Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi
[2022] VSC 199
•29 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2020 02990
| IN THE MATTER OF IPO WEALTH HOLDINGS NO 2 PTY LTD (ACN 620 610 157) (IN LIQUIDATION) | |
| BETWEEN | |
| JAMES PETER MAWHINNEY | Appellant |
| v | |
| NICHOLAS GIASOUMI AND HAMISH ALAN MACKINNON IN THEIR CAPACITY AS LIQUIDATORS OF IPO WEALTH HOLDINGS NO 2 PTY LTD (ACN 620 610 157) (in liquidation) | Respondents |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2022 |
DATE OF JUDGMENT: | 29 April 2022 |
CASE MAY BE CITED AS: | Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi |
MEDIUM NEUTRAL CITATION: | [2022] VSC 199 |
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CORPORATIONS – Appeal from associate judge – Examination by liquidators – Resumption of adjourned examination ordered – Appeal by examinee – No error in findings that resumed examination not oppressive or an abuse of process – Access to confidential affidavits of liquidators – Discretionary power of court to refuse access – No error in refusal of access – Supreme Court Act 1986 (Vic), s 17(3) – Supreme Court (Corporations) Rules 2013 (Vic), r 16.5 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 77.06, 77.06.1, 77.06.9 – Corporations Act 2001 (Cth), s 596A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Gronow QC Mr A Aleksov | Roberts Gray Lawyers |
| For the Respondents | Mr M Galvin QC Ms N Papaleo | Thomson Geer |
HIS HONOUR:
IntroductionA.
This is an appeal by James Peter Mawhinney (“Mawhinney”) from a judgment delivered by Matthews AsJ on 13 December 2021 (“the Primary Judgment”).[1] The proceeding concerns the liquidation of IPO Wealth Holdings Pty Ltd (“IPO Wealth Holdings”) and 16 special purpose vehicles (together, “IPO Wealth Group”). Mawhinney was the sole director of each of the 17 companies in IPO Wealth Group.
[1]Re IPO Wealth Holdings No 2 Pty Ltd (in prov liq) [2021] VSC 821.
In the Primary Judgment, Matthews AsJ considered whether the respondents (“the Liquidators”) were entitled to examine Mawhinney for an 8th day about the transfer of considerable assets and funds from IPO Wealth Group to other entities controlled by Mawhinney. The transfers were made shortly before the appointment of the Liquidators (initially as receivers). At first instance, Mawhinney challenged the ability of the Liquidators to examine him further, submitting that an 8th day of examination was oppressive, constituted an abuse of process and served no legitimate purpose. He applied to stay the examination (“the Examination Application”). To this end, he also sought access to 2 confidential affidavits that the Liquidators had relied on when applying to examine him (“the Access Application”).
Both applications were dismissed. Her Honour found the affidavits were unlikely to assist in determining Mawhinney’s application and, further, that an 8th day of examination should proceed as it was not oppressive or an abuse of process.
On appeal, Mawhinney submits that Matthews AsJ erred in respect of both the Access Application and the Examination Application. He seeks orders to set aside the Primary Judgment. In lieu of the orders made by her Honour, he seeks the discharge (or permanent stay) of the summons for his examination and an award of costs.
For the reasons that follow, Mawhinney’s appeal will be dismissed. In summary, the decision of Matthews AsJ, in the exercise of her Honour’s discretion, to permit the Liquidators to examine Mawhinney on 2 topics that are indisputably examinable affairs of the corporations in question for approximately half a day should not be disturbed.
History of the proceedingB.
Factual backgroundB.1
The events leading to this proceeding are set out at length in the Primary Judgment.[2] They involved transactions for many millions of dollars, overseas transfers and related party transactions. To put this appeal in its proper context, it is only necessary to set out the following facts.
[2]Primary Judgment, [1]–[58].
