Carpenter International Pty Ltd (In Liq)
[2015] VSC 667
•23 November 2015
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted |
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2015 0175
IN THE MATTER of
CARPENTER INTERNATIONAL PTY LIMITED (IN LIQUIDATION) (ACN 165 690 657)
| MATTHEW JAMES DONNELLY, DAVID MARK HODGSON AND ANDREW STEWARD REED HEWITT IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF CARPENTER INTERNATIONAL PTY LTD (IN LIQUIDATION) (ACN 165 690 657) and CARPENTER INTERNATIONAL PTY LTD (IN LIQUIDATION) (ACN 165 690 657) | Plaintiffs |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 November 2015 |
DATE OF JUDGMENT: | 23 November 2015 |
CASE MAY BE CITED AS: | Carpenter International Pty Ltd (In Liq) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 667 |
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PRACTICE AND PROCEDURE – Interlocutory application for various injunctions – Requirement that respondents disclose information by way of affidavit – Claim of common law privilege against self-incrimination – Evidence Act 2008, ss 128 and 128A
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D F McAloon | Clayton Utz |
| For the Respondents Crimsondale Pty Ltd, Ian Albrecht and Dianne Albrecht | Mr A Silver | Hapgood Legal |
| For the Respondent Mathew Albrecht | Dr M Wolff | Blueprint Law |
HIS HONOUR:
Introduction
By Orders made on 9 November 2015, the fourth respondent, Mathew Albrecht was ordered to file and serve an affidavit setting out certain information. Mathew Albrecht has objected to complying with order 5 of the orders of 9 November 2015 on the basis that he is entitled to invoke the common law privilege against self-incrimination.
The plaintiffs were appointed as joint and several voluntary administrators of Carpenter International Pty Ltd (“the Company”) pursuant to s 436A of the Corporations Act 2001 (Cth) in March 2015. The first to third plaintiffs have now been appointed liquidators to the Company.
The Company is in the business of buying and selling cattle. The Company from time to time engaged a company known as GG Feedlot Pty Ltd (“GG Feedlot”) as its agent to mind and maintain the cattle.
Mr Ian Albrecht and Mrs Dianne Albrecht are the parents of Mathew Albrecht. Mathew Albrecht is the sole Director of GG Feedlot.
Crimsondale Pty Ltd (‘Crimsondale’) is a company owned by Mr Ian Albrecht and Mrs Dianne Albrecht, who are also the Directors of that company.
The subject matter of the underlying application is 880 head of cattle, previously held by GG Feedlot and purportedly sold initially to Crimsondale, in respect of which the Company claims ownership and, or, the proceeds of any sale of such cattle.
A subsisting dispute also exists as to the effectiveness of a security which GG Feedlot asserts in relation to the disputed cattle.[1]
[1]See [11] hereof.
General background to the present application
In these proceedings, the plaintiffs seek injunctive relief to preserve the subject matter of the proceedings, namely 880 head of cattle and any proceeds of the sale of those cattle, from further wrongful disposal by Crimsondale or others.
This application is made subsequent to an application by the plaintiffs against GG Feedlot which resulted in interim injunctions being ordered by Elliott J on 13 October 2015 and a further interlocutory injunction and other consent orders being made in this proceeding by Cameron J on 15 October 2015. Those orders are set out below.
In about early September to early October 2015, it appears strongly arguable that GG Feedlot sold the subject 880 head of cattle to Crimsondale and dissipated all of the proceeds of the sale.[2]
[2]Affidavit of Mathew Albrecht 19 October 2015, [16].
Interlocutory background
On 18 August 2015, GG Feedlot issued an Interlocutory Process in which it sought orders and declarations under s 442C of the Corporations Act 2001 (Cth) and the inherent jurisdiction of the Court, preventing the plaintiffs from dealing with the 1,277 head of cattle and asserting GG Feedlot’s rights to the cattle pursuant to the Personal Properties Securities Act 2009. GG Feedlot asserted a security based interest in the disputed cattle.
Since administrators were appointed to the Company on 24 March 2015, Matthew Donnelly and his staff have regularly been in contact with Mathew Albrecht and GG Feedlot regarding the terms of the agreement relating to the feeding and maintenance of the cattle at the Feedlot.[3] The first to fifth affidavits of Matthew James Donnelly disclose that there have been lengthy and ongoing disputes between the plaintiffs and Mathew Albrecht and GG Feedlot as to the interests in the cattle at the Feedlot.
