Sutherland v Pascoe; in the matter of Matrix Group Limited as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 [2012] FCA 453

Sutherland v Pascoe; in the matter of Matrix Group Limited as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 [2012] FCA 453

The applicants established a good, arguable case of potential abuse of process, res judicata, or related estoppel due to the overlap between subject matter of previous Supreme Court proceedings and the current examinations. Access to the liquidator's affidavit will assist in determining the correctness of the applicants' challenge to the examination orders, and the Court's discretion should be exercised to permit inspection.

Parties
Plaintiff/respondent: Scott Darren Pascoe in his capacity as liquidator of Matrix Group Limited as trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371; First Applicant: Andrew Paul Tennent Sutherland; Second Applicant: Garrick Michael Hawkins; Third Applicant: Evelyn Hawkins; Fourth Applicant: Gillian Tyne; Fifth Applicant: Alexandra Hawkins
Jurisdiction
Australia
Judgment Date
18 April 2012
Procedural Posture
Interlocutory Application / Application for Access to Affidavit Supporting Examination Orders
Outcome
Application granted – orders made for access to the liquidator's affidavit subject to confidentiality and procedural controls.
Legal Topics
Examination Orders, Res Judicata, Issue Estoppel, Abuse of Process, Disclosure of Affidavits
Corporations Law Insolvency Civil Procedure Examination Orders Res Judicata Issue Estoppel Abuse of Process Disclosure of Affidavits

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Parties

Scott Darren Pascoe in his capacity as liquidator of Matrix Group Limited as trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371

Plaintiff/respondent

Andrew Paul Tennent Sutherland

First Applicant

Garrick Michael Hawkins

Second Applicant

Evelyn Hawkins

Third Applicant

Gillian Tyne

Fourth Applicant

Alexandra Hawkins

Fifth Applicant

Procedural Posture

Interlocutory Application / Application for Access to Affidavit Supporting Examination Orders

Legal Issues

  1. 1 Whether the examinees should be granted access to the affidavit relied on by the liquidator in obtaining examination orders under s 596B of the Corporations Act 2001 (Cth)
  2. 2 Whether the examination orders and document production orders should be set aside on the basis of abuse of process, res judicata, issue estoppel or Anshun estoppel arising from the dismissal of related Supreme Court proceedings

Ratio Decidendi

The applicants established a good, arguable case of potential abuse of process, res judicata, or related estoppel due to the overlap between subject matter of previous Supreme Court proceedings and the current examinations. Access to the liquidator's affidavit will assist in determining the correctness of the applicants' challenge to the examination orders, and the Court's discretion should be exercised to permit inspection.

Court Disposition

Application granted – orders made for access to the liquidator's affidavit subject to confidentiality and procedural controls.

Orders

  • A copy of the exhibit and affidavits (the Confidential Material) be delivered to Mr Doble by 5.00 p.m. on 19 April 2012.
  • Access to the Confidential Material restricted to counsel for the Applicants and Mr Mark Doble, solicitor at Eakin McCaffrey Cox, until further order or written consent of the Respondent.