In the matter of Courtenay House Capital Trading Group Pty Ltd (in liq) [2018] NSWSC 604

In the matter of Courtenay House Capital Trading Group Pty Ltd (in liq) [2018] NSWSC 604

Special circumstances were not established. Although the Court proceeded on the basis that serious criminal charges were likely or nearly inevitable, Mr Iervasi had not been charged, any prosecution and trial were likely to be distant, there was already substantial adverse publicity, and ordinary criminal trial mechanisms including jury selection, directions to jurors and the possibility of a judge-alone trial could address risks to a fair trial. The public interest and statutory default in favour of public liquidator examinations were not displaced.

Jurisdiction
Australia
Judgment Date
04 May 2018
Procedural Posture
Corporations Winding Up; Liquidator's Examination / Interlocutory Process Seeking Orders That a Liquidator's Examination Be Held in Private and Related Suppression or Non Publication Orders
Outcome
Interlocutory process dismissed with costs payable by Mr Iervasi to the liquidators.
Legal Topics
['winding Up' "liquidator's Examination" 'public Examination' 'special Circumstances' 'fair Trial Prejudice' 'use Immunity' 'media Publicity']
['corporations' 'civil Procedure' 'suppression and Non Publication Orders' 'criminal Procedure'] ['winding Up' "liquidator's Examination" 'public Examination' 'special Circumstances' 'fair Trial Prejudice' 'use Immunity' 'media Publicity']

Case Brief

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Procedural Posture

Corporations Winding Up; Liquidator's Examination / Interlocutory Process Seeking Orders That a Liquidator's Examination Be Held in Private and Related Suppression or Non Publication Orders

Legal Issues

  1. 1 ["Whether special circumstances under s 597(4) of the Corporations Act 2001 (Cth) justified holding Mr Iervasi's liquidator's examination in private." 'Whether anticipated publicity of compelled questions and answers could prejudice a possible future criminal jury trial.' 'Whether ancillary orders concerning transcription, authentication, suppression or non-publication should be made.']

Ratio Decidendi

Special circumstances were not established. Although the Court proceeded on the basis that serious criminal charges were likely or nearly inevitable, Mr Iervasi had not been charged, any prosecution and trial were likely to be distant, there was already substantial adverse publicity, and ordinary criminal trial mechanisms including jury selection, directions to jurors and the possibility of a judge-alone trial could address risks to a fair trial. The public interest and statutory default in favour of public liquidator examinations were not displaced.

Court Disposition

Interlocutory process dismissed with costs payable by Mr Iervasi to the liquidators.

Orders

  • ['Dismiss the interlocutory process filed this afternoon.' "Grant the parties liberty to apply to my Associate in the first instance on short notice for the period of the next seven days and thereafter on 24 hours' notice to the Company Judge." "The first defendant, Mr Iervasi, to pay the liquidators' costs of the...