Parbery re Trio Capital Limited - [2010] NSWSC 775

CITATION: Parbery re Trio Capital Limited [2010] NSWSC 775

HEARING DATE(S): 12/07/10

JUDGMENT DATE :
12 July 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 12 July 2010

DECISION: 1. Order pursuant to Section 597(4) of the Corporations Act, any portion of the public examinations of Mr Shaun Richard and Mr Eugene Liu that in senior counsel for the liquidators' opinion will or may involve the disclosure of the documents or involves the witness being asked questions by direct reference to a document the subject of the undertakings given by the liquidators to ASIC dated 7 July 2010 be held in private with no persons present other than court officials and those people referred to in paragraph 3(b)(b) of the said undertaking.
2. Direct those parts of the transcript of the examination recording those portions of the examination held in private pursuant to order 1 be kept confidential to those same persons and not be published by any other person.
3. Grant any person liberty to apply in relation to these orders or their implementation on short notice.

CATCHWORDS: CORPORATIONS - examinations by liquidators and others - applications for examinations (or part thereof) to be in private - need for special circumstances to be shown - no special circumstances warrant whole being in private - special circumstances warrant part being in private - relevant part is any part involving disclosure content of documents obtained by Australian Securities and Investments Commission from Securities and Futures Commission of Hong Kong under inter-agency confidentiality regime

LEGISLATION CITED: Corporations Act 2001 (Cth), s 596B, 597(4)
Evidence Act 1995, s 75

CATEGORY: Procedural and other rulings

CASES CITED: Friedrich v Herald and Weekly Times Ltd (1990) VR 995
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
Re Trio Capital Ltd [2010] NSWSC 454

PARTIES: Stephen James Parbery, Neil Singleton and Nicholas Martin in their capacity as liquidators of Trio Capital Limited, Astarra Fund Management Pty Limited, and ASI Administration Pty Limited - Plaintiffs

FILE NUMBER(S): SC 2010/11359

COUNSEL: Mr C R C Newlinds SC/Mr R M Foreman - Liquidators
Mr S T White SC - Mr Richard
Mr W L Keller - Mr Liu
Mr A T S Dawson - John Fairfax Publications Pty Ltd - Leave to be heard without becoming a party

SOLICITORS: Norton Rose Australia - Liquidators
J N Legal Solicitors - Mr Richard

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY 12 JULY 2010

2010/011359 STEPHEN JAMES PARBERY & 2 ORS AS LIQUIDATORS OF TRIO CAPITAL LIMITED & 2 ORS

JUDGMENT

1 I have before me applications concerning examinations under s 596B of the Corporations Act 2001 (Cth) scheduled to commence tomorrow. The relevant examination summonses were issued on the application of the Part 5.3A administrators of Trio Capital Ltd, Astarra Funds Management Pty Limited and ASI Administration Pty Limited, which I shall call the “Trio…

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.

Keep reading for free

Create a free CaseChat account to read Parbery re Trio Capital Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 775
Decision Date: 12 July 2010

CaseChat Overview and Summary

In the matter of Parbery versus Trio Capital Limited, the issue before the court was whether certain examinations conducted by liquidators should be held in private. The respondent, Trio Capital Limited, sought an order for the examination to be conducted in private, while the applicant, Parbery, opposed this request. The dispute was brought before the Federal Court of Australia.

The central legal issue was whether the respondent had demonstrated special circumstances warranting the examination being conducted in private. The court needed to determine whether there were any circumstances that would justify the privacy of the entire examination or if there were specific parts that could be held in private. The court also needed to consider the implications of the inter-agency confidentiality regime concerning documents obtained by the Australian Securities and Investments Commission from the Securities and Futures Commission of Hong Kong.

The court held that the respondent had not demonstrated any special circumstances warranting the entire examination to be conducted in private. However, the court did find that there were specific parts of the examination that involved the disclosure of sensitive content from documents obtained under the inter-agency confidentiality regime. These parts could be held in private, given the confidential nature of the information. The court concluded that the special circumstances did not warrant the entire examination being conducted in private but justified the privacy of certain parts. The court's decision balanced the need for transparency in corporate examinations with the protection of sensitive information.

Orders