A S I C



[pic]

AUSTRALIAN ADVOCACY INSTITUTE

ASIC

V

David and Yvonne

MCLEOD

© COPYRIGHT 2004

Australian Advocacy Institute

These case study materials are copyright. Subject to the Copyright Act 1968, they and any part of them may not be reproduced in any material form, performed in public, broadcast, transmitted by subscription, cable service, or adapted without the prior written permission of the Australian Advocacy Institute.

Prepared by

Formatted SW Feb 2004

[pic]A S I C

BRIEF OF EVIDENCE

ASIC -v- David and Yvonne MCLEOD

TABLE OF CONTENTS

Folio Title

1. Statement of Facts

2. Proof of Elements

3. Witness & Exhibits List

4. Statement of Richard Webb

5. Statement of Dianne Jervis

6. Certificate as to the Holding of the Office of Director (Yvonne McLeod)

7. Certificate as to the Holding of the Office of Director (David McLeod)

8. Company Extract – Chemoil Pty Ltd (DRGD)

9. Seventeen (17) documents sent to Russell & Cohen from Chemoil

[pic]A S I C

STATEMENT OF FACTS

DEFENDANTS: (1) David MCLEOD

(2) Yvonne MCLEOD

ADDRESS: (1) 18 Hamilton Street, REDLAND BAY QLD 4165

(2)18 Hamilton Street, REDLAND BAY QLD 4165

DATE OF BIRTH: (1) 30 April 1933

(2) 21 August 1955

COMPANY: (1) Chemoil Pty Ltd (Deregistered)

(2) Chemoil Pty Ltd (Deregistered)

OFFENCE: (1) Carrying on business using "Proprietary" and "Limited"

(2) Carrying on business using "Proprietary" and "Limited"

LAW: (1) Sections 156 Corporations Act 2001

(2) Sections 156 Corporations Act 2001

MAXIMUM

PENALTY: (1) 10 Penalty Units and/or 3 Months Imprisonment

(2) 10 Penalty Units and/or 3 Months Imprisonment

Australian Securities & Investments Commission 29 January 2003

1. On 12 May 1995 Chemoil Pty Ltd ACN 064 650 906 ("Chemoil") was incorporated as an Australian company.

2. On 18 February 2002 Chemoil was deregistered under section 601AB of the Corporations Act 2001.

3. In February, March, May and July 2002 Russell & Cohen purchased empty drums to the value of $56,500.

4. Dianne Russell, the proprietor of Russell & Cohen, had concerns about the dealings she was having with Chemoil. Because of this, she decided to contact a shareholder of the company to assess it's situation.

5. During the course of the search she discovered that Chemoil was in fact deregistered.

6. During the course of the transactions Russell & Cohen received 17 documents with the words "Chemoil Pty Ltd" at the top of the page. These documents include tax invoices, facsimiles and statements. Some of these documents also had the ACN 064 650 906 printed on it.

7. On one of these documents, David McLeod has signed the document as Director.

8. A warning letter was sent to David McLeod on 16 January 2003 requesting an explanation to the conduct and to advise ASIC of what action he was going to take to rectify it. To date, no reply has been received.

PROOF OF ELEMENTS

CHARGE

Section 156 [Carrying on business using "Limited", "No Liability" or "Proprietary" in name]

A person must not carry on business under a name or title that;

a) has the words "Limited" or "No Liability" (or an abbreviation of the words) at the end; or

b) includes the words "Proprietary" (or any abbreviation of it);

unless allowed or required to do so under Australian law.

Penalty: 10 penalty units or imprisonment for 3 months, of both.

