Morton v Joynson

[1999] FCA 530

FEDERAL COURT OF AUSTRALIA

Morton v Joynson [1999] FCA 530

CORPORATIONS – liquidation – conduct and incidents of – examination of persons suspected of possessing information – ‘examinable affairs’ for purposes of Corporations Law – whether oppressive or unfair to require attendance for examination – abrogation of privilege against self-incrimination – ‘use immunity’.

Corporations Law, ss 596A, 596B, 597B, 597(12A)

Re Rothwells Ltd (No 2) (1989) 7 ACLC 576
Re GPI Leisure Corporation Ltd (1994) 12 ACLC 815 at 817
Grosvenor Hill (Queensland) Pty Ltd v Barber & Anor (1994) 48 FCR 301 at 305, 306, 307, 308-309, 311-312

ROBERT WILLIAM MORTON v GEORGE HENRY JOYNSON & ORS

VG 3430 of 1998

WEINBERG J

30 APRIL 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3430 OF 1998

IN THE MATTER OF KENNINGTON LAUNDRY AND DRYCLEANERS PTY LTD (in liquidation) ACN 005 391 417

BETWEEN:

ROBERT WILLIAM MORTON
Applicant

AND:

GEORGE HENRY JOYNSON
First Respondent

MARY MOSELY
Second Respondent

MARY ANN VERNON JOYNSON
Third Respondent

WILLIAM GEORGE MOSELY
Fourth Respondent

JUDGE:

WEINBERG J

DATE OF ORDER:

30 APRIL 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The notice of motion filed on 16 February 1999 on behalf of the third and fourth respondents be dismissed. 

2.The third and fourth respondents pay the applicant liquidator’s costs of and incidental to that notice of motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3430 OF 1998

IN THE MATTER OF KENNINGTON LAUNDRY AND DRYCLEANERS PTY LTD (in liquidation) ACN 005 391 417

BETWEEN:

ROBERT WILLIAM MORTON
Applicant

AND:

GEORGE HENRY JOYNSON
First Respondent

MARY MOSELY
Second Respondent

MARY ANN VERNON JOYNSON
Third Respondent

WILLIAM GEORGE MOSELY
Fourth Respondent

JUDGE:	WEINBERG J
DATE:	30 APRIL 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The respondent to this application, Robert William Morton, is the liquidator of Kennington Laundry and Drycleaners Pty Ltd (“Kennington”).  On 16 October 1998 he commenced proceedings number VG 3350 of 1998.  There are four respondents to those proceedings.  They are the first and second respondents, George Henry Joynson and his sister, Mary Mosely, who were each directors of Kennington, and the third and fourth respondents, Mary Ann Vernon Joynson and William George Mosely, who are the spouses of the first and second respondents respectively. 

2. In those proceedings the liquidator alleges that each of the four respondents named above contravened ss 232(2) and 232(4) and s 588G of the Corporations Law.  Those provisions relate to the duties of officers of a corporation, and to the duties of directors to prevent insolvent trading.

3. In the course of carrying out the winding up of Kennington, the liquidator has, in proceedings number VG 3430 of 1998, summonsed each of the four respondents to be examined about the examinable affairs of Kennington. The summonses directed to the first and second respondents were issued pursuant to s 596A of the Corporations Law. There is…