[3]Affidavit of Matthew James Donnelly 22 May 2015, [4], [18].
On 13 October 2015, the plaintiffs made an interlocutory application under s 37 of the Supreme Court Act 1986, and the inherent jurisdiction of the Court seeking, inter alia that:
3. Save with the written consent of the Plaintiffs, until further order or the final determination of the Interlocutory Process filed by GG Feedlot on 18 August 2015, GG Feedlot, by itself, its servants or agents or howsoever otherwise, be restrained from selling, mortgaging, otherwise encumbering or alienating any interest or dealing with or otherwise disposing of:
(a) any of the 1,277 head of cattle consigned by the Company to GG Feedlot which remain at the Feedlot or otherwise in GG Feedlot’s possession or control; and/or
(b) any proceeds of sale of the Cattle since 26 August 2015.
4. Save with the written consent of the Plaintiffs, until further order or the final determination of GG Feedlot’s Interlocutory Process filed 18 August 2015, GG Feedlot, by itself, its servants or agents or howsoever otherwise, be restrained from removing any further of the Cattle from the Feedlot.
5. Within 3 days of this Order, GG Feedlot file and serve an affidavit setting out, with full detail:
(a) any sale or disposal of any of the Cattle since 26 August 2015, including:
(i) the identity of each head of cattle sold or disposed of by Carpenter Tag number and Electronic Identification Device number;
(ii) the date(s) of sale;
(iii) the purchase price payable;
(iv) whether any such sale has been completed or remains executory;
(v) the identity and contact details of the party to whom the cattle was sold or is to be sold;
(vi) the consideration paid or payable to GG Feedlot;
(vii) whether any contract or written document exists which records the sale and exhibiting such document;
(b) the treatment of any proceeds of sale received by GG Feedlot or on its behalf, including the amount and location of any remaining such proceeds of sale;
(c) the identity of each head of cattle which remain at the Feedlot or otherwise in GG Feedlot’s possession or control by Carpenter Tag number and Electronic Identification Device number;
(d) any other dealing by GG Feedlot in relation to the Cattle since 26 August 2015.
Also on 13 October 2015, Elliott J made interim orders restraining GG Feedlot, by itself, its servants, or agents, or howsoever otherwise, from dealing with the 1,277 head of cattle and setting down the further hearing of the plaintiffs’ interlocutory process until 15 October 2015.
On 15 October 2015, Cameron J made orders restraining GG Feedlot, by itself, its servants, or agents, or howsoever otherwise, from dealing with the 1,277 head of cattle and any proceeds of sale of the cattle since 26 August 2015,[4] until further order or the final determination of the interlocutory process filed by GG Feedlot on 18 August 2015. Paragraph 4 of the Orders of Cameron J required GG Feedlot to file and serve an affidavit setting out, with full detail:
[4]Save for the payment to the plaintiffs of $26,349.84.
(1)any sale or disposal of any of the Cattle since 26 August 2015, including:
(i)the identity of each head of cattle sold or disposed of by Carpenter Tag number and Electronic Identification Device number;
(ii)the date(s) of sale;
(iii)the purchase price payable;
(iv)whether any such sale has been completed or remains executor;
(v)the identity and contact details of the party to who the cattle was sold or is to be sold;
(vi)the consideration paid or payable to GG Feedlot;
(vii)whether any contract or written document exists which records the sale and exhibiting such document;
(2)the treatment of any proceeds of sale received by GG Feedlot or on its behalf, including the amount and location of any remaining such proceeds of sale;
(3)the identity of each head of cattle which remains at the feedlot or otherwise in GG Feedlot’s possession or control by Carpenter Tag number and Electronic Identification Device number;
(4)any other dealing by GG Feedlot in relation to the Cattle since 26 August 2015.
The affidavit of Mathew Albrecht sworn 19 October 2015, filed pursuant to paragraph 4 of the Orders of Cameron J made 15 October 2015, disclosed, inter alia:
(a) since 26 August 2015, GG Feedlot had organised the sale of 880 head of the cattle, on the following dates and in the following amounts;
(i) 3 September 2015 – 300 head of cattle;
(ii) 16 September 2015 – 385 head of cattle;
(iii) 22 September 2015 – 70 head of cattle;
(iv) 4 October 2015 – 125 head of cattle;
(b) the 880 head of cattle were all sold by GG Feedlot to Crimsondale and all sales were completed as of 19 October 2015;
(c) the sales were by verbal contract between Mathew Albrecht, on behalf of GG Feedlot, and Dianne Albrecht, on behalf of Crimsondale;
(d) the cattle were sold for $880 (incl. GST) per head of cattle;
(e) the sale proceeds from the cattle have been fully used by GG Feedlot to pay its creditors; and
(f) an amount of $249,305.60 was paid by GG Feedlot to Crimsondale on 10 October 2015 from the sale proceeds.