IPO Wealth Group operated an unregistered managed investment scheme in the form of a unit trust managed by Vasco Trustees Ltd (“Vasco Trustees”). Vasco Trustees lent money invested in the scheme to IPO Wealth Holdings, on the condition it repay the principal plus interest at a rate of 10 percent per annum. However, IPO Wealth Holdings defaulted on various repayments.
In response, the entities in IPO Wealth Group were placed into receivership, and later liquidation. At the time of liquidation, IPO Wealth Holdings owed more than $79 million to Vasco Trustees.
During their investigations, the Liquidators uncovered evidence that, prior to entering receivership, entities within IPO Wealth Group had transferred assets and funds worth over $30 million to other entities associated with Mawhinney. These entities were registered in Australia, the British Virgin Islands and the United Kingdom.
To uncover further information about these transfers, the Liquidators applied for a summons for examination addressed to Mawhinney, pursuant to s 596A of the Corporations Act 2001 (Cth). In support of their application, the Liquidators filed a confidential affidavit of Hamish Alan MacKinnon (“MacKinnon”) sworn 17 July 2020 (“the First Confidential Affidavit”). On 21 July 2020, Matthews AsJ ordered that a summons for examination of Mawhinney (“the Summons”) be served pursuant to section 596A of the Corporations Act and listed the examination to commence on 17 August 2020. Her Honour also ordered that the First Confidential Affidavit not be made available for inspection other than by the Liquidators or the court.[3]
[3]For completeness, s 596C(2) provides that an affidavit filed in support of an application under s 596B in relation to a discretionary examination “is not available for inspection except so far as the Court orders”. As the First Confidential Affidavit was filed in relation to a mandatory examination under s 596A, a like position was adopted. No exception was taken by Mawhinney to this initial position.
Mawhinney was examined on 17, 19 and 20 August 2020, after which the proceeding was adjourned. The Liquidators were granted liberty to apply within 6 months for the resumption of the examination. The Liquidators exercised that liberty, and Mawhinney was examined again on 25 February, and 22 and 23 March 2021. Once again, the proceeding was adjourned and the Liquidators were granted liberty to apply within 6 months to resume the examination.
The Liquidators exercised this liberty soon after, examining Mawhinney on 29 April 2021 (although not for the entire day). At the conclusion of the hearing, orders were made adjourning the examination and granting liberty to apply within 3 months for the resumption of the examination.
On 29 July 2021, the Liquidators applied for a third time to resume Mawhinney’s examination. In support of their application, they filed a second confidential affidavit of MacKinnon sworn 5 August 2021 (“the Second Confidential Affidavit”). Having reviewed the Liquidators’ application, Matthews AsJ ordered the examination to resume on 25 October 2021 (“the Resumption Order”).
However, on 18 October 2021, Mawhinney filed an interlocutory application in substance seeking, among other things, orders:[4]
[4]The orders as sought were as follows:
1. An extension of time under r 1.10 of the Supreme Court (Corporations Rules) 2013 and thereby r 3.02 of the Supreme Court (General Civil Procedure) Rules 2015 to have the examination summons of 21 July 2020 set aside under r 11.5 of the Supreme Court (Corporations Rules) 2013.
2. An order under r 11.5 of the Supreme Court (Corporations Rules) 2013 discharging the examination summons of 21 July 2020 and the resumption order of 6 August 2021.
3. An order under r 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 that any further examination of Mr Mawhinney be stayed as an abuse of process.
4. If none of 1-3 succeed, a stay or adjournment of the examination under:
a.r 77.06.06 of the Supreme Court (General Civil Procedure) Rules 2015;
b.r 16B.6 of the Supreme Court (Corporations Rules) 2013 and r 84.012 of the Supreme Court (General Civil Procedure) Rules 2015 pending the outcome of an appeal to the Trial Division under s 17(3) of the Supreme Court Act 1986 (Vic) and/or r 84.05(3) of the Supreme Court (General Civil Procedure) Rules 2015.
