Re Calder Park Promotions (In Liquidation) - [2015] VSC 285

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2014 01828

IN THE MATTER of CALDER PARK PROMOTIONS PTY LTD (In Liquidation)
(ACN 138 012 021)

BETWEEN:

CALDER PARK PROMOTIONS PTY LTD (In Liquidation) (ACN 138 012 021)	First Plaintiff
- and -
GLENN ANTHONY CRISP and TRAJAN JOHN KUKULOVSKI (in their capacity as Joint and Several Liquidators of CALDER PARK PROMOTIONS PTY LTD (In Liquidation) (ACN 138 012 021)	Second Plaintiffs

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JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2015
DATE OF JUDGMENT:	19 June 2015
CASE MAY BE CITED AS:	Re Calder Park Promotions (In Liquidation)
MEDIUM NEUTRAL CITATION:	[2015] VSC 285	First Revision 6 July 2015, para 37

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CORPORATIONS – External administration – Examination conducted of director under section 596A of Corporations Act2001 (Cth) – Examinee failed without reasonable excuse to produce documents in response to summons issued under section 596A or to comply with orders made by the Court pursuant to section 597(9) of the Act to produce documents which related to examinable affairs of the company – Application on behalf of liquidators of company that examinee pay the costs thrown away by reason of such non-compliance – Application granted – Court declined to fix such costs pursuant to rule 63.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J S Mereine	Mills Oakley Lawyers
The Examinee	Mr G R McCormick	Goldsmiths Lawyers

HIS HONOUR:

The second plaintiffs (the liquidators) are the liquidators of Calder Park Promotions Pty Ltd (In Liquidation) (‘the Company’). By an originating process filed 17 April 2014 the liquidators made application that summonses be issued for the examination of certain persons in relation to the examinable affairs of the company pursuant to sections 596A and section 596B of the Corporations Act 2001 (Cth) (‘the Act’).

On 23 April 2014, orders were made that a summons (‘the summons’) be issued to Robert Frederick Jane (‘Mr Jane’) pursuant to s 596A of the Act. The summons was issued by the Court on 24 April 2014. As well as requiring Mr Jane to attend to be examined in respect of the examinable affairs of the Company, it required Mr Jane to produce the documents listed in the schedule to the summons. It was an extensive list. No application was made on behalf of Mr Jane that such documents did not relate to the examinable affairs of the company, that compliance with the summons was oppressive or that the summons was too wide in its scope.

The summons was initially returnable on 7 May 2014 when production of the documents listed in the schedule was required. The examination of Mr Jane proceeded on 4 June, 5 June, 31 July and 1 October 2014. The liquidators now seek an order that Mr Jane pay their costs wasted by reason of his failure to produce the documents specified in the schedule to the summons of 24 April…

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: [2015] VSC 285
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case involves liquidators of Calder Park Promotions (In Liquidation) applying for an order that a director of the company pay the costs incurred due to the director's failure to comply with a summons and subsequent court orders to produce certain documents. The summons was issued under section 596A of the Corporations Act 2001 (Cth) and the orders were made under section 597(9) of the same Act. The examinee failed to produce the documents without reasonable excuse, leading to the application for costs.

The legal issues before the court were whether the examinee's failure to produce documents was without reasonable excuse and whether the liquidators were entitled to an order for costs pursuant to section 596A(4)(b) of the Corporations Act. Additionally, the court had to consider whether it should exercise its discretion to fix the costs pursuant to rule 63.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The court found that the examinee's failure to produce the documents was without reasonable excuse, as the documents were relevant to the examinable affairs of the company and the examinee had the means to produce them. The court held that the liquidators were entitled to an order for costs under section 596A(4)(b) of the Corporations Act. However, the court declined to exercise its discretion to fix the costs pursuant to rule 63.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), as the examinee had not been given an opportunity to be heard on the amount of costs.

The court made an order that the examinee pay the costs thrown away by reason of the non-compliance, but did not fix the amount of those costs. The liquidators were directed to lodge an affidavit of costs and the examinee was given an opportunity to make submissions on the amount of costs.

Orders