Ariff v Fong

This case involved an appeal by Mr Ariff, a voluntary administrator, against an order of the trial judge that set aside examination summonses issued against Mr Fong and others. The dispute arose from Mr Ariff's application for examination summonses concerning the examinable affairs of companies within the CarLovers group, of which he was the deed administrator. Mr Fong, a director of these companies, and other parties sought to set aside these summonses, arguing they were issued for an improper purpose.

The primary legal issue before the appellate court was whether the trial judge erred in finding that the claimants had not demonstrated an arguable case that the examination summonses were issued for an improper purpose. This question necessitated a determination of the threshold required for claimants to gain access to an affidavit filed in support of the summonses, particularly when that affidavit was not readily available for inspection. The court also considered the principles governing the issuance of examination summonses under Part 5.9 of the *Corporations Act 2001* (Cth) and the circumstances under which an applicant might be required to prove an improper purpose before inspection of supporting evidence is permitted.

The appellate court reasoned that the trial judge had applied the relevant principles too stringently. Citing authorities such as *Fetzer v Irving* and *Re Southland Coal Pty Limited*, the court acknowledged that an applicant seeking to set aside examination summonses on the grounds of improper purpose generally bears the onus of establishing an arguable case. However, the court held that it would be unduly burdensome to require a claimant to prove an improper purpose without access to the affidavit that purportedly supports the summonses. The court found that the evidence, including correspondence and affidavits suggesting a dispute over remuneration and a desire to return control to the directors, provided a sufficient basis for an arguable case of improper purpose, warranting access to the supporting affidavit.

The appeal was allowed, and the orders of the trial judge were set aside. The court ordered that the claimants have access to the affidavit filed in support of the examination summonses, with access limited to their legal representatives, subject to any further orders of the Supreme Court. Mr Ariff was ordered to pay the costs of the appeal and the applications before the trial judge.