Re Bill Express Limited (No. 4)

[2011] VSC 319

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

CORPORATIONS LIST

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

---

JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	The parties filed written submissions consequent on delivery of reasons on 24 November 2010.
DATE OF JUDGMENT:	5 April 2011
CASE MAY BE CITED AS:	Re Bill Express Limited (No. 4)
MEDIUM NEUTRAL CITATION:	[2011] VSC 319

---

CORPORATIONS ― Costs - Winding up in insolvency ― Examination of directors and other persons associated with company in liquidation ― Application by ASIC for its costs of being heard as interested party in application by liquidators for orders that questions put and answers given at examination be recorded in writing and that examinee sign written record of examination ― Examinee ordered to pay ASIC’s costs as interested party under r 2.13 of the Supreme Court (Corporations) Rules 2003.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Moore	Mills Oakley Lawyers
For the Respondents	Mr C. Truong	Australian Securities and Investment Commission

HIS HONOUR:

1. On 24 November 2010, I published reasons in respect of an application by the Plaintiffs who are the liquidators of Bill Express Limited (in liquidation) that the questions put and the answers given by Mr Peter Couper during the examination conducted of him on 9, 11, 13 and 20 May 2010 be recorded in writing and that Mr Couper sign the written record of the examination.  I invited the parties to file written submissions with my associate in relation to the costs of that application and this has occurred. These reasons deal with the application by ASIC that its costs of being heard as an interested party in the application be paid by Mr Couper.

1. Mr Couper resisted the application on the grounds set out in my reasons.  In brief terms, it was contended on his behalf that no such order should be made because first, it can only be made at the commencement of examination and that secondly, such an order was discretionary and in that case the discretion should be exercised against making such an order as to do so would cause Mr Couper an injustice. 

1. Significantly, Mr Couper also sought a direction under s 596F(1)(e) that in the event that an order was not made under s 597(13), the transcript of the examination should not be inspected by or provided by the plaintiffs to ASIC.  It was said that there was potential harm to Mr Couper if an order was made under s 597(13) as the availability of the transcript would expose him to the risk that investigating authorities, including ASIC, might use the record to gather evidence against him. 

1. At the hearing of this application, ASIC sought to be heard to support the plaintiff’s application.  It was represented by Mr Cam Truong of Counsel.  Mr Dean SC and Mr J. Moore of Counsel who appeared on behalf of Mr Couper, opposed ASIC’s application to be heard in the application. 

1. I rejected that submission. As required by r 11.3(6) of the Supreme Court (Corporations) Rules 2003, ASIC was given notice of the examination by the plaintiffs. I granted ASIC leave to be heard as an interested party under r 2.13 of the Corporations Rules. In my view, the purpose of ASIC being provided with notice of examinations by r 11.3(6) is to enable intervention in an appropriate case, which in this case it did.

1. I consider that by reason in particular of the application made by Mr Couper for a direction preventing ASIC having access to the transcript of the examination that ASIC was fully justified in seeking intervention to protect their position as the regulatory authority.  Such an application had the potential to impede ASIC in the performance of its role as the investigating and regulatory authority in the Bill Express insolvency administration.  The Bill Express Group has a deficiency of approximately a quarter of a billion dollars and there is a very significant element of public interest involved. For this reason, ASIC became more than a mere interested party and had a discrete interest to that of the plaintiffs to protect its right to access to the transcript of the examination.  In the result, it was successful in protecting its position. 

1. ASIC submitted that once an order made under s 597(13), that the questions put to the examinee and the answers given by him at his examination be recorded in writing, a written record was created which is capable of inspection under s 597(14A).  In addition, it submitted successfully that a direction may not be made under s 596F(1)(e) curtailing the right of inspection given by s 597(14A) in relation to a written record ordered to be made under sub‑s (14). 

1. These submissions were of central significance to ASIC’s interests.  They were not made by the plaintiffs.  The Court was assisted by Mr Truong’s submissions in respect of those issues. 

1. I consider the situation is one which falls within the principle considered by an authority referred to me by both counsel in their written submissions, the West Australian Court of Appeal’s decision in Speno Rail Maintenance (Australia) Pty Ltd v Metal Minerals Insurance Pty Ltd.  The Court stated at [8]:

The position of an intervenor in relation to costs was considered in some detail by Debelle J in City of Burnside v A-G (SA) (1994) 63 SASR 65 at 67-68. His Honour concluded that in the Probate and Admiralty Jurisdiction, and at general law, as a general rule an intervenor is not awarded separate costs even if successful. A successful intervenor would be entitled to his or her costs only if the intervention was necessary to protect his or her rights, as would be the case if no party contended for the position adopted (successfully) by the intervenor.

1. I consider ASIC’s involvement in the application went beyond mere well intentioned assistance to the Court.  ASIC became in reality a contradictor whose interests were under direct attack and could have been potentially adversely affected by the Court’s ruling. ASIC’s submissions, rather than being of a generic nature and fashioned for the general assistance of the Court were crafted to oppose Mr Couper’s application with particular regard to ASIC’s position as regulator in the Bill Express insolvency administration.

1. Mr Moore submitted that ASIC was unsuccessful in respect of its submission in relation to the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic). That is so, but such submission occupied very little of the Court’s time and was rejected promptly by me in the running of the application.

1. In the circumstances, I consider that Mr Couper should pay ASIC’s costs of the argument which took place on 23 July 2010 in respect of the plaintiffs’ application for an order under s 597(13). 

---