Dickson, in the matter of Centaur Litigation SPC (in liq) v Centaur Litigation SPC (in liq)
[2016] FCA 585
•23 May 2016
FEDERAL COURT OF AUSTRALIA
Dickson, in the matter of Centaur Litigation SPC (in liq) v Centaur Litigation SPC (in liq) [2016] FCA 585
File number: NSD 114 of 2016 Judge: YATES J Date of judgment: 23 May 2016 Catchwords: CORPORATIONS – foreign corporation – external administration – examination – where there is a reasonable apprehension that the examinee might leave Australia – whether to temporarily restrain the examinee from leaving Australia – protection of the interests of creditors and debtors Legislation: Cross-Border Insolvency Act 2008 (Cth) Sch 1 Art 21
Federal Court of Australia Act 1976 (Cth) s 23
Federal Court Rules 2011 rr 17.01, 30.34
Date of hearing: 23 May 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 8 Counsel for the Plaintiffs: Mr AG Bell SC with Mr S Aspinall Solicitor for the Plaintiffs: Henry Davis York ORDERS
NSD 114 of 2016 IN THE MATTER OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS)
BETWEEN: HUGH DICKSON AS FOREIGN REPRESENTATIVE OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) (and others named in the Schedule)
First Plaintiff
AND: CENTAUR LITIGATION SPC (IN LIQUIDATION) (A COMPANY REGISTERED IN THE CAYMAN ISLANDS)
(and others named in the Schedule)First Defendant
JUDGE:
YATES J
DATE OF ORDER:
23 MAY 2016
THE COURT ORDERS THAT:
1.This interlocutory process be returnable before the Court instanter.
2.A summons for examination in the form of the document marked MFI-1 (the summons for examination) be issued forthwith in respect of Scott Campbell Fisher (also known as Trent Scott Wallace Strong and Scott Williams) (the examinee).
3.An order for production in the form of the document marked MFI-2 be issued forthwith in respect of the examinee (the order for production).
4.The time for service of this interlocutory process, the affidavit of Said Jahani in support of additional relief made 23 May 2016, the summons for examination, the order for production and these orders be abridged to 8 pm on 23 May 2016.
5.Until 5 pm on 25 May 2016 or further order of the Court, the examinee be prohibited from leaving Australia.
6.The interlocutory process and the summons for examination be returnable, in the first instance, before the Commercial and Corporations Duty Judge at 10.15 am on 25 May 2016.
7.The order for production be returnable before a Registrar of the Court at 9.30 am on 1 June 2016.
8.Liberty to apply be granted to the plaintiffs and the examinee on two hours’ written notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)YATES J:
In their capacity as foreign representatives of the defendants, the plaintiffs apply ex parte under Art 21(1) of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade in Sch 1 of the Cross-Border Insolvency Act 2008 (Cth), s 23 of the Federal Court of Australia Act 1976 (Cth) and r 17.01 and r 30.34 of the Federal Court Rules2011 for certain relief.
First, they seek an order that a summons for examination issue forthwith in respect of Scott Campbell Fisher, also known as Trent Scott Wallace Strong and Scott Williams (Mr Fisher). The summons for examination is in the form of the draft which I have marked
MFI-1. They also seek an order for production directed to Mr Fisher. The order for production is in the form of the draft which I have marked MFI-2. The application for this relief is supported by an affidavit, which has not been read in open court.
Secondly, the plaintiffs seek an order that until 5 pm on Wednesday, 25 May 2016, or further order of the Court, Mr Fisher be prohibited from leaving Australia. This aspect of the current application is supported by an affidavit of Said Jahani made 23 May 2016. Mr Jahani is one of the plaintiffs in the proceeding. The affidavit to which I refer is entitled “Affidavit of Said Jahani in Support of Additional Relief, 23 May 2016” (Mr Jahani’s affidavit). Mr Jahani’s affidavit will be taken as having been read in open court.
In the course of submissions today, I was taken through the affidavit and certain of the documents referred to in two folders of documents. The folders of documents are referred to in the affidavit as Exhibit SJ-3. Those documents will be marked as Exhibit SJ-3 in the present application.
Thirdly, the plaintiffs seek an abridgement of time for the service of the interlocutory process, the summons for examination, the order for production, and Mr Jahani’s affidavit.
Given the time of day and the short period for which the abridgement of time is sought (namely, later this evening), I will not seek to detail all the matters set out in Mr Jahani’s affidavit. It is sufficient for me to note that in the last week or so an address for Mr Fisher in Australia has become known to the plaintiffs. The plaintiffs are concerned that, once served, Mr Fisher will be a flight risk and that an order is necessary in the interests of creditors that he be prohibited from leaving Australia until, as I have said, 5 pm on 25 May 2016. This part of the relief has been supported also by written submissions, which I have marked MFI-3. These submissions will be placed on the court file.
I am satisfied that the summons for examination and the order for production should issue. On the basis of the matters set forth in the written submissions, as amplified and explained by Mr Bell SC in oral submissions, I am persuaded that the order prohibiting Mr Fisher from leaving Australia should be made.
The Court will therefore make the following orders:
(1)The interlocutory process, filed 23 May 2016, be returnable before the Court instanter.
(2)A summons for examination, in the form of the document marked MFI-1, issue forthwith in respect of Scott Campbell Fisher also known as Trent Scott Wallace Strong and Scott Williams, to whom I will refer as the examinee.
(3)An order for production, in the form of the document marked MFI-2, issue forthwith in respect of the examinee.
(4)The time for service of the interlocutory process, the affidavit of Said Jahani, in support of additional relief, dated 23 May 2016, the summons for examination, the order for production and these orders be abridged to 8 pm on 23 May 2016.
(5)Until 5 pm on Wednesday, 25 May 2016, or further order of the Court, the examinee be prohibited from leaving Australia.
(6)The interlocutory process filed 23 May 2016 and the summons for examination be returnable, in the first instance, before the Commercial and Corporations Duty Judge at 10.15 am on Wednesday, 25 May 2016.
(7)The order for production be returnable before a Registrar of the Court at 9.30 am on 1 June 2016.
(8)Liberty to apply be granted to the plaintiffs and the examinee on two hours’ written notice.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 25 May 2016
SCHEDULE OF PARTIES
NSD 114 of 2016 Plaintiffs
Second Plaintiff: DAVID BENNETT AS FOREIGN REPRESENTATIVE OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) Third Plaintiff: SAID JAHANI AS FOREIGN REPRESENTATIVE OF CENTAUR LITIGATION SPC, CENTAUR LITIGATION LTD AND CENTAUR LITIGATION UNIT SERIES 1 LTD (EACH IN LIQUIDATION) (EACH A COMPANY REGISTERED IN THE CAYMAN ISLANDS) Defendants
Second Defendant: CENTAUR LITIGATION LTD (IN LIQUIDATION) (A COMPANY REGISTERED IN THE CAYMAN ISLANDS) Third Defendant: CENTAUR LITIGATION UNIT SERIES 1 LTD (IN LIQUIDATION) (A COMPANY REGISTERED IN THE CAYMAN ISLANDS)
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