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16-338MR ASIC takes civil action against Ben Jayaweera and Growth Plus Financial Group Pty Ltd (in liquidation)
ASIC has commenced civil proceedings in the Supreme Court of Queensland against Ben Jayaweera and Growth Plus Financial Group Pty Ltd (in liquidation) (Growth Plus).
On 11 March 2016 the Australian Taxation Office wound up Growth Plus in relation to unpaid debts. Andrew Fielding and Matthew Joiner of BDO were appointed the liquidators of Growth Plus (the Liquidators)
ASIC is seeking declarations that Growth Plus is the trustee of the Australian Diversified Sector Income Fund (ADSIF) and that prior to being wound up, Growth Plus had contravened the Corporations Act by issuing units in the ADSIF contrary to the authorisation of its Australian Financial Services licence (AFS licence). ASIC also alleges that Mr Jayaweera was knowingly concerned in Growth Plus's contravention.
ASIC is also seeking a number of injunctions in relation to Mr Jayaweera's continuing involvement in ADSIF, and on 26 September obtained interim injunctions whereby the Court ordered that Mr Jayaweera:
- be restrained from carrying on a financial services business in this jurisdiction without an AFS licence;
- be restrained from managing, directing, controlling or otherwise operating the ADSIF;
- be restrained from selling or otherwise disposing of the property of ADSIF or the ADSIF companies.
- be restrained from receiving any benefit or other payment from or by any person in relation to any activities of the ADSIF Companies, other than reasonable travel and accommodation expenses, by providing Growth Plus and ASIC with seven days' notice of the expenditure, with supporting documentation evidencing the cost of the expenditure; and
- be restrained from obtaining funds by any means from individuals (including their superannuation funds) other than professional investors as defined in section 9 of the Act, for the purpose of applying those funds to or for the use of ADSIF or the ADSIF Companies, or any other company that provides funds to Ocean Abalone Australia.
The Court also ordered that certain books and records obtained by ASIC that relate to Growth Plus can be provided to Growth Plus at the Liquidators' request.
The matter has been adjourned until 10:00am on 17 October 2016.
ADSIF was an unregistered managed investment scheme operated by Growth Plus until its liquidation in March 2016. The underlying asset of ADSIF is an abalone farm located in South Australia.
The ADSIF Companies are: ADSIF, Growth Plus, Eyre Peninsula Aquaculture Pty Ltd, Laura Cove Australia Pty Ltd, GP NO 3 Pty Ltd, GP NO 4 Pty Ltd, GP NO 5 Pty Ltd, Ocean Abalone Australia No 1 Pty Ltd, Ocean Abalone Australia No 2 Pty Ltd, Ocean Abalone Australia No 3 Pty Ltd, Ocean Australia Food Pty Ltd and ADSIF Pty Ltd).
The 17 October 2016 hearing was adjourned, by consent, until 15 November 2016.
Editor's note 2:
On 15 November 2016, the Supreme Court declared that Growth Plus is and was the trustee of ADSIF.
The matter has now been adjourned until 18 February 2017.
Editor's note 3:
A hearing is scheduled for 13 April 2017 ahead of the trial, which has been set down for 20 to 21 April 2017.
Editor's note 4:
The trial scheduled for 20 and 21 April has been adjourned until a date to be fixed.