McGrath & Anor as Liquidators of HIH Insurance Ltd [2008] NSWSC 881

McGrath & Anor as Liquidators of HIH Insurance Ltd [2008] NSWSC 881

The persons resident in London may be able to give information about the examinable affairs of HIH because of their involvement in relevant 1998 and 1999 events, so examination summonses were appropriate under s 596B. Service outside Australia was also appropriate. The English court had jurisdiction under s 426 of the Insolvency Act 1986 (UK) to receive and act on a letter of request and was likely to do so, and the existence of the Model Law procedure did not prevent the liquidators from using the retained letter of request procedure. The Court therefore made the orders sought.

Jurisdiction
Australia
Judgment Date
26 August 2008
Procedural Posture
Liquidators' Application for Examination Summonses, Leave to Serve Outside Australia, and Issue of a Letter of Request / Application in the Equity Division, Corporations List
Outcome
Application granted; orders sought to be made.
Legal Topics
['winding Up' 'examination Summonses' 'service Outside Australia' 'letter of Request' 'judicial Assistance in Insolvency' 'uncitral Model Law on Cross Border Insolvency']
['corporations' 'insolvency' 'cross Border Insolvency' 'civil Procedure'] ['winding Up' 'examination Summonses' 'service Outside Australia' 'letter of Request' 'judicial Assistance in Insolvency' 'uncitral Model Law on Cross Border Insolvency']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Liquidators' Application for Examination Summonses, Leave to Serve Outside Australia, and Issue of a Letter of Request / Application in the Equity Division, Corporations List

Legal Issues

  1. 1 ['Whether examination summonses should issue under s 596B of the Corporations Act 2001 (Cth) to two persons resident in London.' 'Whether leave should be granted under rule 11.5 of the Uniform Civil Procedure Rules 2005 to serve the summonses in the United Kingdom.' 'Whether a letter of request should issue under s 581(4) of the Corporations Act 2001 (Cth) to the High Court of Justice of England and Wales for assistance in conducting examinations in London.' 'Whether the availability of a direct procedure under the Cross-Border Insolvency Regulations 2006 (UK) adopting the UNCITRAL Model Law on Cross Border Insolvency affected the appropriateness of using the letter of request procedure.']

Ratio Decidendi

The persons resident in London may be able to give information about the examinable affairs of HIH because of their involvement in relevant 1998 and 1999 events, so examination summonses were appropriate under s 596B. Service outside Australia was also appropriate. The English court had jurisdiction under s 426 of the Insolvency Act 1986 (UK) to receive and act on a letter of request and was likely to do so, and the existence of the Model Law procedure did not prevent the liquidators from using the retained letter of request procedure. The Court therefore made the orders sought.

Court Disposition

Application granted; orders sought to be made.

Orders

  • ['Orders for issue of examination summonses directed to two persons resident in London.' 'Order under rule 11.5 of the Uniform Civil Procedure Rules 2005 granting leave to serve each summons in the United Kingdom.' 'Order for issue pursuant to s 581(4) of the Corporations Act 2001 (Cth) of a letter of request...