In the matter of LKM Capital Limited (receivers and managers appointed) ACN 091 379 930 [2013] NSWSC 1744

In the matter of LKM Capital Limited (receivers and managers appointed) ACN 091 379 930 [2013] NSWSC 1744

The Court extended time because the required extension was only four business days, the summons had still been issued and served more than eight days before its return date, and no prejudice was shown. Access to the supporting affidavit was refused because, although an arguable case for setting aside was assumed, there was no significant factual dispute about the purpose of the summons and access would not assist. The examination summons was not an abuse of process because obtaining information about whether Sandhurst breached its duties as trustee and whether viable causes of action existed was squarely within the examinable affairs of LKM and was of interest to debenture holders...

Jurisdiction
Australia
Judgment Date
23 October 2013
Procedural Posture
Interlocutory Applications in the Equity Division Corporations List / Application to Set Aside an Order for Production, Obtain Leave to Inspect a Supporting Affidavit, Extend Time to Apply to Discharge an Examination Summons, and Discharge the Examination Summons
Outcome
Extension of time granted; interlocutory process otherwise dismissed with costs; time for production extended; examinations vacated with leave to obtain and amend to a new examination date.
Legal Topics
['examination Summons' 'order for Production' 'extension of Time' 'access to Supporting Affidavit' 'abuse of Process' 'oppression' 'debenture Trustee Duties']
['corporations Law' 'civil Procedure'] ['examination Summons' 'order for Production' 'extension of Time' 'access to Supporting Affidavit' 'abuse of Process' 'oppression' 'debenture Trustee Duties']

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Procedural Posture

Interlocutory Applications in the Equity Division Corporations List / Application to Set Aside an Order for Production, Obtain Leave to Inspect a Supporting Affidavit, Extend Time to Apply to Discharge an Examination Summons, and Discharge the Examination Summons

Legal Issues

  1. 1 ['Whether time should be extended for the applicants to apply for an order discharging the examination summons under (NSW) Supreme Court (Corporations) Rules 1999 r 11.5(2).' 'Whether the applicants should have leave to inspect the affidavit filed in support of the application for the examination summons and order for production.' 'Whether the examination summons was an abuse of process because it was sought predominantly for an improper purpose.' 'Whether the order for production should be set aside as oppressive.']

Ratio Decidendi

The Court extended time because the required extension was only four business days, the summons had still been issued and served more than eight days before its return date, and no prejudice was shown. Access to the supporting affidavit was refused because, although an arguable case for setting aside was assumed, there was no significant factual dispute about the purpose of the summons and access would not assist. The examination summons was not an abuse of process because obtaining information about whether Sandhurst breached its duties as trustee and whether viable causes of action existed was squarely within the examinable affairs of LKM and was of interest to debenture holders...

Court Disposition

Extension of time granted; interlocutory process otherwise dismissed with costs; time for production extended; examinations vacated with leave to obtain and amend to a new examination date.

Orders

  • ['Order that the period of time for the applicant to apply for an order discharging the examination summons under r 11.5(2) of the Corporations Rules be extended to 3 October 2013.' 'Order that the interlocutory process be otherwise dismissed with costs.' 'Extend time for compliance with the order for production to...