Hughes, in the matter of Firepower Operations Pty Ltd (In Liquidation)

[2009] FCA 1331

FEDERAL COURT OF AUSTRALIA

Hughes, in the matter of Firepower Operations Pty Ltd (In Liquidation) [2009] FCA 1331

CORPORATIONS – application for issue of examination summons under s 596A of the Corporations Act 2001 (Cth)

Corporations Act 2001 (Cth) ss 596A, 596B

IN THE MATTER OF FIREPOWER OPERATIONS PTY LIMITED (ACN 112 074 549) (IN LIQUIDATION)
BRYAN KEVIN HUGHES AS LIQUIDATOR OF FIREPOWER OPERATIONS PTY LTD (ACN 112 074 549) (IN LIQUIDATION)

WAD 197 of 2009

SIOPIS J
5 NOVEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 197 of 2009

IN THE MATTER OF FIREPOWER OPERATIONS PTY LIMITED (ACN 112 074 549) (IN LIQUIDATION)

BRYAN KEVIN HUGHES AS LIQUIDATOR OF FIREPOWER OPERATIONS PTY LTD (ACN 112 074 549) (IN LIQUIDATION)
Plaintiff

JUDGE:	SIOPIS J
DATE OF ORDER:	5 NOVEMBER 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.This application be heard ex parte and be returnable instanter.

2.Pursuant to Section 596A of the Corporations Act an examination summons be issued to Timothy Francis Johnston of or formerly of No 1, Chidley Way, Mosman Park in the state of Western Australia, in the form of the draft examination summons annexed hereto and marked “A”.

3.Such examination summons be returnable before a Registrar at 10.15 am on 26 November 2009.

4.Service of the examination summons may be effected by service of a copy of the sealed summons.

5.There be liberty to the applicant to apply.

Annexure ‘A’

IN THE FEDERAL COURT OF AUSTRALIA          )
WESTERN AUSTRALIA DISTRICT REGISTRY     )
GENERAL DIVISION  )

No. W            of 2009

IN THE MATTER OF FIREPOWER OPERATIONS PTY LTD (in liquidation) ACN 112 074 549

EX PARTE

BRYAN KEVIN HUGHES AS LIQUIDATOR OF
FIREPOWER OPERATIONS PTY LTD (ACN 112 074 549)
(IN LIQUIDATION)
Applicant

SUMMONS FOR EXAMINATION

A.  DETAILS OF SUMMONS

TO: TIMOTHY FRANCIS JOHNSTON of or formerly of No 1 Chidley Way, Mosman Park, Western Australia

You are summoned under section 596A of the Corporations Act to:

(a)    attend before the Registrar at the Federal Court, Commonwealth Law Courts, 1 Victoria Avenue, Perth at 10.15 am on 26 November 2009, and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of Firepower Operations Pty Ltd;

Filed on behalf of the Applicant
Prepared by:
Tottle Partners	Telephone:  [phone]
Lawyers	Facsimile:  9217 6710
Level 40 BankwestTower	Reference:  20080488
108 St George’s Terrace	Contact: Stephen Penrose
PERTH  WA  6000	Summons

(b)   to produce at the examination all those books and records of Firepower Operations Pty Ltd which you have in your power, possession or control.

Date: 5 November 2009

______________________________
Registrar

B.  NOTICE TO PERSON TO BE EXAMINED

The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you.

If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice.

This summons is issued at the request of Bryan Kevin Hughes whose address for service is care of Tottle Partners, Level 40, 108 St Georges Terrace, Perth, Western Australia.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 197 of 2009

IN THE MATTER OF FIREPOWER OPERATIONS PTY LIMITED (ACN 112 074 549) (IN LIQUIDATION)

BRYAN KEVIN HUGHES AS LIQUIDATOR OF FIREPOWER OPERATIONS PTY LTD (ACN 112 074 549) (IN LIQUIDATION)
Plaintiff

JUDGE:	SIOPIS J
DATE:	5 NOVEMBER 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application which is brought by Mr Bryan Kevin Hughes, as Liquidator of Firepower Operations Pty Ltd (In Liquidation) under s 596A of the Corporations Act 2001 (Cth) for the issue of an examination summons to Mr Timothy Francis Johnston.

2. Section 596A of the Corporations Act provides as follows:

   The Court is to summon a person for examination about a corporation’s examinable affairs if:

   (a)an eligible applicant applies for the summons; and

   (b)the Court is satisfied that the person is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending:

   (i)if the corporation is under administration – on the section 513C day in relation to the administration; or

   (ii)if the corporation has executed a deed of company arrangement that has not yet terminated – on the section 513C day in relation to the administration that ended when the deed was executed; or

   (iii)if the corporation is being, or has been, wound up – when the winding up began; or

   (iv)otherwise – when the application is made.

3. The provisions of s 596A require that the Court issues an examination summons if the conditions referred to therein, are fulfilled. Unlike s 596B of the Corporations Act, the Court does not have a discretion as to whether to order that an examination summons should issue. The distinction is of some importance because the range of persons who are eligible to be examined pursuant to an application made under s 596B is considerably wider than those who may be examined pursuant to an application made under s 596A.

4. In support of the application made under s 596A, the applicant relies upon an affidavit of Ms Kazi Mai Lyn Klopper which annexes a company search of Firepower Operations Pty Ltd.

5. The liquidator of a company in liquidation is an “eligible applicant” for the purposes of s 596A. The company search discloses that Mr Bryan Kevin Hughes was appointed the Liquidator of Firepower Operations Pty Ltd on 4 August 2008, and continues to act in that capacity. I am satisfied that he is an eligible applicant under s 596A.

6. I am also satisfied on the basis of the information in the company search that Mr Johnston was a director, and therefore, an officer, of the company at the time its winding up began. He is, therefore, a person to whom s 596A(b)(iii) applies.

7. In those circumstances, I am prepared to make the orders for the issue of an examination summons to Mr Johnston.  In my view, however, the examination summons should be returnable as soon as practicable.  On that basis, I will order that the examination summons be returnable before a Registrar of this Court at 10:15 am on 26 November 2009.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:
Dated:        17 November 2009

Counsel for the Plaintiff:	Mr Stephen Penrose
Solicitor for the Plaintiff:	Tottle Partners

Date of Hearing:	5 November 2009
Date of Judgment:	5 November 2009