Re Bill Express Limited (No. 1) - [2010] VSC 651

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

No. S CI 2009 10799

In the matter of BILL EXPRESS LIMITED

SANDRO DI DONATO	First Applicant
and
PETER COUPER	Second Applicant
v
CRAIG DAVID CROSBIE and IAN MENZIES (as joint and several liquidators of Bill Express Limited (in liquidation))	Respondents

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2010
DATE OF JUDGMENT:	5 March 2010
CASE MAY BE CITED AS:	Re Bill Express Limited (No. 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 651

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CORPORATIONS ― Examinations of persons associated with company in liquidation ― Summonses issued pursuant to s 596B of the Corporations Act 2001 ― Application pursuant to order 11 r 5 of the Supreme Court (Corporations) Rules 2003 for discharge of summonses by reason of scope of documentation sought being too broad in time and description ― Application to set aside summons for examination on basis of vagueness and uncertainty in description of documents ― Applications to set aside summonses dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr M Clarke	Mills Oakley Lawyers
For the Respondents	Mr P Bick, QC with Mr K Tsiakis	Freehills

HIS HONOUR:

On 18 December 2009 Messrs Crosbie and Menzies who are the joint and several liquidators of Bill Express Limited (in liquidation) (“Bill Express”) filed an originating process seeking orders for the public examination of 15 examinees pursuant to ss 596A and 596B of the Corporations Act 2001 (Cth) (“the Act”) in relation to the affairs of Bill Express.

On 21 December 2009, I made orders for the issue of summonses for the examination of the persons described in the originating process and in the affidavit in support of Craig David Crosbie sworn 18 December 2009. Pursuant to s 596C of the Act that affidavit is a confidential document and not to be inspected except on the order of a Judge or Associate Judge of this Court. However, much of what is contained in that affidavit in relation to Messrs Couper and Di Donato is repeated in the affidavit of Mr Crosbie sworn 4 February 2010 and relied upon by the liquidators in opposition to this application

On 7 January 2010, two of the examinees, Peter Couper and Sandro Di Donato were served with their respective summonses by service upon their solicitors, Mills Oakley Lawyers, who had previously indicated to the liquidators’ solicitors that they had instructions to accept service.

Both summonses were issued pursuant to s 596B of the Act. The summons directed to Mr Di Donato requires him to produce to the Court the books detailed in Schedule 1 to the summons. That schedule provides relevantly:

Schedule 1
All books and records relating to the affairs of Bill Express Limited (in liquidation) ACN 090 059 564 and any of its subsidiaries referred to in Schedule 2 (collectively the Bill Express Group) between the period 1 January 2005 and 8 July 2008, as are in your possession, custody…

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: [2010] VSC 651
Decision Date: 5 March 2010

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Re Bill Express Limited (No. 1) dealt with applications to discharge and set aside summonses issued under section 596B of the Corporations Act 2001. The company, Bill Express Limited, was in liquidation, and the liquidator sought to examine individuals associated with the company. The applicants challenged the summonses on the grounds that the scope of the documentation sought was too broad and the description of the documents was vague and uncertain.

The legal issues before the court included whether the summonses were too broad in their temporal and descriptive scope, and whether the description of the documents was so vague and uncertain as to warrant setting aside the summonses. The applicants argued that the scope of the documentation sought by the liquidator was excessively broad, extending beyond the period relevant to the liquidation and encompassing a wide array of documents without sufficient specificity. Additionally, the applicants contended that the descriptions of the documents in the summonses were vague and uncertain, making it difficult to understand what exactly was being sought.

The court found that the liquidator's request for documentation was reasonable and within the scope permitted by the statute. The court held that the temporal scope of the documentation sought was appropriate given the nature of the investigation into the company's affairs, and the descriptions provided were sufficiently clear to enable the applicants to understand what documents were being requested. The court dismissed the applications to discharge and set aside the summonses, ruling that the liquidator's requests were neither overly broad nor vague, and that the summonses met the legal requirements set out in the Corporations Act 2001 and the Supreme Court (Corporations) Rules 2003.

Orders