The 880 head of cattle sold by GG Feedlot to Crimsondale in September and October 2015, were part of the 1,277 head of cattle at GG Feedlot which are the subject of the plaintiffs’ claims in this proceeding.
In response to the Mathew Albrecht affidavit of 19 October 2015, the plaintiffs brought an interlocutory application dated 21 October 2015 against Crimsondale, seeking, inter alia:
2. Save with the written consent of the Plaintiffs, until further order or the final determination of the Interlocutory Process filed by GG Feedlot on 18 August 2015, Crimsondale, by itself, its servants or agents or howsoever otherwise, be restrained from selling, mortgaging, otherwise encumbering or alienating any interest or dealing with or otherwise disposing of:
(a) any of the 880 head of cattle which were purported to have been sold by GG Feedlot Pty Ltd (GG Feedlot) to Crimsondale between in or about September 2015 and October 2015 (together the Sold Cattle) which are in Crimsondale's possession or control; and/or
(b) any proceeds of sale of the Sold Cattle; and/or
(c) any of the amount of $249,305.60 identified in exhibit MA-3 to the affidavit of Mathew Albrecht sworn 19 October 2015 as having been paid by GG Feedlot to Crimsondale on 10 October 2015 from the proceeds of sale of the Sold Cattle.
3. Within 3 days of this Order, Crimsondale file and serve an affidavit setting out, with full detail:
(a) any sale or disposal of any of the Sold Cattle, including:
(i) the identity of each head of cattle sold or disposed of by Carpenter Tag number and Electronic Identification Device number;
(ii) the date(s) of sale;
(iii) the purchase price payable;
(iv) whether any such sale has been completed or remains executory;
(v) the identity and contact details of the party to whom the cattle was sold or is to be sold;
(vi) the consideration paid or payable to Crimsondale;
(vii) whether any contract or written document exists which records the sale and exhibiting such document;
(b) the treatment of any proceeds of sale received by Crimsondale or on its behalf, including the amount and location of any remaining such proceeds of sale;
(c) the identity of each head of cattle which remain at the Feedlot or otherwise in Crimsondale's possession or control by Carpenter Tag number and Electronic Identification Device number;
(d) any other dealing by Carpenter in relation to the Sold Cattle.
On 22 October 2015, I made interim orders restraining Crimsondale from dealing with the 880 head of cattle, any proceeds of the sale of the cattle, and the amount of $249,305.60 paid by GG Feedlot to Crimsondale on 10 October 2015, as identified in the Mathew Albrecht affidavit of 19 October 2015, effective until 4:00pm on 4 November 2015. The Orders also required Crimsondale to file and serve an affidavit by 4:00pm on 29 October 2015, setting out in near identical terms the details required by paragraph 4 of the Orders of Cameron J of 15 October 2015.
The affidavit of Ian Albert Albrecht, director of Crimsondale, sworn 29 October 2015, disclosed inter alia that:
(a) Crimsondale had on-sold the 880 head of cattle and all sales have been completed;
(b) the sale agreement was an oral agreement between Ian Albrecht and an agent with terms to the effect that the price of each of the sold cattle was $880 (incl. GST) and the agent’s principal was to arrange collection from GG Feedlot;
(c) as part of the sale, Crimsondale had entered into a confidentiality agreement with the agent not to disclose the name of the agent;
(d) Ian Albrecht did not know;
(v) who the agent purchased the cattle on behalf of;
(vi) where the cattle were taken after they were removed from GG Feedlot’s premises;
(vii) who collected the cattle from GG Feedlot’s premises; and
(viii) the current location of the cattle;
(e) each head of cattle was on-sold by Crimsondale on the same day that it was purchased by Crimsondale from GG Feedlot; and
(f) the sum of $249,305.60 Crimsondale retained on account of moneys owed by GG Feedlot to Crimsondale had been used in payment of debtors.
On 4 November 2015, I made orders, inter alia that:
1.The injunction ordered in paragraph 1 of the Orders made on 22 October 2015 by Justice Digby in respect of the respondent, Crimsondale Pty Ltd (ACN 167 321 039) (Crimsondale), be continued, on the undertakings of the plaintiffs in place to date, until 4:00pm on 9 November 2015.