ELEMENTS & PROOF

Section 156

|Element |Proof |

|A person |David & Yvonne McLeod former directors of now deregistered company "Chemoil Pty Ltd". |

| |Evidence: ASIC database extract/docimage |

| |Statement from Dianne Jervis who had dealings with company and produced several documents showing |

| |the use of Pty Ltd |

| |Evidence: 16 documents |

|must not carry on business |The produced documents and statement clearly show that business was being carried on. |

|under a name or title that has the words |Pty Ltd features on every document. |

|"Limited" or "No Liability" (or an | |

|abbreviation of those words) or the word | |

|"Proprietary" (or any abbreviation of it)| |

|unless allowed or required to do so under|The company is not registered. |

|Australian law |Evidence: ASIC database extract/docimage |

WITNESS & EXHIBIT LIST

Witness Statements

Folio Barcode Title

4 . C00060232 Statement of Richard Webb

5. C00060233 Statement of Dianne Jervis

Exhibits

Folio Barcode Description

6. C00060230 Certificate as to the Holding of the Office of Director (Yvonne McLeod)

7. C00060231 Certificate as to the Holding of the Office of Director (David McLeod)

8. C00060229 Company Extract – Chemoil Pty Ltd (DRGD)

9. C00060234 Warning letter sent by ASIC to David McLeod regarding use of Pty Ltd.

10. C00060212 Letter from Chemoil to Russell & Cohen dated 18 December 2002

11. C00060213 Fax from Chemoil to Russell & Cohen dated 20 November 2002

12. C00060214 Statement from Chemoil to Russell & Cohen dated 16 July 2002

13. C00060215 Fax from Chemoil to Russell & Cohen dated 29 September 2002

14. C00060216 Statement from Chemoil to Russell & Cohen dated 16 July 2002

15. C00060217 Tax invoice from Chemoil to Russell & Cohen dated 16 July 2002

16. C00060218 Fax from Chemoil to Russell & Cohen dated 25 June 2002

17. C00060219 Tax invoice from Chemoil to Russell & Cohen dated 19 June 2002

18. C00060220 Tax invoice from Chemoil to Russell & Cohen dated 24 May 2002

19. C00060221 Fax from Chemoil to Russell & Cohen dated 23 May 2002

20. C00060222 Tax invoice from Chemoil to Russell & Cohen dated 28 March 2002

21. C00060223 Tax invoice from Chemoil to Russell & Cohen dated 28 March 2002

22. C00060224 Fax from Chemoil to Russell & Cohen dated 28 March 2002

23. C00060225 Fax from Chemoil to Russell & Cohen dated 20 February 2002

24. C00060226 Tax invoice from Chemoil to Russell & Cohen dated 20 February 2002

25. C00060227 Fax from Chemoil to Russell & Cohen dated 19 February 2002

26. C00060228 Fax from Chemoil to Russell & Cohen dated 19 February 2002

[pic]

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

|Statement in the matter of: |Place: NSW |

|ASIC -v- David and Yvonne MCLEOD | |

|Name: Dianne Jervis |Date: |

1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness.

The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything, which I know to be false or do not believe to be true.

2. My full name is Dianne Jervis.

3. I am 52 years of age.

4. I am currently operating a partnership, Dianne & Norman Brian Jervis trading as Russell & Cohen. This business has been operating since 1996.

5. In February, March, May and July 2002 Russell & Cohen purchased empty drums from a company called Chemoil Pty Ltd ("Chemoil").

6. During this time, I became concerned with the dealings of Chemoil. This arose because we discovered we might have been overcharged for the drums. Over this period of time we purchased $56,500 worth of empty drums.

7. I decided to contact a shareholder of Chemoil to check if they were aware of any problems with the company. As such, I performed a search to get a list of the shareholders of the company. During this search, I discovered that Chemoil was deregistered.

8. I can confirm that the dealings with Chemoil have been with persons I know as David McLeod and Yvonne McLeod.

9. During our dealings with Chemoil we have received 17 documents from them including tax invoices, facsimiles and statements. On each of these documents, near the top of the page, appear the words "Chemoil Pty Ltd". In some cases the ACN and ABN also appear. Of these documents, 5 are signed by David McLeod, 4 are signed by Yvonne McLeod are the remainder are not signed.

