KMS Imports (Aust) Pty Ltd, in the matter of KMS Imports (Aust) Pty Ltd

[2014] FCA 248

FEDERAL COURT OF AUSTRALIA

KMS Imports (Aust) Pty Ltd, in the matter of KMS Imports (Aust) Pty Ltd [2014] FCA 248

Citation:	KMS Imports (Aust) Pty Ltd, in the matter of KMS Imports (Aust) Pty Ltd [2014] FCA 248
Parties:	KMS IMPORTS (AUST) PTY LTD (ACN 122 833 756) (IN LIQUIDATION)
File number:	WAD 301 of 2013
Judge:	GILMOUR J
Date of judgment:	18 February 2014
Catchwords:	CORPORATIONS - summons for examination – service effected personally – failure to attend for examination – arrest warrant to be issued
Legislation:	Corporations Act 2001 (Cth) s 596B
Date of hearing:	18 February 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Plaintiff:	Mr M Herman
Solicitor for the Plaintiff:	Herman Davis Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 301 of 2013

IN THE MATTER OF KMS IMPORTS (AUST) PTY LTD
(ACN 122 833 756) (IN LIQUIDATION)

KMS IMPORTS (AUST) PTY LTD (ACN 122 833 756)
(IN LIQUIDATION)
Plaintiff

JUDGE:	GILMOUR J
DATE OF ORDER:	18 FEBRUARY 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The matter be adjourned to Chambers for final orders.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 301 of 2013

IN THE MATTER OF KMS IMPORTS (AUST) PTY LTD
(ACN 122 833 756) (IN LIQUIDATION)

KMS IMPORTS (AUST) PTY LTD (ACN 122 833 756) (IN LIQUIDATION) Plaintiff
JUDGE:	GILMOUR J
DATE:	18 FEBRUARY 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The plaintiff, Neil Raymond Cribb, is the liquidator for KMS Imports (Aust) Pty Ltd, and applied in August of last year, pursuant to s 596B of the Corporations Act 2001 (Cth), for Yi Ping Wang to attend before a registrar of the Court on Monday, 2 September 2013 at 3.00 pm to be examined on oath or affirmation about the examinable affairs of KMS Imports (Aust) Pty Ltd. The summons for examination on Form 17 to that effect was served upon Ms Wang on Monday, 19 August 2013. Service was effected personally at 28 Illingbridge Street, Morley in Western Australia by Ms Helen Shaw, a process server. The documents were handed to Ms Wang personally, and at the time of service, Ms Shaw asked the person upon whom she had served the documents, “Are you Yi Ping Wang, the person named in this document?”. The person who had been served replied with words to the effect that she was.

2. At the time of service of the Form 17 summons for examination and letter, $20 conduct money was tendered to Ms Wang.  Ms Wang did not appear before a registrar of this Court on the day scheduled for her examination.  Herman Davis Lawyers for the plaintiff caused a letter dated 16 December 2013 to be delivered to Ms Wang personally on 24 December 2013 concerning this matter.  The letter informed Ms Wang that her public examination had been re-listed for Friday, 17 January 2014 at 2.30 pm at the Federal Court in Perth.  It noted that Ms Wang had not attended the production of documents on 2 September 2013.  It also cautioned her that the plaintiff would invite this Court to issue a warrant for her arrest if she did not attend the adjourned or re-listed public examination.  It urged her as a matter of urgency to contact them in order to discuss the matter. 

3. These matters to which I have referred are supported by an affidavit of Helen Shaw, sworn 26 August 2013, and Mr Andrew Stephen, sworn 16 January 2014 respectively. 

4. Ms Wang neither contacted the lawyers for the plaintiff, nor did she appear before a registrar of this Court on the date 17 January 2014 at 2.30 pm for her public examination. 

5. I was taken by counsel appearing for the plaintiff to an affidavit of Neil Raymond Cribb which was filed in support of the summons for public examination.  It was sworn by him on 5 July 2013.  Exhibit “NRC‑10” to this affidavit is a copy of the certificate of title of land, the address of which is 28 Illingbridge Street, Morley.  This is the address where Ms Wang was served both with the examination summons and with the letter of 16 December 2013. 

6. It discloses that she has lived at that address for a considerable period of time, indeed in excess of 12 years.  I am satisfied that in these circumstances that a warrant be issued for the arrest of Yi Ping Wang substantially in terms of annexure “A” attached to a minute of proposed orders provided by the solicitors for the plaintiff. 

7. I will, however, adjourn this application to enable certain logistical enquiries to be made concerning the arrest of Ms Wang.  I will, thereafter, make orders from Chambers.

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

Associate:

Dated:       26 March 2014