5. An order under r 11.3(7) of the Supreme Court (Corporations Rules) 2013:
a.granting Mr Mawhinney access to the affidavits, and their exhibits, of Hamish Alan MacKinnon of 5 August 2021 and of 17 July 2020 filed in support of the examination summons and its resumption; and
b.an adjournment of the examination listed for 25 October 2021 and the final hearing of this interlocutory process to provide Mr Mawhinney and his lawyers with sufficient time to review the affidavits.
6. If 5 succeeds, and whatever the outcome of 1-4, an adjournment of the examination for 14 days to permit Mr Mawhinney time to consider the MacKinnon affidavits and make any further application in relation to the examination.
7. If 5 does not succeed, a stay or adjournment of the examination under:
a.r 77.06.06 of the Supreme Court (General Civil Procedure) Rules 2015;
b.r 16B.6 of the Supreme Court (Corporations Rules) 2013 and r 84.012 of the Supreme Court (General Civil Procedure) Rules 2015 pending the outcome of an appeal to the Trial Division under s 17(3) of the Supreme Court Act 1986 (Vic) and/or r 84.05(3) of the Supreme Court (General Civil Procedure) Rules 2015.
(1) Discharging the Summons and Resumption Order.
(2) Ruling that any further examination of Mawhinney be stayed as an abuse of process.
(3) Granting him access to the First Confidential Affidavit and the Second Confidential Affidavit (together, “the Confidential Affidavits”).
In response, the Liquidators filed 2 additional affidavits from MacKinnon sworn 22 October 2021 (“the Current MacKinnon Affidavit”) and 18 November 2021 (“the Further MacKinnon Affidavit”). The Current MacKinnon Affidavit disclosed that, at the examination hearing scheduled to be held on 25 October 2021, the Liquidators intended to examine Mawhinney, broadly speaking, about payments made by IPO Wealth Holdings to related companies and shares allegedly held by related companies.[5] It also noted that, although the Liquidators had already examined Mawhinney in relation to these matters, further enquiries were warranted given the size of the transactions. The Further MacKinnon Affidavit set out the Liquidators’ concern that the related companies were in the process of disposing of the shares in question. Both affidavits were made available to Mawhinney.
[5]See par 26 below.
At the hearing of this appeal, Mawhinney’s senior counsel informed the court that he relied on all submissions made at first instance. Accordingly, details of these submissions are summarised below.
Access ApplicationB.2
B.2.1 Submissions at first instance
B.2.1.1 Mawhinney
Before her Honour, Mawhinney submitted he had an arguable case in respect of the Examination Application and that, because he needed to know the topics on which the Liquidators intended to examine him in order to mount a plausible case of abuse of process, access to the Confidential Affidavits should be granted.
B.2.1.2 The Liquidators
In contrast, the Liquidators submitted the non-confidential Current MacKinnon Affidavit set out the Liquidators’ reasons for needing to examine further, thereby removing any need for Mawhinney to see the Confidential Affidavits. In any event, the Liquidators contended there was sufficient material before the court to enable it to determine the Examination Application without recourse to the Confidential Affidavits.
B.2.2 Decision
On 8 November 2021, Matthews AsJ refused the Access Application on the papers. Her Honour’s reasons were later outlined in the Primary Judgment.[6] However, the orders made on that day included in “Other matters”:[7]
Suffice to say at this point in time that I have formed the view that access to the Confidential Affidavits is not likely to assist in determining the correctness of the Examinee’s challenge to the Summons and the Resumption Order, as the Court is able to fairly and properly determine that challenge in the absence of those affidavits.
I note for the record that this would have been my decision on the Access Application, irrespective of whether or not the Examinee has an arguable case for setting aside the Summons and/or the Resumption Order.
[6]Primary Judgment, [30]-[39].
[7]Ibid, [30].
