Lamb, K.W. v Fixler, R.

[1994] FCA 142

1 4 2    94

JUDGMENT No. ........ ........ . J , .......,..

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) NO. VG3310 of 1993
GENERAL DIVISION	)

IN THE MATTER of TEXEL PTY. LTD. (IN LIOUIDATION) A.C.N. 006

835 918

BETWEEN :  KENNETH WAYNE LAMB

Applicant

m:  ROBERT FIXLER

Flrst Respondent

m:  JOSEPH FRANCK

Second Respondent

m:  DAVID WELLESLEY MARRINER

Third Respondent

m:  JOSEPH HELLEN

Fourth Respondent

CORAM:	Jenkinson J.
PLACE :	Melbourne

2 8 MAR 1994

m:  10 March, 1994 FEDERAL COURT Or

PRINCIPAL

The summons required Mr. Hellen to attend before the

REASONS FOR JUDGMENT

Application by Joseph Hellen to review a Deputy Registrar's ruling that Mr. Hellen, being examined pursuant to a summons issued under s.596A of the Cor~orations Law, had no reasonable excuse for failing to answer a certain question, and to review the Deputy Registrar's direction that the question be answered.

Deputy Registrar to be examined on oath or affirmation on any matters relating to, inter alia, the winding up of Texel Pty. Limited (in liquidation) ("Texel"). Section 53 of the Corporations Law provides that for the purposes of the definition of examinable affairs in s.9, part of which def inition specifies the winding up of the corporation in relation to which the expression is being used, the affairs of a body corporate include the property of the body. But it might be arguable that the wording of the summons dld not pick up that extension which is contained in s.53 and I put that section aside.

The question Mr. Hellen was required to answer was as to the assets of a company called Mideb Nominees Pty. Limited ("Mideb"), of which he was a director. The connection between the question and the examinable affairs of Texel was said to lie in the circumstances that Mideb was thought to be indebted in a large sum to Texel and the liquidator of Texel would be assisted in the performance of his duties in the

winding up if he had information as to whether a judgment for	the debt would be satisfied. If it would not, expenditure of
costs in litigation to recover the debt might not be in the interests of creditors. For Mr. Hellen it was argued that evidence concerning the likelihood that a judgment for the debt would be satisfied, as distinct from evidence concerning the likelihood of establishing in curial proceedings the existence of the debt, was outside the scope of the
examination.

At the time the case was argued reference was made to a decision of the Full Court of the Supreme Court of South Australia and to a decision by a single judge of this court, Drummond J . The case in which Drummond J. dealt with a question similar to the question before me is reported under the name Re Interchase Corporation Limited (in liauidationl (1994) 12 A.C.L.C. 97. Since judgment was reserved in this case, a Full Court of this court has delivered judgment in an appeal against the decision of Drummond J. The case is not, so far as I know, reported. It is entitled in the Full Court Grosvenor Hill (Oueensland) Ptv. Limited v. Richard Antony Barber and Gresorv Paul Kellp (No. QG213 of 1993). Judgment was delivered on 22 February 1994. The reasoning of Drummond J. was approved and, in my oplnlon, although the Grosvenor Hill Case was concerned not with a question during an examination but with production of documents, the reasoning of the Full Court in that case dictates the conclusion that in the case before me the decision of the Deputy Registrar must be affirmed. That is further confirmed by the circumstances

that another of the cases c~ted in argument before me, the

decision of the Supreme Court of South Australia, is the subject of an application for special leave to appeal to the High Court, and application was made to Dawson J. for a stay of the operation of the orders made in the South Australian case. In the High Court the application is entitled Gerah InlDorts Ptv. Ltd. v . The Duke G ~ O U D Ltd. (in liauidationl. The application was dismissed by Dawson J. on 18 February 1994. The reasons are not, I believe, reported, but the reasoning of his Honour led hls Honour to the conclusion that the application for special leave does not enjoy a substantial prospect of success. The reasoning which his Honour disclosed in his reasons for judgment follows closely that of Drummond

J. in the Interchase Corporation Case.

There is one remaining question. I said that I had put aside s.53 and considerations flowing from it. It is apparent from the reasons of the Pull Court of the Federal Court, and also from the reasons of Dawson J., that some significance was attached to the word "property" in the extended definition in s.53. But it does not seem to me that that could affect the outcome of this case, since another summons could be issued or leave could be obtained to amend the summons under which Mr. Hellen appears for examination.

Accordingly, my conclusion is that the Deputy Regrstrar's ruling and direction should be confirmed, and I will make an order to that effect.

I certify that this and the 3

preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Jenkinson.

Dated: 10 March, 1994

Counsel for Mideb Nominees	Mr. A.C. Archibald Q.C.
and Joseph Hellen	and Mr. M. Sifris
Counsel for Liquidator	Mr. P. Collinson
Solicitors for Applicant	Phillips Fox
Solicitors for Fourth Respondent :	Clayton Utz
Date of Hearing	10 March, 1994

JUDGES' CHAMBERS,
FEDERAL COURT OF AUSTRALIA,
450 LITTLE BOURKE STREET,

MELBOURNE. 3000

25 March, 1 9 9 4

M s . J an C o s t e l l o ,

Principal Reg i s t ry ,

Federa l Court of A u s t r a l i a ,

Level 1 6 ,

L,aw Courts Bui lding,

Queens Square,

SYDNEY.	N.S.W.	2000.
Dear	M s .	C o s t e l l o ,

R e :  Coniputerlsed Leaal Informat ion R e t r ~ e v a l Svstem

I enc lose t h e fol lowing word process ing d i s k (judgment

i nc luded )	f o r	i n c l u s i o n	i n	t h e	d a t a	base	of	Federa l	Court
Judgments .

1. Kenneth Wayne Lamb v . Robert P i x l e r and O r s . - VG3310 of 1 9 9 3 - S i n g l e Judge - Jenlcinson J. - Melbourne - 10

March, 1 9 9 4 .

P lease r e t u r n t h e d i s k when f i n i s h e d wi th f o r f u r t h e r use .

Yours	f a i t h f u l l y ,
Loois Bendall

S e c r e t a r y t o M r . J u s t i c e Jenkinson