In the matter of Liquor National Pty Ltd ACN 100 586 776 (receivers and managers appointed)
[2013] NSWSC 1743
•23 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Liquor National Pty Ltd ACN 100 586 776 (receivers and managers appointed) [2013] NSWSC 1743 Hearing dates: 23 September 2013 Decision date: 23 September 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Order for production made.
Catchwords: PROCEDURE - Plaintiff sought order first defendant deliver up books and records - orders for substituted service made - first defendant failed to appear but provided medical certificate stating he is suffering from severe depressive disorder and is not currently fit to engage in any legal process - plaintiff sought to issue subpoenas to obtain additional evidence as to medical condition of first defendant because concerned first defendant incapable of managing his affairs so that appointment of tutor would be required for matter to proceed - instead of investigating medical condition of first defendant, where service in compliance with the orders for substituted service is established, more appropriate to make final orders which can be served on the first defendant with leave reserved to apply to set them aside. Cases Cited: John v John [1965] P 289 Category: Interlocutory applications Parties: Neil Robert Cussen and Vaughan Neil Strawbridge (plaintiffs)
David Anthony James (first defendant)
Murray James (second defendant)Representation: Counsel:
N M Bender (plaintiffs)
D A Allen (second defendant)
Solicitors:
Kemp Strang (plaintiffs)
File Number(s): 2013/277577
Judgment (ex tempore)
HIS HONOUR: These proceedings were instituted by originating process filed on 13 September 2013 wherein the plaintiffs Neil Robert Coussen and Vaughn Neil Strawbridge, as receivers and managers of a group of companies which for the sake of convenience I shall call the James group, sought primarily an order for delivery up of the books and records of those companies and associated relief, including an injunction restraining the destruction or disposal of those books and records pending the hearing. On 13 September I made orders for substituted service of the proceedings on both defendants and granted an interim injunction restraining them from destroying, disposing of, deleting or altering any of the books of records of the companies in question.
The proceedings returned before the Court on 16 September, when there was an appearance on behalf of the second defendant but not on behalf of the first defendant. Directions were made as between the plaintiff and the second defendant, and the proceedings adjourned to today. Directions were also made in respect of the proceedings against the first defendant, and leave was granted to serve notice of the order by substituted means.
Today, the proceedings have settled as between the plaintiff and the second defendant. However, a medical certificate has been produced which identifies or asserts that the first defendant is suffering from a severe depressive disorder with psychosis resulting in hospitalisation, and that he is currently not fit to engage in any legal process at present. The certificate is expressed to be for the period 26 August to 4 October 2013 and is signed by one Dr A Weiss.
Information has also come into the possession of the plaintiffs as to the whereabouts of the first defendant.
The plaintiff seeks leave to issue subpoenas to obtain additional evidence as to the medical condition of the first defendant, being concerned that the first defendant might be incapable of managing his affairs and thus an incapable person in respect of whom the appointment of a tutor would be required before the matter could proceed.
As I apprehend the position, if the first defendant is under a legal incapacity, then the plaintiff can take no further step in the proceedings without the appointment of a tutor whether at the suit of the first defendant or on the application of the plaintiff. If proceedings continue in the absence of the appointment of a tutor and it turns out that the first defendant is under a legal incapacity, then the proceedings are an irregularity but not void: see John v John [1965] P 289. They might be liable to be set aside, but pending that, as orders of a superior court, they would be valid and effective in the meantime.
It seems to me that pursuing the question of the medical condition of the first defendant at this stage is a distraction, and the better course in the circumstances, where service in compliance with the orders for substituted service is established, is simply to make final orders which can be served on the first defendant with leave reserved to apply to set them aside.
Service of the proceedings in accordance with the orders for substituted service is established by the affidavit of Phillip Mark Kornis of 13 September 2013; the affidavit of Matthew Elsmore sworn 13 September 2013; and the further affidavit of service of Matthew Elsmore sworn 13 September 2013, leave to file which in court is granted.
I order that the first defendant attend before the Court on Monday 14 October 2013 at 9.45am and produce to the court at that time the books and records of the following companies, including an electronic copy of any of those books and records that are in electronic form: (a) Liquor National Proprietary Limited ACN 100586776; (b) Wine National Proprietary Limited ACN 100586785; (c) Sundara Proprietary Limited ACN 003647130; (d) Killara Ten Proprietary Limited ACN 085902174; (e) James Estate Wines Proprietary Limited ACN 061569444; (f) Printed National Proprietary Limited ACN 132502697; and (g) Printed National Australia Limited ACN 107512649.
I reserve leave to the first defendant to apply by notice of motion to be filed on or before 8 October 2013 to vary or set aside these orders, any such motion to be returnable on 14 October 2013.
I adjourn the balance of the proceedings to 14 October 2013 at 9.45 in the corporations judge motions list.
I direct that these orders be entered forthwith.
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Decision last updated: 07 March 2014
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