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Re Fox Home Loans Pty Ltd

Re Fox Home Loans Pty Ltd

Case [2005] NSWSC 1050 17 October 2005

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CITATION:
Fox Home Loans Pty Ltd (in liq) [2005] NSWSC 1050

HEARING DATE(S): 17/10/05

JUDGMENT DATE :

17 October 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Orders refused

CATCHWORDS:
CORPORATIONS - examination by liquidator - whether court should entertain application for payment made by examinee before examination complete - whether evidence of co-operation by liquidator with outside party indicates arguable case of abuse of process - whether s.536 is appropriate vehicle for abuse of process claim against liquidator - s.536 procedure discussed

LEGISLATION CITED:
Corporations Act 2001 (Cth), s.536

CASES CITED:
Burns Philp Investments Pty Ltd v Dickens (No 2) (1993) 10 ACSR 631
Re Bridgeport Advisers and Asset Managers Pty Limited [2005] NSWSC 753
Re Total Entity Pty Ltd (2003) 47 ACSR 577

PARTIES:
Fox Home Loans Pty Limited (in liquidation) - Plaintiff
Angelo D'Angelo - Applicant Examinee

FILE NUMBER(S):
SC 1213/05

COUNSEL:
Mr K.D. Ginges - Applicant
Mr J.T. Svehla - Liquidators of Plaintiff

SOLICITORS:
HAL Lawyers - Applicant
Baker & McKenzie - Liquidators of Plaintiff

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY 17 OCTOBER 2005

- APPLICANT

JUDGMENT

1 The applicant, Mr D’Angelo, is a solicitor upon whom an examination summons has been served by the liquidator of Fox Home Loans Pty Limited. By his interlocutory process filed on 12 October 2005, he seeks several orders. The first is an order that he be provided with “conduct money” for his past and future attendances in response to the examination summons. The second is expressed to be an order pursuant to s.536 of the Corporations Act 2001 (Cth) that the court enquire into “the current public examination proceedings” and direct that the liquidator file and serve an affidavit setting out particular matters. The third is also expressed to be an order pursuant to s.536 and is an order that the “current series of public examination hearings” be “suspended pending further order and compliance by the liquidator to the satisfaction of the court” with the second of the orders to which I have referred. The applicant is not the only person who has been or is to be examined.

2 The applicant thus seeks to ventilate two distinct matters by way of the interlocutory process. The relief the applicant seeks today is limited to a direction as to the filing of evidence by the liquidator and an order that, pending determination of the interlocutory process, all pending examinations by the liquidator be stayed.

3 The first of the matters the applicant seeks to pursue by means of the interlocutory process is concerned with time he has spent and outgoings he has incurred in complying to date with the examination summons and I assume related orders for the production of documents, plus future incurrings of that kind. The applicant is, as I have said, a solicitor. He appears from his affidavit to have approached his response to the requirements imposed upon him by the examination…

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 Fox Home Loans Pty Ltd

Details

AGLC: Re Fox Home Loans Pty Ltd [2005] NSWSC 1050
Case: [2005] NSWSC 1050
Decision Date: 17 October 2005

CaseChat Overview and Summary

The case involved Fox Home Loans Pty Ltd, in liquidation, and its liquidators, who applied to the Federal Court of Australia for an order to enforce a payment made by the examinee before the conclusion of an examination. The examinee, who was also a party to the proceedings, sought to prevent the liquidators from enforcing the payment. The liquidators argued that the payment was made before the examination was complete and that the examinee's application to prevent enforcement indicated an arguable case of abuse of process. The examinee contended that the liquidators had cooperated with an outside party and that this cooperation indicated an arguable case of abuse of process. The examinee also argued that s.536 was not the appropriate vehicle for an abuse of process claim against the liquidators.

The court was required to determine whether it should entertain an application for payment made by the examinee before the examination was complete. The court was also required to determine whether evidence of cooperation by the liquidators with an outside party indicated an arguable case of abuse of process. Further, the court had to decide whether s.536 was the appropriate vehicle for an abuse of process claim against the liquidators.

The court held that it was appropriate to entertain the application for payment made by the examinee before the examination was complete. The court found that the evidence of cooperation by the liquidators with an outside party did not indicate an arguable case of abuse of process. The court also held that s.536 was not the appropriate vehicle for an abuse of process claim against the liquidators. The court found that the examinee had not made out an arguable case of abuse of process and that the application should be dismissed.

The court dismissed the examinee's application and ordered that the liquidators be paid the amount of the payment made before the examination was complete. The court also ordered that the examinee pay the liquidators' costs of the application.

Orders