In the Primary Judgment, Matthews AsJ stated that at the time of determining the Access Application she had inspected the Confidential Affidavits and the Current MacKinnon Affidavit, along with all other material filed by the parties. Her Honour observed that access to a confidential affidavit will not automatically be granted if an arguable case is shown, as the court retains ultimate discretion. She also noted there was no challenge to the issuing of the Summons or the previous iterations of the examination. Her Honour found there were enough reasons to refuse access to the Confidential Affidavits such that it was unnecessary to consider if Mawhinney had an arguable case in respect of the Examination Application. In short, her Honour assumed that even if Mawhinney had an arguable case, in the exercise of the discretion access should not be granted.
More specifically, it was found that Mawhinney had failed to explain how the First Confidential Affidavit, which was sworn 16 months earlier, was relevant to determining the current challenge to the Resumption Order. Her Honour, who had presided over all examinations conducted by the Liquidators in the proceeding, recorded that, not surprisingly, the proceeding had developed significantly during this time. Further, the First Confidential Affidavit was the basis for the issuing of the Summons, and the order for the original issuing of the Summons was not under challenge.[8]
[8]The interlocutory application filed by Mawhinney on 18 October 2021 sought orders setting aside the Summons on the basis that the extended duration of the examination had caused it to become an abuse of process, not on the basis that the issuing of the Summons was improper from the outset: see fn 4 above. Matthews AsJ made a similar observation at first instance: Primary Judgment, [34].
As to the Second Confidential Affidavit, her Honour had previously considered it in making the Resumption Order. Matthews AsJ found it was not likely to assist her in fairly and properly determining the Examination Application. She also found that, as the Current MacKinnon Affidavit set out the matters upon which the Liquidators intended to examine Mawhinney, which he had had the benefit of reading, it was not necessary for Mawhinney to have access to the Second Confidential Affidavit.
Examination ApplicationB.3
B.3.1 Submissions at first instance
B.3.1.1 Mawhinney
Mawhinney submitted that an 8th day of examination would serve no legitimate purpose and would constitute an abuse of process.[9] He submitted it was well-established that the public examination powers in Part 5.9 of the Corporations Act are “extraordinary” in nature, and accordingly must be “used with the greatest care” so as to avoid “mischief or hardship” to the examinee.[10]
[9]As already touched upon, it is estimated that the further hearing will last about half a day.
[10]Primary Judgment, [66]-[69], referring to Re Dalstonville Pty Ltd (in Liq) and Don Leunig Pty Ltd (in Liq) (2018) 133 ACSR 473, 474 [1] (Hetyey JR), Clark v Wood (1997) 78 FCR 356, 358D (Finkelstein J), quoting Re North Australian Territory Co (1890) 45 Ch D 87, 93.2 (Bowen LJ).
More specifically, he advanced 4 main submissions in support of his case:
(1) He had already been subjected to 7 days of examination and an 8th day was oppressive.
(2) Further examination was not necessary because the Liquidators already had enough information.
(3) The resumed examination concerned matters the subject of other proceedings.
(4) The Liquidators’ predominant purpose was to obtain a forensic advantage (which is not a proper purpose).
First, Mawhinney submitted the authorities made clear that examinations cannot be used vexatiously, oppressively or to harass an examinee. This principle, he contended, protected examinees from endless examination. In support, he relied upon Australian Securities and Investments Commission v Karl Suleman Enterprises Pty Ltd (in liq),[11] in which it was held that a court may prevent the resumption of an adjourned examination, especially if it has “been frequntly adjourned or adjourned over a long period of time”.[12] Mawhinney submitted that the present circumstances reached this threshold, especially in light of the fact that the Current MacKinnon Affidavit lacked sufficient detail and there were other methods the Liquidators could use to access information. Further, he contended that essentially the circumstances were such that the oppressiveness and abuse of process amounted to the same thing, as an abuse of process was not limited to the purpose for which the proceeding was brought and included a consideration of the consequences of the proceeding.[13]
[11]Australian Securities and Investments Commission v Karl Suleman Enterprises Pty Ltd (in liq); Application of Stoliar (2003) 44 ACSR 694 (Austin J).
[12]Ibid, 700 [25].
[13]Hamilton v Oades (1989) 166 CLR 486, 502.5 (Deane and Gaudron JJ).
