Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864

Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864

Because each of Song Sook Lee, Jong Moon Lee and Bum Mo Lee had been summoned or effectively served with a summons to attend examination, was on notice of the substituted or adjourned examination date of 23 August 2005, failed to attend, and gave no reasonable cause for non-attendance, the preconditions in Supreme Court (Corporations) Rules 1999 r.11.10 were satisfied. The discretionary factors favoured immediate issue of warrants because the summonses should be enforced, compliance with Court orders was important, reasonable steps had been taken to secure attendance without arrest, and the attendance burden was not shown to be oppressive.

Jurisdiction
Australia
Judgment Date
24 August 2005
Procedural Posture
Corporations External Administration; Liquidator's Examination / Ex Parte Interlocutory Application for Warrants for Arrest After Examinees Failed to Attend Examination Summonses
Outcome
Warrants ordered to issue for the arrest of Song Sook Lee, Jong Moon Lee and Bum Mo Lee; notice to be served on their solicitor; leave reserved to apply to dissolve the warrant order; further hearing adjourned.
Legal Topics
['external Administration' 'winding Up' "liquidator's Examination" 'examination Summons' 'warrant for Arrest' 'ex Parte Application' 'failure to Attend Court']
['corporations' 'civil Procedure'] ['external Administration' 'winding Up' "liquidator's Examination" 'examination Summons' 'warrant for Arrest' 'ex Parte Application' 'failure to Attend Court']

Case Brief

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Procedural Posture

Corporations External Administration; Liquidator's Examination / Ex Parte Interlocutory Application for Warrants for Arrest After Examinees Failed to Attend Examination Summonses

Legal Issues

  1. 1 ['Whether each examinee had been summoned or ordered by the Court to attend for examination.' 'Whether each examinee failed to attend at the time and place appointed or failed to attend from day to day until the conclusion of the examination.' 'Whether the failures to attend were without reasonable cause.' 'Whether the Court should exercise its discretion to issue warrants for arrest under Supreme Court (Corporations) Rules 1999 r.11.10.' 'Whether the application could be determined ex parte and whether issue or execution of the warrants should be deferred or conditioned on security.']

Ratio Decidendi

Because each of Song Sook Lee, Jong Moon Lee and Bum Mo Lee had been summoned or effectively served with a summons to attend examination, was on notice of the substituted or adjourned examination date of 23 August 2005, failed to attend, and gave no reasonable cause for non-attendance, the preconditions in Supreme Court (Corporations) Rules 1999 r.11.10 were satisfied. The discretionary factors favoured immediate issue of warrants because the summonses should be enforced, compliance with Court orders was important, reasonable steps had been taken to secure attendance without arrest, and the attendance burden was not shown to be oppressive.

Court Disposition

Warrants ordered to issue for the arrest of Song Sook Lee, Jong Moon Lee and Bum Mo Lee; notice to be served on their solicitor; leave reserved to apply to dissolve the warrant order; further hearing adjourned.

Orders

  • ['That pursuant to Supreme Court (Corporations) Rules, rule 11.10(2) a warrant issue addressed to the Sheriff to arrest each of the persons named in the schedule to this order and to bring that person before the court to be examined under Corporations Act, S.596B on oath or affirmation about the examinable affairs...