to himself and to draw cheques on behalf of the company; (c) authority to direct Mr Pettenon to do various clerical tasks; and (d) authority to telephone various third parties and make deals on behalf of Growthcorp. 44 On 3 May 2000 Mr Platcher agreed to repay $3,000 to Mr Garvin and directed Mr Grego to draw a cheque for that amount payable to Mr Garvin. The bank returned the cheque unpaid. It is not necessary to go into details of all the attempts Mr Garvin made to recover his money or the cheques that were given to him by Mr Platcher which were dishonoured. Eventually Mr Garvin contacted ASIC. He also stated that during the whole of the relevant period until 15 November 2000 he was not aware that Mr Platcher was bankrupt. 45 Mr Garvin's evidence, which cross-examination only confirmed; strongly pointed to Mr Platcher being more than the consultant he claims to have been in relation to Growthcorp. Moreover his conduct in relation to the cheque for $60,000 received on settlement shows a lamentable lack of concern for Mr Garvin's interests. Mr Garvin's evidence was that, although he had directed that the cheque be made out to Growthcorp, the arrangement was that Mr Platcher would collect both cheques on Mr Garvin's behalf. Mr Garvin was not prepared to deliver the cheque to Growthcorp or Mr Platcher until he had security for the loan. Mr Platcher led no evidence to contradict this version of events and I see no reason to disbelieve Mr Garvin's account.

Paul Veron 46 Mr Veron is the Managing Director of Mortgage Partners Pty Ltd a company that provides a range of mortgage products from banks and other lending institutions. He gave evidence that in July 1999 he received a call from Mr Platcher who said that a 'director of Growthcorp needs finance for an investment in an orange juice company. He will be needing about $150,000'. Subsequently he met Mr Platcher in his office where Mr Platcher informed Mr Veron of various projects being undertaken by Growthcorp and said that the loan was required by Paul, Jeremy and Denice Pettenon. 47 Mr Veron gave details of other applications for loans that Mr Platcher made to him including an occasion in August 1999 when Mr Platcher approached him regarding a loan that Growthcorp needed to purchase an abattoir. Mr Platcher also spoke to Mr Veron about the prospects of financing the purchase of a property in Noosa. In all of these negotiations, written instructions and requests were exchanged by facsimile with Growthcorp. A number of facsimiles were annexed to the affidavit of Mr Veron and showed them to be on Growthcorp's stationary and signed by Charles Platcher. One of the loans that were negotiated through Mortgage Partners was the loan to Michael Johnston secured by a second mortgage over Johnston's property in North Curl Curl. 48 Mr Veron described how he had to telephone Mr Platcher on numerous occasions about Mr Johnston's failure to make payments on the loan and the responses that he received from Mr Platcher promising that the money to pay off Johnston's loan would be forthcoming shortly. He stated that during February and March 2000 he 'learnt of the fate of other Growthcorp clients for whom Mortgage Partners had organised finance with Burrawong'. He stated that as a result he telephoned the offices of Growthcorp to speak to Mr Platcher about these clients on multiple of occasions. On some occasions the telephone was answered by Mr Pettenon who when asked what was happening with a particular client's loan responded with words to the following effect 'I don't know anything. You will need to speak to Charles about it'. Mr Veron said he got similar responses from other staff and that the message was that 'Platcher was the only person available at Growthcorp who was able to answer any queries I had concerning loans that had been extended to its clients'. He further stated that all his discussions and communications concerning Growthcorp matters were exclusively with Mr Platcher. Mr Veron said he was not aware at any time during the period he had dealings with Mr Platcher that he was an undischarged bankrupt.

Philip Rennie 49 Mr Rennie is a registered valuer who at the time of swearing his affidavit was consulting to Herron Todd White in Sydney. In February or March 1999 Mr Platcher contacted him with a view to providing a valuation for the abattoir. Mr Rennie told Mr Platcher that he would need an instruction in writing. He agreed on cross-examination that the written instruction for the valuation came on Growthcorp letterhead signed by Dr Chia. In subsequent discussions in March and April 1999 Mr Rennie said he became aware that Mr Platcher was representing Growthcorp. In May 1999 the abattoir valuation was produced and presented to Mr Platcher together with an invoice for fees and associated costs totalling $5000. Mr Platcher provided a Growthcorp cheque that was subsequently dishonoured. Despite efforts to obtain the outstanding payment, including use of a debt collector, the account has not been paid. Mr Renney gave evidence that apart from a brief conversation with the accountant, Mr Grego, all his discussions and dealings with Growthcorp were with Mr Platcher. At one stage he received a one page faxed letter from Dr Chia but did not at any time speak to or have any dealings with Dr Chia.

