Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955

In the matter of New Tel Limited (in liq) ACN 009 068 955, the plaintiff, a creditor of New Tel, sought leave to serve a summons for examination out of the jurisdiction. The summons was issued under section 596B of the Corporations Act 2001 (Cth) against Mr Barry Waller and Mr Andrew Waller, who were directors of Cable & Telecoms Limited at the time of New Tel’s takeover of the company. The plaintiff's application was based on the difficulty in effecting personal service on the examinee, who had been overseas and unreachable for some time. The purpose of the summons was to examine the Wallers to determine the merits of a claim by Wainter Pty Ltd against New Tel and the plaintiff, as well as to investigate potential failures by the directors of Cable & Telecoms Limited to disclose the true worth of the company and its assets before and during New Tel’s takeover.

The court had to decide whether to grant the plaintiff leave to serve the summons out of the jurisdiction and whether to adjourn the hearing of the application. The key legal issues involved the provisions of the Corporations Act 2001 concerning service out of jurisdiction and the circumstances under which such leave should be granted. The court considered whether the plaintiff had made sufficient efforts to locate the examinee within Australia and whether the evidence supported the claim that the examinee was overseas and unreachable.

The court found that the plaintiff had not made sufficient efforts to locate the examinee within Australia before seeking leave to serve out of the jurisdiction. The plaintiff's attempts to contact the examinee were limited to telephone calls to the offices of companies where the examinee was a director, which did not provide conclusive evidence of the examinee's overseas status. The court also noted that the plaintiff had not provided any evidence to support the claim that the examinee was overseas and unreachable. As such, the court was not satisfied that the plaintiff had met the necessary criteria for leave to serve out of the jurisdiction. Consequently, the application for leave to serve out of the jurisdiction was adjourned and the application to be heard was dismissed.

In light of the above, the court made orders that the plaintiff's ex parte application dated 28 April 2008 be adjourned, the application to be heard on the ex parte application be refused, and that any submissions on costs be filed and served within 7 days of the ultimate determination of the plaintiff’s application, failing which there would be no order as to costs.