Application of Robert William Whitton - [2007] NSWSC 606

CITATION: Application of Robert William Whitton [2007] NSWSC 606

HEARING DATE(S): 28/05/07

JUDGMENT DATE :
28 May 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 28 May 2007

DECISION: 1. Order that Hugh Sutcliffe Martin of Benardi Martin, Level 1, 195 Victoria Square, Adelaide, South Australia, be added as a plaintiff and that the originating process be taken to be amended accordingly;; 2. Dispense with the requirement to file and amended originating process;; 3. Grant leave to the plaintiffs pursuant to rule 11.5 of the Uniform Civil Procedure Rules 2005 (NSW) to serve a summons for examination and order for production dated 21/3/07 to Ian Michael Prider outside of Australia;; 4. Orders may be entered forthwith.

CATCHWORDS: CORPORATIONS – Winding up – Examination summons – Service outside Australia – Application for leave under r 11.5 of the Uniform Civil Procedure Rules 2005 (NSW) – Order does not constitute “originating process” – Leave of court given to serve former officer of company with summons for examination and order for production of documents. - PROCEDURE – Service – Substituted service – Application for order for substituted service of summons for examination and order for production of documents refused. - PROCEDURE – Service – Issue of warrant – Order for issue of arrest warrant sought for non-compliance with summons for examination – Whether service of summons for examination has been properly effected – Held that service ineffective due to failure to provide notice required by s 31, Service and Execution of Process Act 1992 (Cth) and r 4(1)(b) of the Service and Execution of Process Regulations 1993 (Cth) – Application refused. - (Cth) Corporations Act 2001, s 596A - (Cth) Service and Execution of Process Act 1992, s 32 - (Cth) Service and Execution of Process Regulations 1993, r 4(1)(b) - (NSW) Civil Procedure Act 2005, s 68 - (NSW) Uniform Civil Procedure Rules 2005, r 11.5

LEGISLATION CITED: Corporations Act 2001 (Cth)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Service and Execution of Process Act 1992 (Cth)
Service and Execution of Process Regulations 1993 (Cth)

CASES CITED: Re Austral Oil Estates Limited (in liq) (1986) 7 NSWLR 440
Re Absolutely Fabulous Exhibitions & Events (Management) Pty Limited; Fiorentino v Irons (1997) 25 ACSR 577
Harris D-E Pty Limited v McClelland’s Coffee and Tea Pty Limited 1999 NSWSC 36

PARTIES: Application of Robert William Whitton

FILE NUMBER(S): SC 1886/07

COUNSEL: Applicant: S Golledge

SOLICITORS: Applicant: Piper Alderman

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Monday, 28 May 2007

1886/07 Application of Robert William Whitton

JUDGMENT

1 HIS HONOUR: This is an application by one of two liquidators of Zenith Developments Company (Australia) Pty Limited (in liquidation). The plaintiff and Mr Hugh Martin were appointed as administrators of the company on 27 August 2004. They were appointed as liquidators on 16 September 2004. The company is subject to a creditors' voluntary winding-up.

2 On 21 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application of Robert William Whitton

Details

AGLC: Application of Robert William Whitton [2007] NSWSC 606
Case: [2007] NSWSC 606
Decision Date: 28 May 2007

CaseChat Overview and Summary

The applicant, Robert William Whitton, sought leave to serve a former officer of a company with a summons for examination and an order for the production of documents outside Australia. The application was made under the Corporations Act 2001 and the Uniform Civil Procedure Rules 2005 (NSW). Whitton argued that the service of the summons and order was necessary to investigate the affairs of the company, which was the subject of a winding-up petition. The court had to determine whether the application for leave to serve the documents outside Australia was valid and whether the summons had been properly served.

The legal issues before the court included whether the order sought by Whitton constituted "originating process" and whether the court had the jurisdiction to grant leave for substituted service of the summons and order for production of documents. The court also had to consider whether the summons for examination had been properly served in accordance with the Service and Execution of Process Act 1992 (Cth) and the Service and Execution of Process Regulations 1993 (Cth).

The court granted Whitton leave to serve the former officer of the company with the summons for examination and order for production of documents outside Australia. However, the court refused the application for substituted service and the issue of an arrest warrant for non-compliance with the summons for examination. The court found that the service of the summons for examination was ineffective due to a failure to provide the required notice under section 32 of the Service and Execution of Process Act 1992 (Cth) and regulation 4(1)(b) of the Service and Execution of Process Regulations 1993 (Cth). Consequently, the application was dismissed.

The court emphasised the importance of strict compliance with the statutory requirements for service of process, particularly in cases involving substituted service and the issue of arrest warrants. The court noted that failure to provide the required notice could render the service of the summons ineffective and result in the application being refused.

Orders