Michael Mortimer 50 At the time of swearing his affidavit Mr Mortimer was a Senior Investigator with the Enforcement Branch of ASIC. He has been responsible for the conduct of the investigation conducted by ASIC into the affairs of Growthcorp, Abasus and Mr Platcher. Mr Mortimer annexed to his affidavit copies of historical company extracts he had obtained from the ASIC database. Those searches dated 28 November 2000 show that at that date Mr Pettenon was the only director of both those companies. In relation to Growthcorp he had held that position since 28 January 1999. He was also secretary of Growthcorp having been appointed on 10 March 2000. The Growthcorp search showed that Dr Chia was a director from 1 February 1997 to 10 March 2000. Dr Chia had also previously been the secretary of Growthcorp until replaced by Mr Pettenon in March 2000. In relation to Abasus, Mr Pettenon was originally appointed as a director on 12 July 1999. He was appointed as the sole secretary and director on 31 January 2000. 51 Mr Mortimer also provided search records taken from a national database 'ASCERTAIN' that incorporates details of insolvent persons under administration from the database of the Insolvency and Trustee Service of Australia. The search extract relating to Mr Platcher disclosed that he had been declared bankrupt on four occasions; 8 December 1992, 16 December 1994, 22 June 1998 and 15 February 1999. Mr Mortimer also provided extracts from the database showing that the first period of bankruptcy was annulled on 27 September 1993 by order of the Federal Court. Mr Mortimer gave evidence about telephone conversations he had with Mr Platcher in which on a number of occasions Mr Platcher requested that Growthcorp documents that had been produced to ASIC be returned to him because he had to do some further work for some of the clients whose files were held by ASIC. He also stated that he was organising for the preparation of Growthcorp's outstanding annual returns. On 11 December 2000 Austin J of the New South Wales Supreme Court issued interlocutory orders restraining Mr Platcher, until further orders from:

• managing Growthcorp either directly or indirectly;
• seeking directly or indirectly finance for and on behalf of Growthcorp and/or clients of Growthcorp;
• negotiating either directly or indirectly any agreement for and on behalf of Growthcorp and/or for and on behalf of the clients of Growthcorp;
• holding himself out as a director or officer of Growthcorp. 52 On 5 April 2002 Mr Mortimer sent a letter to Mr Platcher offering him an opportunity to attend an audio taped record of interview for the purposes of answering questions concerning his involvement in the management of Growthcorp. The letter stated that particular questions would be put to Mr Platcher regarding allegations that he was involved in the management of Growthcorp whilst bankrupt. The letter also stated that if ASIC had not heard from Mr Platcher by 10.00 am on Monday, 29 April 2002 it would be assumed that he did not wish to attend the record of interview.

Michael Pestano 53 Mr Pestano is the General Manager of Compu-NET Services Pty Ltd ('Compu-NET'). He gave evidence that he has known Mr Platcher socially for five or six years. Over that period Mr Platcher has told Mr Pestano of various business deals and opportunities and has referred to Growthcorp. Mr Pestano stated that he understood that Growthcorp was a company owned and operated by Mr Platcher. In July 2000 Mr Platcher inquired of Mr Pestano whether he had room in his office, at Walker Street in North Sydney, for lease. Mr Pestano did have two rooms in an office that Compu-NET shared with ONI Collections, a debt recovery business operated by his son. 54 Growthcorp moved into the office space on 14 July 2000 and occupied the two rooms there until February 2001 when it was evicted for failure to pay rent. Over the period that Growthcorp occupied the premises Mr Pestano noticed that Mr Platcher attended the offices regularly and that a number of people attended the office asking to see Mr Platcher. From July 2000 to mid February 2001 Mr Pestano received only two rental payments from Growthcorp and often took the opportunity to remind Mr Platcher about the rent. He stated that the usual response was that the money would be available soon. Although Mr Pettenon often attended the office Mr Pestano was not aware that he was a director until he saw a legal document that was slipped under the front door of the office. He stated that if he had been he would have asked Mr Pettenon for the outstanding rent money.

