Onefone Australia Pty Ltd v One.Tel Ltd - [2007] NSWSC 268

Reported Decision:
61 ACSR 429

New South Wales

Supreme Court

CITATION: Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 268
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/03/07

JUDGMENT DATE :
27 March 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Interlocutory processes dismissed with costs

CATCHWORDS: CORPORATIONS - winding up - examination of officers and others by special purpose liquidator - application for discharge of examination summonses - whether examinations of two persons summoned would be oppressive and an abuse of process because they had already been examined by general liquidators and by ASIC - where evidence shows that each such person had answered that his prior examination had not covered all relevant knowledge - where general liquidator had stated in evidence that no attempt had been made to canvass relevant subject fully in earlier examinations - where applicants advance various grounds for conclusion that all possible causes of action that special purpose liquidator may investigate are hopeless - consideration of various matters relevant to statutory causes of action - extent to which conclusions on availability and viability of causes of action to liquidator should be reached upon an application of this kind - whether order extending time under s.588FF(3)(b) and made within the specified three year period may be varied by an order made after the end of the three year period which extends time further so that the further extension is the product of an application made within the three year period - application for access to s.596C affidavit by applicants' legal advisers on confidential basis - application for direction that examinations be restricted to specified matters

LEGISLATION CITED: Australian Securities and Investments Commission Act 2001 (Cth), s.19
Corporations Act 2001 (Cth) Part 5.9, ss.588FC, 588FE, 588FF(1), 588FF(3), 596B, 596C(2), 596F(1)(a)

CASES CITED: BP Australia Ltd v Brown (2003) 58 NSWLR 322
Davies v Chicago Boot Co Ltd (2006) 58 ACSR 505
Davies v Chicago Boot Co Ltd [2007] SASC 12
Gordon v Tolcher (2006) 231 ALR 582
Grimwade v Federal Commissioner of Taxation (1949) 78 CLR 199
Hamilton v Oades (1989) 166 CLR 486
McGrath v National Indemnity Co (2004) 182 FLR 309
Meteyard v Love (2005) 65 NSWLR 36
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 69
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 112
Re Excel Finance Corporation Ltd; Worthley v England (1994) 52 FCR 69
Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559
Re Godfrey (as Liquidator of Pobjie Agencies Pty Ltd) [2007] NSWSC 138
Rodgers v Commissioner of Taxation (1998) 88 FCR 61
Scott v Casualife Furniture International Ltd (2005) 195 FLR 170
Sent v Andrews (2002) 6 VR 317
Tolcher v Gordon (2005) 53 ACSR 442
Veremu Pty Ltd v Ezishop.Net Ltd (2003) 47 ACSR 681

PARTIES: Onefone Australia Pty Limited - First Plaintiff
DCA Resources Australia Pty Limited - Second Plaintiff
Pacific Finance Group Pty Limited -…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 268
Decision Date: 27 March 2007

CaseChat Overview and Summary

Onefone Australia Pty Ltd, the applicant, sought to wind up One.Tel Ltd, the respondent, and applied for examination summonses to be issued against two individuals who had been officers of One.Tel. The applicants sought to examine these individuals again, despite the fact that they had already been examined by the general liquidators and the Australian Securities and Investments Commission (ASIC). The applicants argued that the previous examinations had not covered all relevant knowledge and that the general liquidator had not fully canvassed all relevant subject matter. They also argued that all possible causes of action that the special purpose liquidator may investigate were hopeless. The applicants also sought access to a confidential affidavit under section 596C of the Corporations Act 2001 (Cth) and directions that the examinations be restricted to specified matters.

The court considered whether the examinations would be oppressive and an abuse of process. The court noted that the prior examinations had not covered all relevant knowledge, and the general liquidator had not fully canvassed all relevant subject matter. The court also considered the availability and viability of causes of action to the liquidator. The court concluded that the statutory causes of action were not hopeless and that the examination of the two individuals was necessary. The court also considered whether an order extending time under section 588FF(3)(b) of the Corporations Act 2001 (Cth) could be varied by an order made after the end of the three-year period. The court concluded that the order could be varied by an order made within the three-year period. The court granted the application for examination summonses and access to the confidential affidavit under section 596C of the Corporations Act 2001 (Cth). The court also directed that the examinations be restricted to specified matters.

The court ordered that examination summonses be issued against the two individuals and that they be examined by the special purpose liquidator. The court also ordered that the applicants' legal advisers be granted access to the confidential affidavit under section 596C of the Corporations Act 2001 (Cth) on a confidential basis. The court further ordered that the examinations be restricted to specified matters.

Orders