Quigley (Liquidator) v Kimber, in the matter of Busen Pty Ltd (in liq)

[2017] FCA 1033

FEDERAL COURT OF AUSTRALIA

Quigley (Liquidator) v Kimber, in the matter of Busen Pty Ltd (in liq) [2017] FCA 1033

File number(s):	WAD 112 of 2017
Judge(s):	SIOPIS J
Date of judgment:	31 August 2017
Date of hearing:	Determined on the papers.
Date of last submissions:	18 August 2017
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	No Catchwords
Number of paragraphs:	15
Counsel for the Plaintiff:	Mr DK Cooper
Solicitor for the Plaintiff:	Cooper Legal
Counsel for the Defendant:	The defendant appeared in person.

ORDERS

WAD 112 of 2017

IN THE MATTER OF BUSEN PTY LTD (IN LIQUIDATION) (ACN 009 310 829)

BETWEEN:

PETER RAYMOND QUIGLEY IN HIS CAPACITY AS LIQUIDATOR OF BUSEN PTY LTD (IN LIQUIDATION) (ACN 009 310 829)

Plaintiff

AND:

MURRAY SAMUEL KIMBER

Defendant

JUDGE:	SIOPIS J
DATE OF ORDER:	31 AUGUST 2017

THE COURT ORDERS THAT:

1.The defendant’s application to set aside the examination summons, dated 14 July 2017 addressed to him (the Murray Kimber examination summons), is dismissed.

2.The Murray Kimber examination summons is to be returnable at 2:30 pm on 26 September 2017.

3.The costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J:

1. Mr Peter Quigley in his capacity as liquidator of Busen Pty Ltd (in liq) (Busen) commenced this proceeding on 2 March 2017 against Mr Murray Kimber, a former director of Busen.

2. In the proceeding, Mr Quigley as liquidator claims an order pursuant to s 588FF of the Corporations Act 2001 (Cth) directing that Mr Kimber pay to Busen an amount equal to the amount which Mr Quigley claims Busen paid as an unfair preference under s 588FA of the Corporations Act to Mr Kimber.

3. On 22 March 2017, at a directions hearing, the Court made orders for the filing of an affidavit by Mr Kimber in opposition to the claim made by Mr Quigley.

4. On 2 May 2017, Mr Kimber duly filed an affidavit in opposition to the claim made by Mr Quigley.

5. On 22 May 2017, Mr Quigley brought an application to extend the time to file his affidavit in response on the basis that the matters which had been raised by Mr Kimber in his affidavit required further investigation.

6. On 25 May 2017, Mr Kimber filed an affidavit in opposition to the interlocutory application.  In that affidavit, Mr Kimber deposed that he did not have the means to satisfy any judgment that may be obtained against him in the unfair preference proceeding.

7. On 28 June 2017, Mr Quigley as liquidator of Busen applied to the Court in matter WAD 317 of 2017 for orders to issue examination summonses pursuant to s 596A of the Corporations Act to Mr Kimber and Mr Keith Desmond Kimber, another director of Busen, and pursuant to s 596B of the Corporations Act to two other persons.

8. By order, dated 12 July 2017, in WAD 317 of 2017, Deputy District Registrar Stanley ordered that summonses for examination under s 596A of the Corporations Act be issued to each of Mr Kimber and Mr Keith Kimber, and also that examination summonses be issued under s 596B of the Corporations Act to Mr Carl Stephen Longshaw of PKF Mack, a firm of accountants, and Mr Dinesh Singh Panwar.  The examination summons issued to Mr Kimber requires that he produce 20 categories of documents going to his assets and liabilities and those of a number of entities and trusts with which he is associated.

9. The examination summons referred to above was duly served on Mr Kimber, the defendant to this proceeding.

10. On 19 July 2017, there was a directions hearing in relation to this proceeding.

11. During that directions hearing, Mr Kimber made what was, in effect, an oral application to discharge the examination summons against him.

12. In light of the fact that Mr Quigley as liquidator of Busen has already commenced this proceeding against Mr Kimber, I ordered that the parties file submissions in respect of Mr Kimber’s application for discharge of the examination summons under s 596A of the Corporations Act addressed to him.  These submissions have now been received.

13. The Court has the power to set aside an examination summons if the summons has been issued for an improper purpose.  Mr Kimber’s concern is that the examination summons has been issued to him whilst this proceeding against him is pending, and that he will be prejudiced in the conduct of his defence in this proceeding by being examined by the liquidator on matters relevant to the defence.  Mr Kimber contends that the examination will be a “dress rehearsal” of his cross-examination in the trial of this proceeding.  Further, he says that the issue of the examination summons constitutes an invasion of his privacy in circumstances where no liability has been established against him for the monies claimed by the liquidator.

14. In my view, Mr Kimber’s application to set aside the examination summons issued to him is to be dismissed.

15. The liquidator’s examination summons to Mr Kimber has been issued in response to Mr Kimber’s statement in his affidavit of 25 May 2017 that he did not have sufficient means to satisfy any judgment that may be obtained against him by Mr Quigley as liquidator of Busen in this proceeding.  The liquidator’s purpose in issuing the examination summons is to examine Mr Kimber on this question.  It has been recognised that it is legitimate for a liquidator to seek the issue of an examination summons to a person for this purpose, even after the liquidator has commenced a proceeding against that person.  (See, for example, Gerah Imports Pty Ltd v The Duke Group Ltd (1993) 61 SASR 557 at 564-565, Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301 at 307.)

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        31 August 2017