Max McDonald 55 Mr McDonald is employed by ONI Collections. He has known Mr Platcher for some years. He gave evidence that corroborated Mr Pestano's recollection of the circumstances leading up to Growthcorp leasing part of that same office space. Mr McDonald said that he obtained a commercial lease agreement and filled it out in readiness for the parties to sign. Mr Platcher instructed him that the lessee should be Growthcorp. He also recalled overhearing Mr Platcher mentioning Growthcorp when organising to have telephone lines connected to the two rooms Growthcorp was to lease. When he took the lease to Mr Platcher to sign, Mr Platcher said, 'You will need to get [Mr Pettenon] to sign it. He is a director of the company'. Mr Pettenon signed the lease and Mr McDonald witnessed his signature. 56 According to Mr McDonald it was only a few weeks after Growthcorp had moved into the office that Mr Pestano asked him to chase up the rent from Growthcorp. He had occasion to do this numerous times over the next five or six months. Mr Platcher's usual response was some or other assurance that payment would be forthcoming shortly. On one occasion Mr Platcher invited Mr McDonald to come with him to get the money. He went with Mr Platcher and Mr Pettenon to Darlinghurst and waited in the car while they went somewhere and returned with $300 in cash. Growthcorp occupied the leased rooms for about seven months until early February 2001. 57 Mr McDonald stated that during that period he observed that Mr Platcher and Mr Pettenon attended the office on most days as did another person, Jemma Gallagher. He would overhear Mr Platcher instructing Ms Gallagher and observed that Platcher was the person who was in charge of running Growthcorp and the spokesman for the company. He was the main person Mr McDonald heard speaking on the telephone on behalf of Growthcorp and he was the person Growthcorp's clients asked to see. Mr Pettenon, he said, was not as assertive as Mr Platcher and appeared to be more of an observer.

Dr Peng Tin Chia 58 Dr Chia's affidavit evidence was brief. He stated that he first became involved with Mr Platcher in mid-1997 at a time when he was finding it very difficult to obtain finance. He said that Mr Platcher was the only person who was prepared to assist him. He said that some weeks after they met Mr Platcher asked him if he would agree to be a director of Growthcorp. He agreed because he felt indebted to Mr Platcher. He became a signatory on the company's bank account and would write cheques at Mr Platcher's request. It is clear from Dr Chia's evidence that his involvement with Growthcorp was quite minimal. In 1998 and 1999 he was heavily involved in his medical practice and in some litigation that was not related to Growthcorp. On Mr Platcher's instructions Dr Chia prepared and signed some letters and other documents. He was not however involved in any details of the company's business and following the appointment of Mr Pettenon as director in January 1999 he had almost no involvement in the company. He resigned as a director in March 2000. 59 Dr Chia was made bankrupt in April 2000 as a result of a guarantee he provided in respect of the proposed Townsville hotel purchase. He stated that while he was a director it was his belief that Mr Platcher was running Growthcorp.