2.By 4:00pm on 6 November 2015, Mr Ian Albrecht file and serve a further affidavit which:
(a)deals with the identification of the agent with whom Crimsondale dealt, as presently referenced in paragraph 9 of the affidavit or Mr Ian Albrecht sworn on 29 October 2015 (Ian Albrecht Affidavit);
(b)exhibits the confidentiality agreement referenced in paragraph 9 of the Ian Albrecht Affidavit;
(c)identifies from his banking records, or the banking records of Crimsondale, the source of the monies received in respect of all sales of the subject cattle referred to in the Ian Albrecht Affidavit; and
(d)exhibits the documents which are sought in the notice to produce issued by the plaintiffs on 30 October 2015.
3.By 4:00pm on 6 November 2015, Mrs Dianne Albrecht file and serve an affidavit providing a response in respect of the matters referred to in paragraph 2 of the orders made on 22 October 2015 by Justice Digby.
The further affidavit of Ian Albrecht sworn 8 November 2015 disclosed, inter alia that;
(a) Mathew Albrecht was the agent acting for Crimsondale for the sale of the 880 head of cattle; and
(b) Mathew Albrecht is in possession of all of the paperwork in relation to the sale of the 880 head of cattle by Crimsondale and the details have not been provided to Ian Albrecht.
By affidavit sworn 8 November 2015, Dianne Albrecht, director of Crimsondale, deposed inter alia, that:
(a) the agreement for the sale of the 880 head of cattle by Crimsondale was an oral agreement between Ian and Dianne Albrecht with Mathew Albrecht who acted as agent for the sale;
(b) Mathew Albrecht would not disclose to Dianne or Ian Albrecht the name of the agent through which he sold the 880 head of cattle on behalf of Crimsondale;
(c) Mathew Albrecht would not disclose to Dianne or Ian Albrecht who picked up the 880 head of cattle from GG Feedlot or where they were taken; and
(d) Mathew Albrecht would not provide Dianne or Ian Albrecht with the transaction documents related to the sale.
On 9 November 2015, I made orders providing, inter alia, that:
1.Ian Albert Albrecht and Dianne Albrecht be joined as respondents to the plaintiffs’ Interlocutory Process.
2.Save with the written consent of the plaintiffs, until further order or the final determination of the Interlocutory Process filed by GG Feedlot Pty Ltd on 18 August 2015, the respondents, Crimsondale Pty Ltd (ACN 167 321 039) (Crimsondale), Ian Albert Albrecht and Dianne Albrecht, by themselves, their servants or agents or howsoever otherwise, be restrained from selling, mortgaging, otherwise encumbering or alienating any interest or dealing with or otherwise disposing of:
(a)any of the 880 head of cattle which were purported to have been sold by GG Feedlot Pty Ltd (GG Feedlot) to Crimsondale between in or about September 2015 and October 2015 (together the Sold Cattle) which are in Crimsondale's possession or control; and/or
(b) any proceeds of sale of the Sold Cattle;
(c)any of the amount of $249,305.60 identified in exhibit MA-3 to the affidavit of Mathew Albrecht sworn 19 October 2015 as having been paid by GG Feedlot to Crimsondale on 10 October 2015 from the proceeds of sale of the Sold Cattle; and/or
(d)any of the amount of $59,915.30 identified in paragraph 18 of the affidavit of Ian Albert Albrecht sworn 8 November 2015
...
4.Mathew Albrecht be joined as a respondent to the plaintiffs’ Interlocutory Process.
5.By 4:00pm on 11 November 2015, Mathew Albrecht, on his own behalf and on behalf of GG Feedlot Pty Ltd (GG Feedlot), file and serve an affidavit setting out, with full detail:
(a)the identity and contact details of any stock agent with whom Mathew Albrecht and/or GG Feedlot dealt in connection with any sale of the Sold Cattle;
(b)the identity and contact details of any purchaser of any of the Sold Cattle, whether said cattle were purchased from Mathew Albrecht, GG Feedlot, Crimsondale or otherwise;
(c)whether any contract or written document (including any emails, tax invoices or banking records) exists which relates to or records any sale, proposed sale, negotiations for sale of, or dealings with, the Sold Cattle since 26 August 2015, and exhibiting all such documents;
(d)the treatment of any proceeds of sale received by Crimsondale or on its behalf, including the amount and location of any remaining such proceeds of sale; and
(e)the present location of all or any of the Sold Cattle or their last known location.