Secondly, Mawhinney contended that the more knowledgeable an examiner is about a company, the stronger the inference should be that the examination is being used for illegitimate purposes (such as obtaining an improper forensic advantage, dress rehearsing cross-examination or applying settlement pressure). He pointed to the fact that 3 other proceedings involving IPO Wealth Group and the Liquidators were (and remain) on foot, namely:
(1) A Victorian civil suit by the Liquidators and IPO Wealth Holdings No 3 Pty Ltd (in liq) (“IPO3”) against 101 Investments Ltd (“101 Investments”), Accloud plc and Mawhinney, in which the Liquidators seek declarations to the effect that an agreement for the sale of 21,250,000 shares in Accloud plc by IPO3 to 101 Investments was validly terminated or otherwise invalid on various grounds.
(2) A Victorian civil suit by the Liquidators and IPO3 against 101 Investments, Mayfair 101 Limited, Eleuthera Group Pty Ltd (“Eleuthera Group”), Online Investments Pty Ltd and Mawhinney, in which the Liquidators seek orders that 3,048,000 shares in Accloud plc (which were issued by Accloud plc to either 101 Investments or Mayfair 101 Limited upon payment by IPO3 of $2,889,502) are held on a resulting trust for IPO3.
(3) A civil suit in the British Virgin Islands by 101 Investments against Eleuthera Group, IPO Wealth Holdings and IPO3, in which 101 Investments seeks declarations that 3 sums of money (totalling $31,764,684.71) are owing by 101 Investments to Eleuthera Group, despite some of the money having originally been paid by IPO Wealth Holdings (“the Overseas Proceeding”). One of the transactions involved the acquisition of shares in Paymate India Ltd (“the Paymate Shares”).
Mawhinney argued that these proceedings, the previous examination questions put to him and the extensive prior communication between the parties, indicated that the Liquidators possessed significant information regarding IPO Wealth Group. In these circumstances, Mawhinney submitted an inference could be drawn that the Liquidators were seeking to examine him for improper purposes.[14]
[14]In an affidavit in opposition to the continuation of the examination, Mawhinney maintained that the Liquidators, by examining him in relation to the Overseas Proceeding, were seeking impermissibly to obtain a forensic advantage as liquidators of the defendant companies in the Overseas Proceeding, impose undue pressure on Mawhinney in relation to the Overseas Proceeding and conduct a “dress rehearsal” of cross-examination in the Overseas Proceeding in the event that the Liquidators’ jurisdictional challenges were unsuccessful: Primary Judgment, [51].
Thirdly, Mawhinney contended that the topics which were to be covered during the 8th day of examination overlapped with the subject matter of the 3 other proceedings to such an extent that it ought to be inferred that the Liquidators’ real purpose was to gain an improper forensic or tactical advantage. Further, Mawhinney argued that the failure of the Liquidators to disclose in sufficient detail the information they wished to learn during the resumed examination warranted an inference that the Liquidators had some other proper purpose.
Fourthly, Mawhinney submitted that the 8th day of examination would constitute an abuse of process. While accepting that the onus of establishing an abuse of process is heavy, he contended the onus will become lighter the longer an examination lasts. Given the examinations had spanned a year, he submitted the onus on him was minimal and could be easily discharged.
B.3.1.2 The Liquidators
Broadly, the Liquidators’ position, as recorded in the Current MacKinnon Affidavit, was that they did not intend to use the resumed examination to examine in relation to any matters the subject of proceedings already on foot or to use it as a dress rehearsal for cross-examination in those proceedings.
B.3.2 Decision at first instance
After setting out the applicable principles and recording the submissions made, her Honour held that she did not consider there was a delay in the making of the Examination Application which would justify its refusal.[15] However, for the reasons explained in the remainder of this judgment, Matthews AsJ went on to refuse both the Access Application and the Examination Application.
Grounds of appeal and submissionsC.
[15]Primary Judgment, [132].
