Actwane Pty Limited (In Liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512

Actwane Pty Limited (In Liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512

Dr Larkin had been served with an examination summons on 20 December 2001 and failed to attend on 14 March 2002 while the summons remained extant and had not been set aside or stayed. His belief that the summons was an abuse of process, his late application to set it aside, difficulties obtaining legal advice, pending appeal or stay steps, and alleged absence of conduct money did not constitute reasonable cause for non-attendance. The Court therefore rejected the evidence and adjournment sought on those bases and, given the serious and deliberate disregard of an important court order, issued a warrant for arrest. After Dr Larkin voluntarily came to Court and proffered an undertaking to...

Jurisdiction
Australia
Judgment Date
15 March 2002
Procedural Posture
Corporations Examination Summons and Application for Arrest Warrant / Interlocutory Applications Concerning Admissibility of Evidence, Adjournment, Issue of Warrant for Arrest, and Discharge of Bench Warrant
Outcome
Paragraphs 7 and 12 of Dr Larkin's affidavit and exhibits SML1 to SML22 were rejected; the adjournment application was refused; a warrant for Dr Larkin's arrest was issued; after Dr Larkin came before the Court and an undertaking to attend examination was given on his behalf, the bench warrant was discharged and he...
Legal Topics
['examination Summons' 'receivers Managers and Controllers' 'reasonable Cause for Non Attendance' 'warrant for Arrest' 'adjournment' 'abuse of Process' 'undertaking to Attend Examination']
['corporations' 'insolvency' 'civil Procedure'] ['examination Summons' 'receivers Managers and Controllers' 'reasonable Cause for Non Attendance' 'warrant for Arrest' 'adjournment' 'abuse of Process' 'undertaking to Attend Examination']

Case Brief

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Procedural Posture

Corporations Examination Summons and Application for Arrest Warrant / Interlocutory Applications Concerning Admissibility of Evidence, Adjournment, Issue of Warrant for Arrest, and Discharge of Bench Warrant

Legal Issues

  1. 1 ["Whether paragraphs 7 and 12 of Dr Larkin's affidavit and exhibits SML1 to SML22 were admissible to show that he had a reasonable argument that the examination summons was an abuse of process." 'Whether Dr Larkin should be granted an adjournment to file further evidence on reasonable cause and discretionary matters.' "Whether Dr Larkin's failure to attend for examination was without reasonable cause under Rule 11.10 of the Corporations Law Rules." "Whether the Court should exercise its discretion to issue a warrant for Dr Larkin's arrest." 'Whether, after Dr Larkin came before the Court, he should be remanded in custody or released on an undertaking to attend the examination.']

Ratio Decidendi

Dr Larkin had been served with an examination summons on 20 December 2001 and failed to attend on 14 March 2002 while the summons remained extant and had not been set aside or stayed. His belief that the summons was an abuse of process, his late application to set it aside, difficulties obtaining legal advice, pending appeal or stay steps, and alleged absence of conduct money did not constitute reasonable cause for non-attendance. The Court therefore rejected the evidence and adjournment sought on those bases and, given the serious and deliberate disregard of an important court order, issued a warrant for arrest. After Dr Larkin voluntarily came to Court and proffered an undertaking to...

Court Disposition

Paragraphs 7 and 12 of Dr Larkin's affidavit and exhibits SML1 to SML22 were rejected; the adjournment application was refused; a warrant for Dr Larkin's arrest was issued; after Dr Larkin came before the Court and an undertaking to attend examination was given on his behalf, the bench warrant was discharged and he...

Orders

  • ['Paragraphs 7 and 12 of the affidavit of Stephen Michael Larkin rejected.' 'Tender of exhibits SML1 through to SML22 rejected.' 'Application for adjournment rejected.' 'Order made for issue of a warrant for the arrest of Stephen Michael Larkin.' 'Bench warrant discharged after an undertaking was given on behalf of...