Bufalo Corporation Pty Ltd (No 2) - [2002] VSC 450

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8005 of 2001

IN THE MATTER of BUFALO CORPORATION PTY LTD (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION)
GREGORY STEWART ANDREWS	Plaintiff

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2002
DATE OF JUDGMENT:	25 October 2002
CASE MAY BE CITED AS:	Bufalo Corporation Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 450

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Corporations – Liquidator's examination – Questions as to statements at a meeting –Whether meeting held without prejudice – Submission that examination be in camera – Ruling by Master that questions be answered and examination be in public – Direction sought restraining any enquiry into meeting – Corporations Act s 569F(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S K Wilson, QC with Mr W E M Lye	Russell Kennedy
For the Liquidator	Mr J R Dixon	Tress Cocks & Maddox

HIS HONOUR:

This application arises in the course of a s 596A examination being conducted by a liquidator. The applicant seeks a direction under s 596F(1)(a) precluding enquiry into communications at a meeting attended by the examinee on 15 November 2000 on the ground of without prejudice privilege or legal professional privilege. That is the relief sought in para 2 of the amended interlocutory process. During the hearing the applicant raised an alternative way of disposing of the application. If the liquidator is entitled to enquire into communications at the meeting, the enquiry ought to be held in private to protect the confidential nature of the information discussed at the meeting in relation to any third party, and access to the transcript should be restricted. I note that the claim for relief in para 1 of the amended interlocutory process was abandoned.

As long ago as 8 November 2001 a judge made orders for the examination of four persons under s 596A and five persons under s 597B of the Corporations Act concerning the examinable affairs of Bufalo Corporation Pty Ltd ("the company"). Three of the s 597B examinees, who either are or had been officers of Primelife Corporation Ltd ("Primelife"), applied to set aside the examination summonses directed to them. I refused that application last April.[1] They appealed to the Court of Appeal. Their appeals are fixed for hearing on 30 October 2002. The other six examinees have been examined during this year, and their examinations have concluded, with one exception. The exception is an accountant, Gideon Rathner. His involvement in the examinable affairs of the company arises as a result of Primelife having, on 10 August 2000, appointed him as receiver and manager of the property of the company pursuant to a debenture dated 21 December 1998, granted by the company to Primelife. His examination is complete with the exception of the one contentious area of the meeting on 15 November 2000.
[1]Bufalo Corporation Pty Ltd [2002] VSC 107.

The company and Primelife once had a commercial relationship, but it broke down.…

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: [2002] VSC 450
Decision Date: 25 October 2002

CaseChat Overview and Summary

Bufalo Corporation Pty Ltd (No 2) was a case that involved the liquidator's examination of a corporation, which raised questions about the statements made during a meeting. The court had to determine whether the meeting was held without prejudice and if the examination should be conducted in camera. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court were whether the liquidator's examination should be conducted in camera and if there were grounds to restrain any enquiry into the meeting. The court had to consider the provisions of the Corporations Act, specifically section 569F(1)(a), which deals with the examination of liquidators. The court also had to consider whether the meeting was held without prejudice, which could potentially protect the statements made during the meeting from disclosure.

The court ruled that the questions put to the liquidator during the examination should be answered and the examination should be conducted in public. The Master of the Court had previously ruled that the questions be answered and the examination be in public, and this decision was upheld by the court. The court also found that there were no grounds to restrain any enquiry into the meeting. The court noted that the liquidator's examination is a public process and that any information obtained during the examination is subject to disclosure unless there are specific grounds for it to be protected.

The court's decision in Bufalo Corporation Pty Ltd (No 2) highlights the importance of transparency in the examination of liquidators. The court found that the examination should be conducted in public, and that any information obtained during the examination is subject to disclosure unless there are specific grounds for it to be protected. The court also found that meetings held without prejudice do not necessarily protect statements made during the meeting from disclosure. This decision is an important reminder for liquidators and other parties involved in the examination process to be aware of their obligations under the Corporations Act and to ensure that they are transparent in their dealings.

Orders