Re Bill Express Limited (No. 2) - [2010] VSC 639

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST - E

No. S CI 2009 10799

IN THE MATTER OF BILL EXPRESS LIMITED (IN LIQUIDATION)
(ACN 090 059 564)

CRAIG DAVID CROSBIE AND IAN MENZIES CARSON (as joint and several liquidators of Bill Express Limited) (IN LIQUIDATION) (ACN 090 059 564)	Applicants
- And-
PETER COUPER	Respondent

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JUDGE:	GARDINER As J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2010
DATE OF JUDGMENT:	24 November 2010
CASE MAY BE CITED AS:	Re Bill Express Limited (No. 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 639

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CORPORATIONS – EXTERNAL ADMINISTRATION – Examination of directors and other persons pursuant to Section 596A and 596B of the Corporations Act 2001 (Cth) – Application by liquidators for order under s 597(13) of the Corporations Act2001 (Cth) that questions put and answers given by examinee during examination be recorded in writing and that examinee sign written record – Whether such orders sought are required to be made at commencement of the examination – ASIC seeking leave to make submissions as an interested party pursuant to Rule 2.13 of the Supreme Court (Corporations) Rules 2003 - Examinee seeking to prevent access to transcript of examination to ASIC – Orders made that questions put to examinee and answers given at examination be recorded in writing and that examinee sign written record – Refusal to make directions preventing access of written record to ASIC under s 596F(1)(f) of the Corporations Act 2001 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Bick QC with Mr K Tsiakis	Freehills
For the Australian Security and Investments Commission	Mr C Truong	ASIC
For Mr Couper	Mr ME Dean SC with Mr JP Moore	Mills Oakley Lawyers

HIS HONOUR:

On 21 December 2009, orders were made on the application of the plaintiffs, Messrs Crosbie and Carson, who are the liquidators of Bill Express Limited (in liq) (“Bill Express”) for the issue of summonses under ss 596A and 596B of the Corporations Act2001 (Cth) (“the Act”) directed to 15 persons who were summonsed to attend the Court for examination about the affairs of Bill Express and its subsidiaries. Those persons were also required to produce the documents specified in the schedule to the summonses directed to them. One of the persons summonsed was Mr Peter Couper.

On 7 January 2010, Mr Couper and another examinee, Mr Sandro Di Donato, were served by arrangement with the summonses directed to them by service upon their solicitors, Mills Oakley Lawyers.

Mr Couper, together with Mr Di Donato, filed an interlocutory process on 12 January 2010 seeking orders that the summonses issued against them be discharged or varied. On 5 March 2010, I dismissed that application and a subsequent appeal to Davies J was dismissed on 31 March 2010[1].
[1]Di Donato & anor v Crosbie& anor (2010) 77 ACSR 556.

Subsequently, Mr Couper produced documents to the Court in answer to his…

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.

Continue reading Re Bill Express Limited (No. 2)

Details

AGLC: Re Bill Express Limited (No. 2) [2010] VSC 639
Case: [2010] VSC 639
Decision Date: 24 November 2010

CaseChat Overview and Summary

Bill Express Limited was the subject of an external administration which resulted in liquidators being appointed. The liquidators applied to the court to examine certain persons under section 596A and 596B of the Corporations Act 2001 (Cth). The application included a request for the court to order that the questions asked during the examination and the answers provided be recorded in writing and signed by the examinee. The Australian Securities and Investments Commission (ASIC) sought leave to make submissions as an interested party, and the examinee sought to prevent the transcript of the examination from being accessible to ASIC. The court was required to determine whether the orders sought by the liquidators were necessary at the beginning of the examination and whether the examinee could prevent ASIC from accessing the transcript.

The court considered the legislative framework and the purpose of the examination process under the Corporations Act. It concluded that the orders sought by the liquidators, which required the recording and signing of the examination transcript, were indeed necessary at the commencement of the examination. This was to ensure transparency and accountability in the administration process. Regarding the issue of ASIC's access to the transcript, the court held that the examinee's attempt to restrict ASIC's access was not supported by the statutory provisions. The court determined that ASIC had a legitimate interest in the examination, given its role in enforcing and administering the Corporations Act. Consequently, the court refused to make any directions that would prevent ASIC from accessing the written record of the examination.

The court issued orders that the questions put to the examinee and the answers provided during the examination be recorded in writing and signed by the examinee. The court also refused the examinee's application to prevent ASIC from accessing the transcript. This decision ensured that the examination process would be conducted in a transparent manner, with all parties having appropriate access to the examination records as required by law.

Orders