Present application
Mathew Albrecht has not complied with paragraph 5 of the Orders made 9 November 2015.
On 17 November 2015, Mathew Albrecht swore an affidavit, in essence, claiming that he would not comply with paragraph 5 of the Orders made 9 November 2015, as to do so would carry a grave risk of self-incrimination in relation to a number of criminal and civil offences.
Mathew Albrecht claims that he is entitled to refuse to comply with Order 5 of my orders of 9 November 2015 because he is entitled to invoke a common law privilege against self-incrimination and on the basis of the privilege he asserts is available under section 128 of the Evidence Act 2008 (Vic) (“the Act”).
Dr Wolff of Counsel argues, that Mathew Albrecht:
(ix) has, by his affidavit of 17 November 2015, established the basis of his reasonable belief that compliance with the orders requiring disclosure of certain information by affidavit, would expose him to criminal liability;
(x) is entitled to rely upon common law privilege against self-incrimination[5] and also the privilege referred to in s 128 of the Act although it is submitted that the procedure in s 128 of the Act is not applicable to the present situation;
[5]Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, 443; and applicant’s written submissions dated 18 November 2015, [8]-[18].
(xi) has not waived his right to claim privilege against self-incrimination;
(xii) is also entitled to refuse to provide the information ordered to be furnished by way of an affidavit, because to do so might expose him to the imposition of a civil penalty or expose him to civil contempt;[6]
[6]Mathew Albrecht submissions dated 18 November 2015 [19]-[26].
(xiii) is aware that at earlier interlocutory hearings the plaintiffs have made it clear that it believes the tort of conversion has occurred,[7] and that the tort of conversion ‘shares its defining characteristics with the crime of theft’;
[7]Mathew Albrecht submissions dated 18 November 2015 [35]-[42].
(xiv) has reasonable grounds to fear incrimination and criminal prosecution on the basis of conversion and/or theft; and
(xv) fears prosecution in respect of penalties for violations of the National Livestock Identification System Database rules, laws and regulations and under the provisions of the Livestock Disease Control Act 1994.
The applicant, by his written submissions dated 18 November 2015 also argued that:
45.For completeness sake, reference is made to the affidavit of Mat Albrecht of 17 November 2015. Order 5(a) presupposes that Mat Albrecht was involved in the sale of the Cattle. If Mat Albrecht were to answer Order 5(a), he would be forced to admit that he was in some way involved in the sale of the Cattle and therefore incriminates himself.
46.The same applies for suborders 5(b) to (e), with the potential exception of 5(d) which relates to a different entity and therefore Mat Albrecht may be unaware of the sought information. However, if he does possess the requested information under Order 5(d), it would tend to incriminate him and the Privilege is therefore sought with regard to Order 5(d) as well.
On the above bases Mathew Albrecht applies for a declaration that he is not obliged to furnish information or documents which might tend to expose him to either criminal prosecution or to a civil penalty.
Mathew Albrecht’s parents, Ian and Dianne Albrecht, did not actively participate in this application for a declaration by Mathew Albrecht.
The plaintiffs submitted that:
(a) in the circumstances of this matter, Mathew Albrecht faces no real risk of criminal prosecution;[8]
[8]Re Australian Property Custodian Holdings Ltd (in liq) (Receivers and Managers appointed) (Controllers appointed) (No 2) (2012) 93 ACSR 130, [115]; cited with approval in Gemmell and Anor v Le Roi Homestyle Cookies Pty Ltd (in liq) & Anor (2014) 102 ACSR 367, [20].
(b) the applicant has not identified or established a real and appreciable risk of a criminal prosecution or penalty on the material before the court, nor has he established that providing the information requested would tend to subject him to a separate penalty proceeding, or a civil penalty being imposed in some other proceeding;
(c) there is no real and appreciable risk of criminal prosecution or penalty which has been identified by the applicant in relation to any of the specific matters required to be answered by Order 5 of the Court’s orders of 9 November 2015, and unacceptably the applicant has sought to raise no more than a blanket objection; and
(d) Mathew Albrecht has waived privilege.
Both counsel for the applicant and counsel for the plaintiffs accepted that s 128 of the Act was inapplicable in the present situation, because that section applies to the testamentary stage of a proceeding at which a witness is giving evidence in respect of a particular matter, and is not apposite to an order requiring the disclosure of information.[9]
[9]See s 131A of the Evidence Act 2008 (Vic) and s 128A of that Act dealing with disclosure of information, confined to disclosure in connection with a freezing order or search order under the Rules of the Supreme Court. See also Hua Wang Bank Berhad v Commissioner of Taxation (No 15) (2013) 217 FCR 26.
