Application of Robert William Whitton [2007] NSWSC 606

Application of Robert William Whitton [2007] NSWSC 606

Leave was granted to serve the examination summons and order for production outside Australia as Mr Prider was a relevant officer of the company with sufficient connection to NSW; however, an arrest warrant for Mr Epton was refused because the required prescribed notice (Form 2) was not attached to the summons for examination, rendering service ineffective under the Service and Execution of Process Act 1992 (Cth).

Parties
Plaintiff: Robert William Whitton; Plaintiff: Hugh Sutcliffe Martin; Company: Zenith Developments Company (Australia) Pty Limited (in liquidation); Proposed Examinee: Ian Michael Prider; Proposed Examinee: Kim Alexander Epton
Jurisdiction
Australia
Judgment Date
28 May 2007
Procedural Posture
Corporations – Winding Up – Examination Summons / Interlocutory Application
Outcome
Plaintiffs granted leave to serve Mr Prider outside Australia; Mr Martin added as plaintiff; substituted service refused; application for arrest warrant refused.
Legal Topics
Examination Summons, Service Outside Australia, Substituted Service, Arrest Warrant, Creditors' Voluntary Winding Up
Corporations Civil Procedure Examination Summons Service Outside Australia Substituted Service Arrest Warrant Creditors' Voluntary Winding Up

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Parties

Robert William Whitton

Plaintiff

Hugh Sutcliffe Martin

Plaintiff

Zenith Developments Company (Australia) Pty Limited (in liquidation)

Company

Ian Michael Prider

Proposed Examinee

Kim Alexander Epton

Proposed Examinee

Procedural Posture

Corporations – Winding Up – Examination Summons / Interlocutory Application

Legal Issues

  1. 1 Whether leave should be granted to serve an examination summons and order for production outside Australia pursuant to r 11.5 of the Uniform Civil Procedure Rules 2005 (NSW)
  2. 2 Whether an order for substituted service should be made
  3. 3 Whether an arrest warrant should be issued for failure to attend examination

Ratio Decidendi

Leave was granted to serve the examination summons and order for production outside Australia as Mr Prider was a relevant officer of the company with sufficient connection to NSW; however, an arrest warrant for Mr Epton was refused because the required prescribed notice (Form 2) was not attached to the summons for examination, rendering service ineffective under the Service and Execution of Process Act 1992 (Cth).

Court Disposition

Plaintiffs granted leave to serve Mr Prider outside Australia; Mr Martin added as plaintiff; substituted service refused; application for arrest warrant refused.

Orders

  • Order that Hugh Sutcliffe Martin be added as a plaintiff and the originating process amended accordingly.
  • Dispense with the requirement to file an amended originating process.