In the matter of Iris Diversified Property Pty Ltd (in liq) [2019] NSWSC 1482

In the matter of Iris Diversified Property Pty Ltd (in liq) [2019] NSWSC 1482

Access to the liquidators' affidavit was refused because the Applicants did not identify a sufficient arguable basis to set aside the examination summonses, as distinct from the orders for production, and did not show that access to the affidavit was necessary to pursue or fairly determine any such challenge. The privilege and non-disclosure arguments were largely directed to the production orders, the evidence as to disclosure to the Registrar was unchallenged, and a single affidavit supporting both examinations and production orders remained protected by s 596C and r 11.3(7) unless the requirements for access were met.

Jurisdiction
Australia
Judgment Date
24 October 2019
Procedural Posture
Corporations Winding Up; Public Examination of Directors, Officers and Others / Interlocutory Application for Access Under R 11.3(7) of the Supreme Court (corporations) Rules 1999 (nsw) to an Affidavit in Support of Examination Summonses and Orders for Production
Outcome
Paragraph 6 of the Amended Interlocutory Process dated 14 October 2019 dismissed.
Legal Topics
['winding Up' 'public Examination' 'examination Summonses' 'orders for Production' 'inspection of Supporting Affidavit' 'legal Professional Privilege' 'ex Parte Orders']
['corporations' 'insolvency' 'civil Procedure' 'evidence'] ['winding Up' 'public Examination' 'examination Summonses' 'orders for Production' 'inspection of Supporting Affidavit' 'legal Professional Privilege' 'ex Parte Orders']

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Procedural Posture

Corporations Winding Up; Public Examination of Directors, Officers and Others / Interlocutory Application for Access Under R 11.3(7) of the Supreme Court (corporations) Rules 1999 (nsw) to an Affidavit in Support of Examination Summonses and Orders for Production

Legal Issues

  1. 1 ["Whether the Applicants should be granted access under r 11.3(7) of the Supreme Court (Corporations) Rules 1999 (NSW) to the liquidators' affidavit in support of examination summonses and orders for production." 'Whether the Applicants had identified an arguable basis to set aside the examination summonses, as distinct from the orders for production, and whether access to the affidavit was necessary for that issue to be fairly determined.' 'Whether a single affidavit supporting both examination summonses and orders for production was protected from inspection by s 596C of the Corporations Act 2001 (Cth) and r 11.3(7) unless the Court otherwise ordered.']

Ratio Decidendi

Access to the liquidators' affidavit was refused because the Applicants did not identify a sufficient arguable basis to set aside the examination summonses, as distinct from the orders for production, and did not show that access to the affidavit was necessary to pursue or fairly determine any such challenge. The privilege and non-disclosure arguments were largely directed to the production orders, the evidence as to disclosure to the Registrar was unchallenged, and a single affidavit supporting both examinations and production orders remained protected by s 596C and r 11.3(7) unless the requirements for access were met.

Court Disposition

Paragraph 6 of the Amended Interlocutory Process dated 14 October 2019 dismissed.

Orders

  • ['Paragraph 6 of the Amended Interlocutory Process filed 14 October 2019 should be dismissed.' "The Applicants must pay the liquidators' costs of and incidental to that paragraph of the Amended Interlocutory Process, including the costs of the hearing."]