In the matter of DXT (NSW) Pty Ltd
[2016] NSWSC 1966
•08 February 2016
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of DXT (NSW) Pty Ltd [2016] NSWSC 1966 Hearing dates: Monday, 8 February 2016 Date of orders: 08 February 2016 Decision date: 08 February 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Interlocutory application and notice of motion dismissed
Catchwords: CORPORATIONS – extend administration – examinations relating to insolvency – where order for production made in relation to information arising out of examination – where related criminal proceedings – granting of restriction of access to documents produced Category: Procedural and other rulings Parties: Andrew John Spring (plaintiff) Representation: Counsel:
G D McDonald (plaintiff)
File Number(s): 2015/150780
Judgment (EX TEMPORE)
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HIS HONOUR: The applicant, by interlocutory process filed on 3 December 2015 and amended today, is the liquidator of DXT (NSW) Pty Limited. He caused to be issued examination summonses to the present respondents, Ishan Sappideen and Zeenat Sappideen.
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On 26 June 2015, Ishan Sappideen filed an interlocutory process seeking a stay of his examination pending the determination of criminal proceedings against him. An order to that effect was ultimately made on 8 July 2015.
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Meanwhile, the examination of Zeenat Sappideen proceeded on 29 June 2015. In the course of that examination, she referred to a lever arch folder of documents said to contain documents relevant to the receipt and disbursement by the company of a sum of money which apparently ultimately came into her possession. The examining registrar made an order for production to the court of the lever arch folder.
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On 3 July 2015, Ishan Sappideen filed an interlocutory process seeking further relief in respect of his examination, including the discharge of the examination summons and the setting aside of the order for production made in the course of Zeenat Sappideen's examination. On 8 July 2015, Black J made orders adjourning the interlocutory process filed on 3 July 2015, and in the meantime ordered that time for production of the lever arch file be extended to 10 July and that it be placed in a sealed envelope marked "Confidential" and “subject to a claim for legal professional privilege”, not to be opened other than by order of a judge after hearing from the parties on three business days' notice to the parties of any such application.
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On 15 July 2015, Zeenat Sappideen filed a notice of motion seeking an order setting aside or discharging the orders made by the examining registrar on 29 June, including the order for production of the lever arch folder.
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The matter returned before Black J on 28 September 2015, by which time the transcript of Zeenat Sappideen's examination was available. Orders were made restricting access to the transcript, and in particular an order was made – in place of an order formerly made by the examining registrar – that she was not to discuss the content of the examination except with her legal advisers for the purposes of obtaining legal advice. The lever arch folder remained the subject of his Honour’s order of 8 July, to which I have already referred. Directions were made for the filing of further evidence in support of the 3 July interlocutory process and the 15 July motion.
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Neither Ishan nor Zeenat Sappideen complied with the directions for service of evidence, nor for service of points of claim in connection with their applications. This was drawn to their attention by a letter from the liquidator's solicitor on 5 November 2015, to which no response was forthcoming. The solicitor formerly acting for Ishan Sappideen filed a Notice of Ceasing to Act on 17 November 2015, identifying the Long Bay Correctional Complex as the address of the defendant last known to him. Notice of Ceasing to Act was also filed on 17 November 2015 by the solicitor formerly acting for Zeenat Sappideen, identifying an address at Gorokan as her address last known to him.
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On 30 November 2015, Black J listed the interlocutory process – in respect of access to documents produced at the examination – on 7 December 2015, and directed service of further affidavits by 3 December 2015. It was presumably pursuant to that that the interlocutory process of 3 December, and the affidavit of Mr Cam of that date, was filed and served.
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The evidence establishes that the 3 December interlocutory process has been sent to Ishan Sappideen at Long Bay, and to Zeenat Sappideen at the Gorokan address. Some further evidence, of dubious admissibility, indicates that the interlocutory process sent to Long Bay came to the attention of Ishan Sappideen, but it seems to me that having regard to the Notice of Ceasing to Act and the address identified in it, the forwarding of the Notice to that address is sufficient service for the purposes of a Notice of Motion or Interlocutory Process.
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I note also the affidavit of Mr Cam of 4 December 2015, which proves service of documents on 3 December 2015 at 2pm by delivery to 4 Wallarah Road, Gorokan; despite there being no response when the agent knocked at the door; the envelope was left at the front door. I am satisfied that all reasonable steps have been taken by communication with Ms Sappideen's former solicitor, and by delivery of documents to her last known address, to bring the present application to her notice.
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Mr Ishan Sappideen's former solicitor has advised the liquidator's solicitor that he does not press any claim of privilege in respect of the documents produced to the court on 10 July 2015. While it is not by any means clear that the only basis upon which Ms Sappideen opposed access was Mr Sappideen's privilege as distinct from her own, in circumstances where all reasonable steps have been taken to bring the present application to her notice, where she has failed to prosecute her notice of motion and when Mr Sappideen – who appears to be the principal – no longer presses a claim for privilege in respect of those documents, it seems to me appropriate to make the orders now sought.
Orders
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The Court therefore orders that:
the interlocutory process filed on behalf of Ishan Sappideen on 3 July 2015 be dismissed;
the notice of motion filed on behalf of Zeenat Sappideen on 15 July 2015 be dismissed;
the applicants have access to the documents produced by Zeenat Sappideen pursuant to order (4) made by Registrar Bellach on 29 June 2015, as subsequently amended on 8 July 2015;
order (2) made by Black J on 28 September 2015 be discharged;
the liquidator cause to be served on Zeenat Sappideen a sealed copy of this order by delivery of the same, addressed to her at 4 Wallarah Road, Gorokan, and by transmittal of a PDF copy thereof by email to her former solicitor, David Matthew Farrer, by 10 February 2016;
liberty be reserved to Zeenat Sappideen to apply by 15 February 2016 to vary or set aside this order;
the operation of these orders be stayed until and including 15 February 2016.
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Decision last updated: 24 April 2018
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