Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1021

Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1021

The summonses were not issued for an improper purpose warranting discharge because, applying Sandhurst Trustees Ltd v Harvey, Wainter's private forensic interest was not determinative. The proposed examinations could produce information about New Tel's solvency as at 27 November 2001 and related matters, potentially assisting the liquidators and ASIC, including in relation to possible insolvent trading, and could also potentially benefit other creditors if Wainter recovered from Freehills or its insurers. The examinations were therefore within the purposes contemplated by s 596A for Mr Malone and Mr Evans and s 596B for Mr Woolfe. No sufficient onus was made out to discharge any summons...

Jurisdiction
Australia
Judgment Date
06 August 2004
Procedural Posture
Corporations Matter; Applications to Discharge Examination Summonses / Interlocutory Applications Under R 11.5 of the Federal Court (corporations) Rules 2000
Outcome
The three interlocutory applications to discharge the examination summonses were refused.
Legal Topics
['examination Summonses' 'improper Purpose' 'abuse of Process' 'examinable Affairs' 'liquidation' 'insolvent Trading Investigations']
['corporations Law' 'insolvency' 'civil Procedure'] ['examination Summonses' 'improper Purpose' 'abuse of Process' 'examinable Affairs' 'liquidation' 'insolvent Trading Investigations']

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Procedural Posture

Corporations Matter; Applications to Discharge Examination Summonses / Interlocutory Applications Under R 11.5 of the Federal Court (corporations) Rules 2000

Legal Issues

  1. 1 ['Whether the examination summonses issued to Mr Malone, Mr Evans and Mr Woolfe should be discharged under r 11.5 of the Federal Court (Corporations) Rules 2000.' 'Whether Wainter sought the examination summonses for an improper purpose by using them to advance its own foreshadowed claims against Freehills, Mr Woolfe and Mr Malone.' 'Whether the proposed examinations were within the purposes contemplated by s 596A and s 596B of the Corporations Act 2001 (Cth).' 'Whether the summonses were oppressive in relation to production of documents.']

Ratio Decidendi

The summonses were not issued for an improper purpose warranting discharge because, applying Sandhurst Trustees Ltd v Harvey, Wainter's private forensic interest was not determinative. The proposed examinations could produce information about New Tel's solvency as at 27 November 2001 and related matters, potentially assisting the liquidators and ASIC, including in relation to possible insolvent trading, and could also potentially benefit other creditors if Wainter recovered from Freehills or its insurers. The examinations were therefore within the purposes contemplated by s 596A for Mr Malone and Mr Evans and s 596B for Mr Woolfe. No sufficient onus was made out to discharge any summons...

Court Disposition

The three interlocutory applications to discharge the examination summonses were refused.

Orders

  • ['The interlocutory application on behalf of Mr Malone dated 22 March 2004 to discharge the summons for examination by the plaintiff Wainter dated 10 March 2004 be refused.' 'The interlocutory application on behalf of Messrs Woolfe and Evans dated 18 March 2004 to discharge the summonses for examination by the...