John Grego 60 Mr Grego is an accountant working as a sole practitioner. On 13 December 2000 Mr Mortimer and Lisa Koczberski conducted a private examination of Mr Grego, pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth). The examination was tape-recorded and a transcript of the examination was put into evidence as an attachment to the affidavit of Ms Koczberski who certified that it was a true and accurate record of the proceedings of the examination. During the examination Mr Grego stated that he was introduced to Mr Platcher as a finance broker sometime in 1998. In late 1998 Mr Platcher asked Mr Grego to look at some figures in relation to the proposed purchase of an orange juice factory by Growthcorp. At that time Mr Grego did not get the impression that Mr Platcher had any relationship with Growthcorp other than as a finance broker. He was not aware that Mr Platcher was bankrupt until informed in the course of the investigation into Mr Platcher. Round about that time he was introduced to Dr Chia as a director of Growthcorp. 61 He stated that in the office Mr Platcher had 'a few people' helping him. He remembered the name Nathan Morgan. Mr Morgan took his instructions from Mr Platcher. Later, he said, Mr Pettenon was working with Mr Platcher. Mr Grego was aware that Mr Pettenon became a director of Growthcorp. Mr Grego was also aware of the fact that Growthcorp had changed offices a number of times, moving from Crown Street to North Sydney and Surry Hills. He observed that Dr Chia did not often come into the offices although he visited them occasionally. Mr Grego stated that Mr Pettenon did not regularly attend the Growthcorp office until early 2000, about which time he started attending on a daily basis. 62 Mr Grego was not aware of any of the arrangements between Growthcorp and Mr Platcher about remuneration although he was aware that Mr Platcher was paid from company funds and stated that he arranged for Growthcorp cheques payable to Mr Platcher. It was Mr Platcher who told him the amount in which the cheques should be made out. The payments were not regular but occurred when money came in from a client or from a matter being settled. To Mr Grego's knowledge Mr Platcher did not submit invoices to the company. He did not seek to confirm Mr Platcher's instructions with the directors. Mr Grego said that from what he witnessed Mr Platcher seemed to be in charge of any thing to do with finance or any 'quasi legal' matters and that he was the negotiator for the company. Mr Grego would prepare tax returns for the company and give them to Mr Platcher and Mr Pettenon. Payments to the directors were by cash, cheque or by payment for credit cards, car payments or mortgage payments in the case of Mr Pettenon. 63 It is not necessary to summarise in detail the substance of the examination. It is sufficient to say that Mr Grego's evidence supported the comments made by other witnesses that Mr Platcher was the person in charge at Growthcorp. Mr Grego stated that for much of the time under consideration he did the bulk of the typing with respect to correspondence from Growthcorp and that his instructions were received from Mr Platcher. He mentioned that he typed numerous letters for Mr Pettenon but admitted that they were personal letters not related to Growthcorp. He did not recall any occasion when a letter dictated or instructed by Mr Platcher had to be authorised by Mr Pettenon. When asked who managed Growthcorp Mr Grego said that Mr Platcher managed the finance deals for Growthcorp. During his examination Mr Grego was shown some documents in relation to the operation of two Commonwealth Bank accounts. Mr Grego became a signatory to those accounts following a discussion with Mr Platcher and Dr Chia in late November 1998. Mr Grego was not able to explain why Mr Platcher was not a signatory to the account. Examination of the cheque butts reveal that a number of cheques would be signed in blank and given to Mr Platcher to use for payment of business expenses. 64 None of the ASIC witnesses was shaken to any material extent on cross-examination and Mr Platcher did not bring any contradictory evidence. All of the witnesses struck me as attempting to give an honest and straightforward account of their dealings with Growthcorp and with Mr Platcher. In the circumstances I have no reason not to accept their evidence. 65 The evidence that I have accepted regarding Mr Platcher's conduct in relation to Growthcorp clearly indicates to my mind that during the alleged management period Mr Platcher was managing a corporation without the leave of the Court. Adopting the test used by Ormiston J in Bracht (see [25] above) Mr Platcher was engaged in policy and decision-making about the affairs of Growthcorp that had a significant bearing on the financial standing of the company and the conduct of its affairs. Moreover Mr Platcher's conduct during that period meets the criteria imposed in each of ss 206A(a), (b) and (c) of the Corporations Act. It is clear that Mr Platcher had virtually complete control of the corporation, its finances and business and that he gave instructions to the directors (Dr Chia from 1 February 1997 to 10 March 2000 and Mr Pettenon from 28 January 1999), who were accustomed to act in accordance with them and intending that they would act in accordance with them. Indeed, there is no evidence that the directors ever gave instructions to Mr Platcher or questioned his decisions or authority to make them. It is clear that although the directors may technically have had the control of Growthcorp, the actual, ostensible and ultimate control of almost every aspect of the corporation rested with Mr Platcher. 66 This finding also supports the conclusion that Mr Platcher was, at the relevant time, an officer of Growthcorp within the definition set out in [14] above. In light of my earlier finding that Mr Platcher was a person disqualified from managing corporations during the alleged management period, the weight of evidence against Mr Platcher in respect of his conduct in relation to Growthcorp, and his failure to lead any credible contradictory evidence I am comfortable with the view and that the second contravention alleged by ASIC has been established and that my discretion under s 206E to disqualify him from managing corporations for an appropriate period has been enlivened.

