Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 69

Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 69

Standard procedure dictates examination applications by liquidators are ex parte; no exceptional circumstances justifying a departure were shown by the applicants. The undertakings/agreements offered are insufficient to guarantee the SPL’s ability to commence s.588FF(1) proceedings after the already-extended limitation period, as only court orders under s.588FF(3) can extend time and no further extension is available. Applicants’ arguments regarding need to be heard or access to confidential evidence filed in support were either premature or unsupported by legal principle. Their applications for leave to be heard and for access to affidavits were dismissed; SPL’s main application to be...

Jurisdiction
Australia
Judgment Date
14 February 2007
Procedural Posture
Corporations – Winding Up – Liquidator's Application and Interlocutory Proceedings / Interlocutory Applications for Leave to Be Heard and for Access to Affidavit on Ex Parte Examination Application
Outcome
Applications by prospective examinees for leave to be heard and for access to the affidavit are dismissed with costs.
Legal Topics
['liquidators’ Powers' 'public Examinations' 'limitation Periods' 'extension of Time' 'application of S.588 Ff(3) Corporations Act' 'orders for Access to Affidavit' 'procedural Fairness in Examinations']
['corporations Law' 'insolvency Law' 'civil Procedure'] ['liquidators’ Powers' 'public Examinations' 'limitation Periods' 'extension of Time' 'application of S.588 Ff(3) Corporations Act' 'orders for Access to Affidavit' 'procedural Fairness in Examinations']

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Procedural Posture

Corporations – Winding Up – Liquidator's Application and Interlocutory Proceedings / Interlocutory Applications for Leave to Be Heard and for Access to Affidavit on Ex Parte Examination Application

Legal Issues

  1. 1 ['Whether prospective examinees (applicants) should be granted leave to be heard on the special purpose liquidator’s (SPL) application for examination summonses under ss.596A and 596B of the Corporations Act' "Whether applicants should be granted access to the SPL's affidavit filed pursuant to s.596C(1) Corporations Act in support of the application for the issue of examination summonses under s.596B" "Whether undertakings or agreements not to plead reliance on limitation periods are sufficient to preserve the SPL's ability to pursue proceedings under s.588FF(1) after expiration of extension under s.588FF(3), or whether a further extension of time can be granted" "Whether circumstances are exceptional to depart from standard ex parte procedure for liquidator's examination applications"]

Ratio Decidendi

Standard procedure dictates examination applications by liquidators are ex parte; no exceptional circumstances justifying a departure were shown by the applicants. The undertakings/agreements offered are insufficient to guarantee the SPL’s ability to commence s.588FF(1) proceedings after the already-extended limitation period, as only court orders under s.588FF(3) can extend time and no further extension is available. Applicants’ arguments regarding need to be heard or access to confidential evidence filed in support were either premature or unsupported by legal principle. Their applications for leave to be heard and for access to affidavits were dismissed; SPL’s main application to be...

Court Disposition

Applications by prospective examinees for leave to be heard and for access to the affidavit are dismissed with costs.

Orders

  • ['Order that the interlocutory process of Martin Green and Darren Miller filed on 29 January 2007 be dismissed with costs.' 'Order that the interlocutory process of News Limited, John Hartigan, Peter Macourt and Ian Philip filed on 29 January 2007 be dismissed with costs.' 'Order that the amended interlocutory...