In the matter of Owston Nominees No 2 Pty Limited (in liquidation) (receivers and managers appointed) [2013] NSWSC 538

In the matter of Owston Nominees No 2 Pty Limited (in liquidation) (receivers and managers appointed) [2013] NSWSC 538

The Court declined to grant injunctive relief because it was not necessary or appropriate to determine that the liquidator could not continue to retain Hudson Law for any future application if proper steps and disclosure were made. However, the summons for examination and orders for production were set aside because the supporting affidavit failed to disclose material matters relevant to the Registrar's decision, including Hudson Law's role for Mr Anderson, the Atom Trust issues, overlap with the Family Court proceedings, potential forensic advantage to Mr Anderson, and Mr Short's significant input into the draft orders for production. Although paragraphs 40-45 involved an objectively...

Jurisdiction
Australia
Judgment Date
10 May 2013
Procedural Posture
Interlocutory Applications in the Equity Division Corporations List Concerning Examination Summonses and Orders for Production Under Ss 596 a and 596 B of the Corporations Act 2001 (cth) / Application for Injunctive Relief Restraining the Liquidator From Engaging Hudson Law and for Orders Setting Aside a Summons for Examination and Orders for Production
Outcome
Injunctive relief not granted. Summons for examination set aside. Orders for production set aside.
Legal Topics
['winding Up' 'liquidators' 'examination Summons' 'orders for Production' 'conflict of Interest' 'improper Purpose' 'material Non Disclosure' 'ex Parte Disclosure Obligations']
['corporations' 'insolvency' 'civil Procedure' 'legal Professional Conduct'] ['winding Up' 'liquidators' 'examination Summons' 'orders for Production' 'conflict of Interest' 'improper Purpose' 'material Non Disclosure' 'ex Parte Disclosure Obligations']

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Procedural Posture

Interlocutory Applications in the Equity Division Corporations List Concerning Examination Summonses and Orders for Production Under Ss 596 a and 596 B of the Corporations Act 2001 (cth) / Application for Injunctive Relief Restraining the Liquidator From Engaging Hudson Law and for Orders Setting Aside a Summons for Examination and Orders for Production

Legal Issues

  1. 1 ['Whether the liquidator should be restrained from engaging Hudson Law to act in relation to any summons for examination under ss 596A and 596B of the Corporations Act 2001 (Cth).' 'Whether Hudson Law should be restrained from acting for the liquidator because it also acted for Mr Anderson in Family Court proceedings involving opposed interests.' 'Whether the summons for examination addressed to Mr Hower and orders for production addressed to Angas and MFM were issued for an improper purpose.' 'Whether material non-disclosure in the affidavit supporting the application for the examination summons and orders for production required those orders to be set aside.']

Ratio Decidendi

The Court declined to grant injunctive relief because it was not necessary or appropriate to determine that the liquidator could not continue to retain Hudson Law for any future application if proper steps and disclosure were made. However, the summons for examination and orders for production were set aside because the supporting affidavit failed to disclose material matters relevant to the Registrar's decision, including Hudson Law's role for Mr Anderson, the Atom Trust issues, overlap with the Family Court proceedings, potential forensic advantage to Mr Anderson, and Mr Short's significant input into the draft orders for production. Although paragraphs 40-45 involved an objectively...

Court Disposition

Injunctive relief not granted. Summons for examination set aside. Orders for production set aside.

Orders

  • ['The Summons for Examination dated 6 March 2013 addressed to Matthew John Hower be set aside.' 'The Orders for Production dated 6 March 2013 addressed to the proper officers of Angas Securities Limited and Mortgage Funds Management Limited respectively be set aside.' 'The Court will hear the parties as to costs.']