Counsel for the plaintiffs, however, argued that s 128A of the Act applied and provided an option to the court, in the present circumstances, to make an order requiring the filing and service of the whole or any part of a privileged affidavit filed pursuant to s 128A of the Act.
I am however, against the plaintiffs on their submission in relation to the present application of s 128A of the Act. In my view s 128A can only be utilised in relation to disclosure required in connection with a freezing order, or a search order, made under the Rules of this Court. There has been no freezing order made and there has been no search order made in this matter pursuant to Order 37A, or otherwise.
Conclusion
In my view Mathew Albrecht has not established that the provision of the affidavit ordered in respect of the specific information sought by the Orders made on 9 November 2015, and the production of the documents also ordered, gives rise to a real and appreciable risk of a criminal prosecution or civil penalty proceeding against Mathew Albrecht in the future. Nor, in my view, has the applicant established that by providing such information or documentation, Mathew Albrecht would tend to subject himself to a civil penalty in a separate proceeding.[10]
[10]Re Australian Property Custodian Holdings (2012) 93 ACSR 130, [115](a)(b) and (c).
Furthermore, in my view, there is no material in this matter upon which I can be satisfied that Mathew Albrecht is, or is about to be, the subject of a civil penalty proceeding under the National Livestock Identification System Database Rules, Laws or Regulations or the Livestock Disease Control Act 1994, or otherwise.
I am also not persuaded that a response by Mathew Albrecht to the defined matters in Orders 5(a) to (e) of the Orders of 9 November 2015, would give rise to a real and appreciable risk of prosecution under the Act, and Rules and Regulations referred to in the last preceding subparagraph.
The order of 9 November 2015 (set out in full above), in my view requires, in essence, no more than Mathew Albrecht providing the basic objective facts in relation to any sale of the 880 head of cattle by GG Feedlot or by him, including, to a third party or a third party’s agent.
There is in this matter no evidence of any involvement by a regulatory or enforcement agency, or other like authority, in relation to any dealing with the subject 880 head of cattle.
Furthermore, the plaintiffs’ case against the respondents, at its highest, amounts to a civil claim for conversion. Such a claim does not equate to an assertion of theft and the applicant has not satisfied me in all the above circumstances that there is, in this matter, an appreciable risk of a criminal prosecution against him in relation to the on-sale of cattle by Crimsondale to an unidentified buyer.
Neither has the applicant explained to any satisfaction how the role asserted against him namely, as selling agent of Crimsondale, gives rise to a real and appreciable risk of criminal prosecution or penalty in the circumstances.
Although Mathew Albrecht has in his affidavit of 19 October 2015, summarised above, made it clear that he has participated in the sale of the relevant 880 head of cattle by GG Feedlot to Crimsondale, and it is also clear on the evidence that on the same day Crimsondale sold the same 880 head of cattle to an unidentified buyer, Mathew Albrecht has not admitted involvement in the on-sale by Crimsondale to the unidentified third party buyer. Remarkably, however Mathew’s parents, Ian and Dianne Albrecht, have sworn that Mathew acted as Crimsondale’s agent in relation to the on-sale to the unidentified buyer.[11]
[11]Affidavit of Ian Albrecht sworn 8 November 2015 [3] and Dianne Albrecht’s affidavit of 8 November 2015 [8].
Accordingly, it is however clear enough that Mathew Albrecht was deeply involved in the above on-sale to an unidentified buyer.
In my view it is also strongly arguable that the conduct of Mathew Albrecht is intended by him to delay and obstruct the Liquidators’ enquiries and make it difficult or impossible for the Liquidators to ascertain matters which are most important to the just and speedy resolution of the issues in this proceeding, including the identity of the purchaser of the 880 head of cattle on-sold by Crimsondale in late September and early October 2015, and the present whereabouts of the missing 880 head of cattle. Furthermore, I observe that the disclosure of this important information to the plaintiffs is pressing, including because delay may well give rise to an ultimate inability to recover the subject cattle and/or interdict money received for their subsequent sale.
For the above reasons I dismiss Mathew Albrecht’s application for a declaration that he is not obliged to furnish information or documents pursuant to the Orders made 9 November 2015, 5(a) to (e).
I order an extension of the time in which Mathew Albrecht is to file and serve the affidavit and documents pursuant to the above Orders, to 4pm Wednesday 25 November 2015.
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