I NOW PRODUCE A LETTER FROM CHEMOIL – [ASIC Barcode C00060212]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060213]

I NOW PRODUCE A STATEMENT – [ASIC Barcode C00060214]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060215]

I NOW PRODUCE A STATEMENT FROM CHEMOIL – [ASIC Barcode C00060216]

I NOW PRODUCE A TAX INVOICE ISSUED BY CHEMOIL – [ASIC Barcode C00060217]

I NOW PRODUCE A STATEMENT FROM CHEMOIL – [ASIC Barcode C00060218]

I NOW PRODUCE A TAX INVOICE ISSUED BY CHEMOIL – [ASIC Barcode C00060219]

I NOW PRODUCE A TAX INVOICE ISSUED BY CHEMOIL – [ASIC Barcode C00060220]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060221]

I NOW PRODUCE A TAX INVOICE ISSUED BY CHEMOIL – [ASIC Barcode C00060222]

I NOW PRODUCE A TAX INVOICE ISSUED BY CHEMOIL – [ASIC Barcode C00060223]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060224]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060225]

I NOW PRODUCE A TAX INVOICE ISSUED BY CHEMOIL – [ASIC Barcode C00060226]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060227]

I NOW PRODUCE A FAX FROM CHEMOIL – [ASIC Barcode C00060228]

10. I note that the letter from Chemoil dated 18 December 2002 [ASIC Barcode C00060212] is signed by David McLeod citing his position as Director.

11. At the time of the transactions between Russell & Cohen and Chemoil, I was not aware that the company had been deregistered.

……………………………. ………………………………… ..……/………/2002

Signed Printed Name Date

……………………………. ………………………………… ..……/………/2002

Witness Printed Name Date

[pic]

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

|Statement in the matter of: |Place: Canberra |

|ASIC –v- David and Yvonne MCLEOD | |

|Name: Richard Bruce WEBB |Date: 4 February 2003 |

States:

1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness.

The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true

2. My full name is Richard Bruce WEBB.

3. Since May 2002 I have been employed by the Australian Securities and Investments Commission (hereinafter referred to as “ASIC”). I currently hold the position of Investigator within the Public and Commercial Services directorate.

4. Pursuant to section 102 of the Australian Securities and Investments Commission Act 2001 ("the Act"), I am delegated with all the powers and functions conferred on ASIC under Part 3 of the Act.

5. ASIC has a database whereby computer records are kept of, among other things, details of companies and related company directors.

6. I am an officer who ordinarily has access to the computer records of ASIC.

7. Since August 2002 I have made enquiries into a suspected breach of section 156 of the Corporations Act, namely carrying on business using "Limited", "No Liability" or "Proprietary" in name, in relation to Chemoil Pty Ltd ACN 064 650 906 ("Chemoil") (Deregistered), David McLeod and Yvonne McLeod.

8. ASIC records show that on 8 February 2002 Chemoil was deregistered.

9. On 16 January 2003 a letter was sent by ASIC to David McLeod at 18 Hamilton Street, REDLAND BAY QLD 4165. The letter outlined section 156 of the Corporations Act 2001 and requested that an explanation be provided as to the use of PTY LTD on company documents since the date of deregistration. To this date, no explanation has been forthcoming.

I NOW PRODUCE THAT LETTER – [ASIC BARCODE C00060234]

10. On 29 January 2003 I used the ASIC database to obtain a company extract for Chemoil. This extract shows Chemoil was deregistered on 8 February 2002.

I NOW PRODUCE THAT EXTRACT – [ASIC BARCODE C00060229]

9. On 29 January 2003 I obtained a Certificate as to the Holding of the Office of Director in relation to Yvonne McLeod being a Director of Chemoil from 18 May 1994 to 8 February 2002, the date on which Chemoil was deregistered.

I NOW PRODUCE THAT CERTIFICATE – [ASIC BARCODE C00060230]

10. On 29 January 2003 I obtained a Certificate as to the Holding of the Office of Director in relation to David McLeod being a Director of Chemoil from 22 December 1995 to 8 February 2002, the date on which Chemoil was deregistered.

I NOW PRODUCE THAT CERTIFICATE – [ASIC BARCODE C00060231]

……………………………. ………………………………… ..……/………/2003

Signed Printed Name Date

……………………………. ………………………………… ..……/………/2003

Witness Printed Name Date

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download