CRIBB -v- BELL [2012] WASC 346

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 346
Case No:	COR:48/2012	Heard:	18 SEPTEMBER 2012
Coram:	BEECH J	Delivered:	21/09/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Application to set aside summons dismissed
Category:	B
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Parties:	NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ) CARL WILLIAM BELL
Catchwords:	Corporations Liquidator's examination Application to set aside examination summons on constitutional grounds Grounds devoid of merit Turns on own facts
Legislation:	Nil
Case References:	Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 Hedley v Spivey [2012] WASCA 116 O'Connell v The State of Western Australia [2012] WASCA 96 Saraceni v Jones [2012] WASCA 59 Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CRIBB -v- BELL [2012] WASC 346 CORAM : BEECH J HEARD : 18 SEPTEMBER 2012 DELIVERED : 21 SEPTEMBER 2012 FILE NO/S : COR 48 of 2012 BETWEEN : NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ)

Plaintiff

AND

CARL WILLIAM BELL

Defendant

Catchwords:

Corporations - Liquidator's examination - Application to set aside examination summons on constitutional grounds - Grounds devoid of merit - Turns on own facts

Legislation:

Nil

Result:

Application to set aside summons dismissed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr K L Christensen

Defendant : In person

Solicitors:

Plaintiff : Gadens Lawyers

Defendant : In person

Case(s) referred to in judgment(s):

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Hedley v Spivey [2012] WASCA 116
O'Connell v The State of Western Australia [2012] WASCA 96
Saraceni v Jones [2012] WASCA 59
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

(Page 3)

BEECH J

Background

1 The plaintiff (the Liquidator) is the liquidator of Costanoza Pty Ltd (in liq). Pursuant to the orders of Master Sanderson of 5 April 2012 the Liquidator has issued a summons for the examination of Mr Carl William Bell under s 596B of the Corporations Act 2001 (Cth).

2 The examination summons was returnable on 8 June 2012. On that day, Mr Bell appeared before a registrar of the court. He refused to take an oath or affirmation, or to answer questions (ts 6 - 8). The examination was adjourned sine die.

3 The Liquidator then made an application for the issue of an arrest warrant for Mr Bell. That application was adjourned for reasons not necessary to detail.

4 The examination summons was relisted for 23 August 2012 before the registrar. Mr Bell challenged the authority of the registrar and refused to take the oath or affirmation (ts 21 - 24).

5 Later on 23 August 2012, I adjourned the Liquidator's application for an arrest warrant, and the hearing of the examination summons, to 10 September 2012 before me.

6 Mr Bell did not appear on 10 September 2012. He contacted…

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 Cribb v Bell

Details

AGLC: Supreme Court of Western Australia
Case: [2012] WASC 346
Decision Date: 21 SEPTEMBER 2012

CaseChat Overview and Summary

Cribb v Bell concerned an application by a liquidator, the applicant, to set aside an examination summons on constitutional grounds. The matter was heard in the Federal Court of Australia. The respondent, who was subject to the summons, argued that the examination was unconstitutional, and sought to have the summons set aside. The applicant opposed the application, contending that the respondent's arguments lacked merit and were without substance.

The court was required to determine whether the examination summons was unconstitutional. This involved examining the arguments put forward by the respondent, which centred on alleged violations of constitutional principles. The court also needed to assess the merits of the respondent's claims and decide whether they were sufficient to warrant setting aside the summons.

In dismissing the application, the court found that the respondent's arguments were without merit. The court held that the examination summons did not contravene any constitutional principles and that the respondent's claims were not substantiated. As such, the application to set aside the summons was dismissed. The court's decision was based on the respondent's inability to provide any valid grounds for the setting aside of the summons. The court's reasoning was grounded in the lack of any constitutional violations or legitimate concerns raised by the respondent.

Orders

Orders of the court

Application to set aside summons dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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