Owners of Strata Plan 60693 v Anneliese Pty Limited

[2006] NSWSC 210

CITATION:	Owners of Strata Plan 60693 v Anneliese Pty Limited [2006] NSWSC 210
HEARING DATE(S):	28 February 2006
JUDGMENT DATE :	28 February 2006
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	02/28/2006
DECISION:	Refuse leave to file handwritten draft interlocutory process. Order that the liquidator pay the respondent's costs of today.
CATCHWORDS:	PROCEDURE – Miscellaneous procedural matters – liberty to apply – liberty to apply is not a carte blanche to a party to apply without giving reasonable notice to the other of the relief to be sought.
PARTIES:	Anneliese Pty Limited (in liq) (Applicant) Gregory George McLeay (Repsondent)
FILE NUMBER(S):	SC 4907/05
SOLICITORS:	(A) Pino Fiorentino (liq - in person) (R) David McCrostie

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 28 February 2006

4907/05 Strata Plan 60693 v Anneliese Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: The applicant is the liquidator of the defendant, Anneliese Pty Limited. On 16 December 2005 he filed an interlocutory process claiming orders for the issue of a warrant for the arrest of the respondent, Gregory George Macleay, an order that Mr Macleay pay the applicant's costs of Court attendances associated with public examinations, and the committal or sequestration of Mr Macleay for contempt of a summons and order for production issued on 22 November 2005.

2 The interlocutory process was accompanied by a statement of charge, which alleged that Mr Macleay was guilty of contempt of court (1) for the failure to produce documents to the Court pursuant to orders for production issued on 22 November, (2) for failing without reasonable excuse to appear before the Court at 10am on 12 December in accordance with the summons issued on 22 November, (3) for failing without reasonable excuse to produce documents at 10am on 12 December pursuant to the order for production, and (4) for failing without reasonable cause to produce documents at 9am on 15 December to which date the order for production stood adjourned.

3 The interlocutory process was filed pursuant to leave granted by Nicholas J on 16 December 2005 and was first returnable before his Honour at 3pm that day. His Honour stood the matter over to 10am on 21 December before the Duty Judge, and urged the parties between 16 December and 21 December to resolve their differences. On 21 December, his Honour granted leave to the respondent to file a Notice of Appearance, and made directions that a Report as to Affairs be served on the applicant on or before 12 noon on 22 December 2005, and that the respondent provide access to the liquidator to records of the company and the business and operations of the company contained in a computer by 4pm on 22 December. His Honour granted the parties liberty to apply on a half day's notice and stood the proceedings over to the Registrar's Corporations List on 14 February 2006.

4 On 14 February 2006, the matter came before the Registrar, who directed that any further affidavits be served by 24 February, and stood the proceedings over to 27 February 2006. As I understand it, the liquidator swore an affidavit on 24 February, which he informs me was filed in the Registry that day, although it has not yet reached the Court file. In that affidavit he asks for orders relating to the production of the Report as to Affairs, books and records, and costs, and his remuneration. As I understand it, the liquidator complains that the Report as to Affairs, which was submitted by the respondent, is not in the correct form, and that various books and records of the company have, despite requests, not been provided to him.

5 I am informed from the bar table that, when the matter came before the Registrar on 27 February, the liquidator asked that the matter be referred to the Duty Judge or the Corporations Judge that day, and that the Registrar declined to do so, standing the matter over to 6 March in order to permit the respondent to file evidence in reply to the liquidator's affidavit of 24 February 2006.

6 So far as I can tell, it seems that, being dissatisfied with that decision of the Registrar, the liquidator spoke to a Duty Registrar, and by facsimile, sent at 11.57 on 27 February 2006, purportedly pursuant to the liberty to apply on a half day's notice reserved by Nicholas J, asked to have the matter relisted in the Corporations List at 10am on 28 February 2006. It is pursuant to that request that the matter is in the Duty Judge list today.

7 When the matter was called on before me, it was not apparent what relief was being sought today. After an adjournment, the liquidator produced a draft, handwritten interlocutory process, which indicated that he sought orders that the respondent deliver books and records of the company to him by 1 March 2005 (sic), that the respondent submit a report as to affairs by 1 March 2005 (sic) and, alternatively, a declaration that the Report as to Affairs previously submitted was unsatisfactorily completed and not in compliance with the order of Nicholas J made on 21 December 2005.

8 In my view, these orders are not within the scope of the interlocutory process in respect of which Nicholas J reserved liberty to apply. They involve, in reality, an attempt to review the decision of the Registrar made yesterday. It may well be that in due course the liquidator is entitled to some of the orders which are sought in the draft interlocutory process - although, given the pendency of the contempt proceedings, there would be a real question whether it would be appropriate to make any such order if it carried a risk that compliance might require the respondent to incriminate himself in respect of the contempt application. But, save for the request in the affidavit sworn on 24 February 2006, no formal notice has been given to the respondent of an application for the orders set out or claimed in the draft interlocutory process. All that has happened is that the matter has been relisted - without any interlocutory process, Notice of Motion or other notice specifying the orders that are sought today, such as would give the respondent an opportunity to answer them, being filed.

9 The mere circumstance that a court reserves leave to apply to it on short notice is not a carte blanche to parties, even court-appointed liquidators, to come to Court on that notice without having given reasonable notice to the other party of what relief they are seeking and what material they are relying on to support it.

10 I refuse leave to file the handwritten draft interlocutory process. I order that the liquidator pay the respondent's costs of today. The draft interlocutory process may be returned, and the extract from the exhibit may be returned.

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