Both parties agreed that, in order to be successful on appeal, Mawhinney needed to show that Matthews AsJ had made an error of the kind identified by the High Court in House v The King.[16]
[16](1936) 55 CLR 499, 504.9-505.5 (Dixon, Evatt and McTiernan JJ).
The grounds of appeal were in very general terms. They simply stated that her Honour had erred in finding that an 8th day of examination would not be oppressive or an abuse of process, and that she erred in not granting Mawhinney and his lawyers access to the Confidential Affidavits.
Access ApplicationC.1
C.1.1 Mawhinney
In relation to the Confidential Affidavits, Mawhinney submitted that her Honour had failed to follow the appropriate sequence of tests in determining whether access should be granted. He drew attention to her Honour’s conclusion that she did not need to form a view on whether or not he had an arguable case in respect of the Examination Application, as the Confidential Affidavits were not necessary to determine the issues in dispute. In Mawhinney’s submission:
(1) The authorities establish that the “conventional course” is for the court to determine if the applicant has an arguable case before deciding whether to refuse access on other grounds.
(2) Access should prima facie be given if an arguable case is established. In failing to consider whether an arguable case existed, her Honour did not have regard to how the merits of the Examination Application affected the interests of justice in permitting access.
(3) If the Second Confidential Affidavit was irrelevant (as her Honour had concluded), then there was a real controversy as to whether it provided sufficient justification for the Resumption Order.
(4) It was procedurally unfair to refuse access when the Liquidators had relied upon the Confidential Affidavits at a hearing on 25 November 2021 (despite having previously submitted the Confidential Affidavits were irrelevant).
C.1.2 The Liquidators
The Liquidators submitted that her Honour had considered whether Mawhinney had an arguable case. It appeared that they contended that properly construed the Primary Judgment had established that Mawhinney did not have an arguable case.
Regardless, the Liquidators submitted that the court retains complete discretion to decide whether to grant access to confidential affidavits. Even if Matthews AsJ had erred in considering whether there was an arguable case, they contended her Honour had correctly refused access on other grounds, namely:
(1) The First Confidential Affidavit had been sworn 16 months before the Primary Judgment was handed down.
(2) The liquidation had developed significantly since this point, rendering the First Confidential Affidavit of limited value to Mawhinney.
(3) The parts of the Second Confidential Affidavit that were relevant to Mawhinney had already been disclosed in the Current MacKinnon Affidavit.
The Liquidators therefore contended that there was no basis to interfere with the exercise of the court’s discretionary power.
C.1.3 Mawhinney’s submissions in reply
In reply, Mawhinney contended it was untenable to suggest that Matthews AsJ had found that he did not have an arguable case. Rather, he submitted her Honour had expressly stated that it was unnecessary to decide the point.
Examination ApplicationC.2
C.2.1 Mawhinney
In respect of the Examination Application, Mawhinney’s written submissions repeated many of the arguments he had advanced at first instance. He again submitted that the examination power is an “extraordinary power” that “ought to be very carefully exercised” to avoid causing “unnecessary mischief” or “hardship” to the examinee.[17] He emphasised that, when deciding whether to order a public examination, the court should balance 2 important considerations. First, the need to enable liquidators to collect all necessary information to discharge their duty to properly investigate and, secondly, the need to ensure justice to the examinee.[18]
[17]Citing Re Dalstonville Pty Ltd (in Liq) and Don Leunig Pty Ltd (in Liq) (2018) 133 ACSR 473, 474 [1] (Hetyey JR); Clark v Wood (1997) 78 FCR 356, 358D (Finkelstein J), quoting Re North Australian Territory Co (1890) 45 Ch D 87, 93.2 (Bowen LJ); Re Wright; Ex parte Willey (1883) 23 Ch D 118, 128.7 (Jessel MR).
[18]See, for example, Re Dalstonville Pty Ltd (in Liq) and Don Leunig Pty Ltd (in Liq) (2018) 133 ACSR 473, 474 [1]; Re Spedley Securities Ltd; Ex parte Potts & Gardiner (1990) 2 ASCR 152, 154.6 (Young J).
