In the matter of Iconic Constructions Australia (NSW) Pty Ltd (in liquidation) [2020] NSWSC 834

In the matter of Iconic Constructions Australia (NSW) Pty Ltd (in liquidation) [2020] NSWSC 834

The Equity Proceedings were not material matters requiring disclosure because there was no real prospect of overlap between their subject matter and the Liquidator's proposed examination of Mr El-Cheikh. The examination was directed to investigating withdrawals of cash from Iconic NSW and Mr El-Cheikh's possible role in its management, while the Equity Proceedings concerned alleged joint venture, property funding and loan matters involving other parties. Common representation and the existence of litigation involving a major creditor did not, without real overlap, create a material matter whose non-disclosure justified setting aside the examination summons.

Jurisdiction
Australia
Judgment Date
29 June 2020
Procedural Posture
CORPORATIONS – Examinations Relating to Insolvency – Whether Examination Orders Should Be Set Aside for Non Disclosure / Interlocutory Process to Set Aside an Examination Order Dated 6 December 2019, as Amended on 24 June 2020
Outcome
Application dismissed. Costs order made.
Legal Topics
['examination Summons' "liquidator's Examination" 'non Disclosure' 'full and Frank Disclosure' 'improper Purpose' 'costs']
['corporations' 'insolvency' 'equity'] ['examination Summons' "liquidator's Examination" 'non Disclosure' 'full and Frank Disclosure' 'improper Purpose' 'costs']

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Procedural Posture

CORPORATIONS – Examinations Relating to Insolvency – Whether Examination Orders Should Be Set Aside for Non Disclosure / Interlocutory Process to Set Aside an Examination Order Dated 6 December 2019, as Amended on 24 June 2020

Legal Issues

  1. 1 ['Whether the examination order made under s 596B of the Corporations Act 2001 (Cth) should be set aside because the Liquidator did not disclose the existence of the Equity Proceedings to the registrar.' 'Whether the existence of the Equity Proceedings, common representation, and alleged overlap with the proposed examination were material matters requiring disclosure.' 'What costs order should be made following dismissal of the application.']

Ratio Decidendi

The Equity Proceedings were not material matters requiring disclosure because there was no real prospect of overlap between their subject matter and the Liquidator's proposed examination of Mr El-Cheikh. The examination was directed to investigating withdrawals of cash from Iconic NSW and Mr El-Cheikh's possible role in its management, while the Equity Proceedings concerned alleged joint venture, property funding and loan matters involving other parties. Common representation and the existence of litigation involving a major creditor did not, without real overlap, create a material matter whose non-disclosure justified setting aside the examination summons.

Court Disposition

Application dismissed. Costs order made.

Orders

  • ['The Interlocutory Process dated 18 June 2020 and filed 19 June 2020 by Mr Omar El-Cheikh is dismissed.' 'Mr Omar El-Cheikh pay the costs of the hearing today in respect of the application to set aside the examination summons.']