04-417 Father and son jailed for 18 months and fined $200,000 for contempt
Monday 20 December 2004
Mr Andrzej Janusz Michalik, also known as Andre Tomaszewski and Stanislaw Konstanty Krawczyk, and his son, Mr Martin Michalik (the Michaliks) were jailed for 18 months and fined $200,000 in the New South Wales Supreme Court today in relation to contempt charges brought by the Australian Securities and Investments Commission (ASIC). This followed their arrest at Perth International Airport on Saturday 27 November 2004 and subsequent extradition to New South Wales.
The Michaliks were convicted on contempt of several Supreme Court orders (the orders) made in August and November 2004 and sentenced to 18 months each in respect of each contempt charge, to be served concurrently with a non-parole period of 12 months. Justice Palmer also fined Mr Andrzej Michalik $10,000 on each of the 12 contempt charges for which he was convicted and Mr Martin Michalik $10,000 on each of the eight charges for which he was convicted. ASIC was also awarded its costs for the contempt proceedings on an indemnity basis.
The Michaliks pleaded guilty to contravening the orders in that:
- Mr Andrzej Michalik transferred $112,000 from Australia to Singapore;
- the Michaliks transferred $100,000 from one account to a credit card account and the Michaliks between them drew down $90,000 of these funds over a two day period;
- the Michaliks transferred $295,000 from an account in Sydney to an account in Hong Kong;
- Mr Andrzej Michalik transferred $280,000 from an account in Sydney to an account in Hong Kong;
- Mr Martin Michalik transferred $60,000 from an account in Sydney to an account in Hong Kong;
- the Michaliks failed to surrender their new Australian and Polish passports to the Court;
- the Michaliks left New South Wales; and
- the Michaliks came within 200 metres of a point of overseas departure, namely Perth International Airport and attempted to board a Qantas flight to Singapore.
In sentencing the Michaliks, Justice Palmer indicated that it was difficult to imagine a more serious, flagrant and calculated contempt of the Court’s orders. In passing the sentence he noted that there was no evidence before the Court to explain or mitigate the Michaliks’ conduct.
ASIC’s Executive Director of Enforcement, Ms Jan Redfern said the penalty imposed illustrated that breaching court orders was a very serious matter that neither the courts or ASIC viewed lightly.
‘ASIC will continue to pursue those who blatantly act in contempt, and in doing so, potentially hamper our ability to carry out investigations’, Ms Redfern said.
Background
Earlier this year the Michaliks were restrained from leaving New South Wales or Australia on the basis of an ongoing investigation by ASIC.
ASIC is investigating the Michaliks’ alleged involvement in an unlicensed financial services business that offered people early access to their superannuation funds, by advertising in local newspapers. The advertisements were usually placed under the heading ‘Superannuation Cashback’, with the sub-headings ‘Having financial difficulties? Need money for medical expenses? Rollover to any institution’.
The New South Wales Supreme Court made orders by consent on 16 August 2004 restraining the Michaliks and Kilahim Pty Ltd (Kilahim), a company controlled by the Michaliks, from carrying on a financial services business, as defined within the meaning of the Corporations Act 2001, dealing with or disposing of any money which they may hold on behalf of their clients, and dealing with or disposing of their own assets, except for the payment of ordinary living expenses and legal fees.
The Supreme Court made further orders since 16 August 2004 appointing a receiver over all the real and personal property of the Michaliks and Kilahim, the surrender of the Michaliks’ passports and orders restraining the Michaliks from leaving NSW or Australia.
ASIC’s investigation is continuing.
ASIC Website: Printed 11/21/2008