67 Section 206E(2) provides that: 'In determining whether the disqualification is justified, the Court may have regard to: (a) the person's conduct in relation to the management, business or property of any corporation; and (b) any other matters the Court considers appropriate.' 68 The evidence shows that a number of people have suffered extensive losses in connection with Mr Platcher's management of Growthcorp is made expressly relevant by s 206E(2). While I do not suggest that Mr Platcher set out to defraud anyone, he has shown indifference to the interests of those whom he embroiled in his schemes. More importantly perhaps, he has shown no regret or even consciousness as to the effects of his conduct. 69 As indicated earlier the purpose of disqualification orders is to protect the public rather than to punish the subject of the orders; Australian Securities and Investments Commission v Parkes (2001) 38 ACSR 355; Re Minimix Industries Ltd (1992) 1 ACLR 511; Re Marsden (1981) 5 ACLR 694; Commissioner for Corporate Affairs v Ekamper (1987) 12 ACLR 519; ASC v Roussi (1999) 32 ASCR 568; and ASC v Forem Freeway Enterprises [1999] FCA 179. I am satisfied that a disqualification order is appropriate in this case. 70 The Corporations Act states that the Court may 'disqualify a person from managing corporations for the period that the Court considers appropriate'. ASIC submits that an order for a similar period to that made in ASIC v Parkes would be appropriate. That period was 25 years and would effectively bar Mr Platcher from managing a corporation for life. It would not, however, prevent him from earning a living and from using such skills in the financial area as he may possess. It would mean that he would have to be supervised by someone who is permitted to manage a corporation and who would have the responsibility for Mr Platcher's conduct. 71 Like Austin J, however, I find that Mr Platcher's offences are very serious and they have been recurrent. In the absence of any discernable appreciation of the implications of his conduct or any contrition I am not convinced that any less period would provide the protection that is the purpose of these provisions. For that reason I am disposed to order that for a period of 25 years, Mr Platcher be disqualified from managing a corporation. 72 Like Austin J in ASIC v Parkes I do not findcases 'indicative of the range of prohibition' to be any real assistance because of the infinite variety of facts and discretionary considerations involved in each case. I am however confirmed in my opinion by the similarities between the circumstances of this case and those considered by Austin J in ASIC v Parkes. Mr Johnston and Mr Morgan have lost their houses; Mr Garvin has a default judgment against Mr Platcher in the sum of around $216,000. Mr Platcher's field of expertise and ability to raise finance mean that the potential to repeat his conduct is great. Mr Platcher has previously pleaded guilty to similar conduct that also resulted in significant losses to members of the public. Further his attempted use of the Annulment proceedings and failure to offer any other explanation for his conduct suggest to me that there is a high likelihood that he would offend. 73 I am of the view that Mr Platcher is not a competent person to be managing corporations and that the disqualification of Mr Platcher is justified by the very serious risk that should he not be disqualified he will once more cause serious losses to members of the public.

Orders 74 For the reasons expressed above I am satisfied that an order should be made disqualifying Mr Platcher from managing corporations for a period of 25 years. In its application ASIC also asked for certain declarations as well as specific orders prohibiting Mr Platcher from managing Growthcorp and Abasus and from engaging in other activities in respect of Growthcorp. As the order proposed above would comprehend the more specific orders I do not believe that these orders are necessary. Similarly, given my reasons for making the disqualification order I do not believe that the declarations sought by ASIC are desirable or necessary and I do not propose to make these order.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 13 January 2003 N 7032 of 2002 Counsel for the Applicant: The applicant appeared for himself

Counsel for the Respondent: No appearance

Counsel for the Australian Securities and Investments Commission: Mr N Beaumont

Solicitor for the Australian Securities and Investments Commission: Ms J Redfern

N 3019 of 2002 Counsel for the Applicant: Mr N Beaumont

Counsel for the Respondent: The respondent appeared for himself