In the matter of Affinity Capital Pty Ltd; Indrasith v Ku

The application before the court was brought by Indrasith, the liquidator of Affinity Capital Pty Ltd, against the fourth and fifth defendants, Ku. The liquidator sought to set aside examination summonses and orders for production, arguing that the defendants were conducting the examinations with an improper purpose. Specifically, the liquidator contended that the defendants intended to use the information obtained to advance their own interests, rather than to properly investigate the affairs of the company. In the alternative, the liquidator sought to limit the scope of the examinations to matters relevant to potential claims by the company or liquidator against the directors or shadow directors.

The court was required to determine whether the defendants' purpose in seeking the examinations was improper, and if so, whether the relief sought by the liquidator was warranted. The court examined the material before it, including the affidavits of the parties, and found that the liquidator had not established that the defendants' purpose was improper. The court considered that the defendants were likely to have information relevant to the company's affairs within the scope of the permissible examinations, and that the liquidator had not demonstrated that the defendants' purpose was to advance their own interests.

Accordingly, the court found that the relief sought by the liquidator was not warranted in relation to the improper purpose argument. However, the court did limit the scope of the examinations that remained on foot to matters relevant to potential claims by the company or liquidator against the directors or shadow directors. The court also limited the orders for production to specific categories, to the extent that they were relevant to the limited scope of the examinations.

The court set aside the examination summonses and orders for production in relation to the fourth and fifth defendants only, and limited the scope of the remaining examinations as described above. The court did not make any orders in relation to the other defendants or the liquidator's alternative application.