Mawhinney again referred to authority for the proposition that an examination that has been frequently adjourned (or adjourned over a long period of time) may be stayed or prevented from resuming at all, or without the provision of a further affidavit.[19]
[19]Australian Securities and Investments Commission v Karl Suleman Enterprises; Application of Stoliar (2003) 44 ACSR 694, 700 [25] (Austin J).
Mawhinney then repeated his submission that the proposed 8th day of examination contravened the above principles. While it was accepted that the length of the examination to date was not decisive, he submitted the examination was already abnormally long; it had run for 7 days that had been spread out over a year due to frequent adjournments. He further submitted that if an examining party mismanaged the opportunity afforded by s 596A, then it must bear the consequences. Mawhinney submitted that her Honour had failed to give sufficient weight to this factor. In essence, he contended Matthews AsJ had failed to properly balance the 2 important considerations referred to above. It was contended that, had her Honour conducted a more fulsome balancing exercise, she would have concluded that the examination, having being prolonged and frequently adjourned, could not continue in the absence of compelling justification.
Further, Mawhinney submitted that no such compelling justification existed because:
(1) Paragraphs 22 to 24 of the Current MacKinnon Affidavit illustrated that the Liquidators intended to use the 8th day to ask about the purchase of the Paymate Shares and the holding of 244,325 shares in Liven Pty Ltd (“the Liven Shares”). He contended both of these matters had been extensively addressed in previous hearings.[20] It was submitted that the fact that counsel for the Liquidators moved to other topics demonstrated that the Liquidators had asked all they wished to know and were not deprived of any opportunity to examine on these matters.
[20]The details were set out in an affidavit, which provided the relevant transcript extracts.
(2) Her Honour had erred by concluding that the Liquidators “had fully utilised all of the time previously allocated and not covered all the matters which they wished to raise”, and that a further day of examination was therefore justified.[21] Rather, the Liquidators had passed up 2 opportunities to continue examining Mawhinney on 20 August 2020 (including some days offered by the court in the following week of August 2020) and 29 April 2021, clearly showing that they had not used all of the time previously allocated to them.
(3) Her Honour had also erred by finding that Mawhinney had caused delay which had prevented the Liquidators from asking all of the questions in relation to the topics now sought to be examined upon. It was submitted Mawhinney’s conduct during the previous examinations was “held to justify resumption of the examination”.
[21]Primary Judgment, [145].
Mawhinney contended that the evidence established the Liquidators had already examined extensively on the topics which they now wished to further examine, that they had been given every opportunity to ask (and apparently did ask) all the questions they wished to on the topics in question (such that they were able to serve letters of demand with respect to the Liven Shares), and that the Liquidators had failed to identify what had developed since 29 April 2021 to justify the need for further examination. He submitted that this foundation was inadequate to provide a proper basis for Matthews AsJ’s decision.
Furthermore, Mawhinney submitted that the evidence available to him indicated the Liquidators wanted to examine him about the Paymate Shares. In that regard, he contended that the Liquidators already knew his position based on correspondence provided by his solicitors.
Moreover, Mawhinney contended that her Honour had made an error of law by finding the relevant question was whether the court could conclude the previous examinations had covered all matters that the Liquidators wished to examine Mawhinney about. In contrast, the correct question was said to be whether further examination was justified in light of the fact that the Liquidators had already had the opportunity to examine Mawhinney.
C.2.2 The Liquidators
The Liquidators referred to various principles relating to the purpose of compulsory examinations, as set out in Re New Tel Ltd (in liq); Evans v Wainter Pty Ltd.[22] They also submitted that the Primary Judgment needed to be read in light of the entire factual context, namely:
[22](2005) 145 FCR 176 (Ryan, Lander and Crennan JJ).
(1) The financial, security and legal arrangements of IPO Wealth Group remained obscure and complex.
(2) The books and records of IPO Wealth Group were unclear, contradictory and misleading.
