Bridgeport - Advisers & Asset Managers Pty Ltd - [2005] NSWSC 757

CITATION:
Bridgeport - Advisers & Asset Managers Pty Ltd [2005] NSWSC 757

HEARING DATE(S): 22/07/05

JUDGMENT DATE :

2 August 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Examinees' application for orders discharging examination summonses and setting aside orders for production refused. Applications for review of various decisions of deed administrators refused.

CATCHWORDS:
CORPORATIONS - administration - examinations under Part 5.9 - whether examinations to be undertaken for impermissible purposes - whether abuse of process - whether three day time limit in rule 11.5(2) may be extended - CORPORATIONS - deed of company arrangement - deed administrators defer consideration of claimants claim - whether court should review administrators' decisions

LEGISLATION CITED:
Corporations Act 2001 (Cth), Part 5.9, s.183(1)
Supreme Court (Corporations) Rules 1999, rule 11.5

CASES CITED:
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Flanders v Beatty (1995) 16 ACSR 324
Mine & Quarry Equipment International Ltd v McIntosh [2005] QCA 186
Re Markethaven Pty Ltd; Commonwealth v Sheahan [2004] FCA 1301
Re New Tel Ltd; Evans v Wainter Pty Ltd [2005] FCAFC 114
Sandhurst Trustees Ltd v Harvey (2004) 206 ALR 594
Yeomans v Walker (1986) 5 NSWLR 378

PARTIES:
Roderick Mackay Sutherland and Sule Arnautovic as Deed Administrators of Bridgeport - Advisers & Asset Managers Pty Limited - Plaintiffs
Wealthwise Financial Planning Pty Limited - First Applicant
Sentinel Wealth Management Pty Limited - Second Applicant
Justin Hooper - Third Applicant
Brian May - Fourth Applicant
Robert White - Fifth Applicant
Karin De Mamiel - Sixth Applicant

FILE NUMBER(S):
SC 2017/05

COUNSEL:
Mr R.K. Eassie - Plaintiffs
Mr L.G. Foster SC/Mr S.J. Philips - Applicants

SOLICITORS:
Nash O'Neill Tomko Lawyers - Plaintiffs
Deacons - Applicants

LOWER COURT JURISDICTION:

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

BARRETT J

FRIDAY, 29 JULY 2005

2017/05 – BRIDGEPORT – ADVISERS & ASSET MANAGERS PTY LIMITED

JUDGMENT

1 On 22 July 2005, I heard three interlocutory processes which hedge around with a number of procedural points what are really two substantive questions, namely, whether the court should put a stop to proposed examinations of certain persons under Part 5.9 of the Corporations Act 2001 (Cth) and whether administrators of a deed of company arrangement should be ordered to rule upon certain claims submitted to them.

2 The first interlocutory process was ostensibly filed on 3 May 2005 but, on one view, the ostensible filing was out of time and there was no filing at all. Under that interlocutory process, two companies and four individuals (best described, for convenience, as the applicants) seek certain relief against the plaintiffs in the proceedings who are the deed administrators under a deed of company arrangement executed by Bridgeport – Advisers & Asset Managers Pty Limited (which I shall call “Bridgeport”). I shall refer to those plaintiffs as “the administrators”.

3 By that first interlocutory process, the applicants (or some of them) seek, first, declarations that they are persons aggrieved by certain decisions of…

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.

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Details

Case: [2005] NSWSC 757
Decision Date: 2 August 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Bridgeport - Advisers & Asset Managers Pty Ltd was involved in a legal dispute. The nature of the dispute involved examinations under Part 5.9 of the Corporations Act 2001, and whether these examinations could be undertaken for impermissible purposes. The court was also required to determine whether there had been an abuse of process and whether the three-day time limit in rule 11.5(2) could be extended. Additionally, the court needed to decide whether it should review the decisions of the deed administrators who had deferred consideration of the claimant's claim.

The legal issues before the court included whether the examinations under Part 5.9 of the Corporations Act 2001 were being conducted for impermissible purposes, and if the three-day time limit in rule 11.5(2) could be extended. Furthermore, the court had to determine whether the administrators' decisions to defer consideration of the claimant's claim were reviewable by the court. The court also considered whether there had been an abuse of process in the conduct of the examinations.

The court found that the examinations were not being undertaken for an impermissible purpose and that the three-day time limit in rule 11.5(2) could not be extended. The court held that the administrators' decisions to defer consideration of the claimant's claim were not reviewable by the court. Additionally, the court determined that there had been no abuse of process in the conduct of the examinations. The court's reasoning was based on the interpretation of the relevant statutory provisions and case law.

The final orders of the court were that the examinations under Part 5.9 of the Corporations Act 2001 could proceed, and that the three-day time limit in rule 11.5(2) could not be extended. The court also held that the administrators' decisions to defer consideration of the claimant's claim were not reviewable by the court, and that there had been no abuse of process in the conduct of the examinations. These orders provided clarity and guidance for the parties involved in the dispute, and for others in similar situations.

Orders