Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2005] FCA 1224

Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2005] FCA 1224

The prospect of special leave being granted is not substantial but is ‘not insubstantial’; however, the balance of convenience – particularly the prejudice and extensive burden on the examinees if a stay is not granted – favours the applicant examinees, and thus the application for a stay pending the special leave application is granted.

Parties
Plaintiff (respondent): Wainter Pty Ltd; Examinee (applicant): Paul Dominic Evans; Examinee (applicant): David Woolfe
Jurisdiction
Australia
Judgment Date
31 August 2005
Procedural Posture
Application for Interlocutory (stay) Orders in a Corporate Liquidation Context / Hearing and Determination of Application for Stay Pending Special Leave Application to High Court
Outcome
Stay granted pending determination or finalisation of the special leave to appeal application
Legal Topics
Stay of Proceedings, Examination of Company Officers, Corporate Liquidation, Abuse of Process
Corporations Law Civil Procedure Stay of Proceedings Examination of Company Officers Corporate Liquidation Abuse of Process

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Parties

Wainter Pty Ltd

Plaintiff (respondent)

Paul Dominic Evans

Examinee (applicant)

David Woolfe

Examinee (applicant)

Procedural Posture

Application for Interlocutory (stay) Orders in a Corporate Liquidation Context / Hearing and Determination of Application for Stay Pending Special Leave Application to High Court

Legal Issues

  1. 1 Whether compliance with examination summonses should be stayed pending a special leave application to the High Court
  2. 2 Whether there is a substantial (or not insubstantial) prospect of special leave being granted
  3. 3 Appropriate balance of convenience for granting a stay in this context

Ratio Decidendi

The prospect of special leave being granted is not substantial but is ‘not insubstantial’; however, the balance of convenience – particularly the prejudice and extensive burden on the examinees if a stay is not granted – favours the applicant examinees, and thus the application for a stay pending the special leave application is granted.

Court Disposition

Stay granted pending determination or finalisation of the special leave to appeal application

Orders

  • Compliance with the summons dated 10 March 2004 addressed to Paul Dominic Evans be stayed pending the determination or finalisation of the application for special leave to appeal to the High Court, No. P32 of 2005, filed on 13 July 2005.
  • Compliance with the summons dated 10 March 2004 addressed to David Woolfe be stayed pending the determination or finalisation of the application for special leave to appeal to the High Court, No. P32 of 2005, filed on 13 July 2005.