(3) Mawhinney, as the director and guiding mind of IPO Wealth Group, had been less than forthcoming with information and documents, and had provided the Liquidators with numerous differing and inconsistent explanations for various transactions.
The Liquidators contended that these factors were relevant to what could properly be considered reasonable (or excessive) in terms of the duration of the examination. Their position was that, as the liquidation was complex, more time for the examination was required.
The Liquidators also submitted that Mawhinney had failed to discharge the burden of showing that another day of examination was sought for an improper purpose or to gain an impermissible forensic advantage. Rather:
(1) The Current MacKinnon Affidavit illustrated that the Liquidators had a proper purpose in seeking to resume the examination, namely to ask Mawhinney about significant transactions involving large sums of money. In the Liquidators’ submission, the transactions warranted further investigation.
(2) The size and complexity of the liquidation carried the inevitable consequence that the Liquidators’ knowledge, requirements and focuses would change over time, giving rise to new lines of inquiry. It was therefore irrelevant that the Liquidators had previously asked Mawhinney some questions about the topics and passed up 2 previous opportunities to continue asking questions.
Further, the Liquidators argued that Mawhinney’s claim that he had been subjected to an inordinately long examination ignored the fact that the delay was caused in part by his uncooperative, obstructive, misleading and agenda-driven behaviour.[23] It was contended that it was therefore disingenuous for him to complain that the examination’s length was oppressive.
[23]Numerous examples were given and the Liquidators’ characterisation of Mawhinney’s conduct was not contested.
The Liquidators submitted that her Honour had therefore reached the correct conclusion. They drew attention to the way in which she had carefully considered the parties’ submissions and comprehensively examined all relevant factors when reaching her decision. In the Liquidators’ submission, Mawhinney had plainly failed to show an error of the kind required to overturn a discretionary decision of the court.
C.2.3 Mawhinney’s submissions in reply
Regarding the allegation that he had been obstructive, Mawhinney argued that his behaviour had not prevented the Liquidators from asking all of the questions they had wished to ask. Further, he submitted the Liquidators had not provided any explanation as to why the questions now sought to be asked could not have been asked earlier.
In relation to onus, Mawhinney submitted that the Liquidators’ failure to adduce proper evidence about their purpose in examining him made it easier to discharge the onus of showing that further examination should not occur. Further, Mawhinney contended it was not necessary for him to fit the case into a “pigeon-hole” category of “improper purpose” or “oppression”. Rather, it was sufficient for him to show that further examination was not warranted.
Relevant principlesD.
Appealing a discretionary decision from an associate judgeD.1
On an appeal from an associate judge,[24] a judge has all the powers of the associate judge that heard the matter at first instance.[25] This includes the power to give any judgment and make any order which ought to have been given or made, and make any further or other order as the case may require.[26] The appeal is a rehearing, although it is not a rehearing de novo.[27]
[24]Supreme Court Act 1986 (Vic), s 17(3). See also Supreme Court (Corporations) Rules 2013 (Vic), r 16.5; Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 77.06, 77.06.1; In the matter of Cohalan & Mitchell Roofing Pty Ltd (in liquidation) [2020] VSC 222, [35]-[36] (Sifris J).
[25]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06.9(1).
[26]Ibid, r 77.06.9(2)(c) and (d).
[27]Oswal v Carson [2013] VSC 355, [11] (Ferguson J), citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-204 [14] (Gleeson CJ, Gaudron and Hayne JJ).
However, before a discretionary decision of a court may be overturned, the appellant must show an error of the kind identified in House v The King.[28] In that case, it was stated:[29]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if [she or] he allows extraneous or irrelevant matters to guide or affect [her or] him, if [she or] he mistakes the facts, if [she or] he does not take into account some material consideration, then [her or] his determination should be reviewed and the appellate court may exercise its own discretion in substitution for [her or] his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in [her or] his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[28](1936) 55 CLR 499 (Starke, Dixon, Evatt and McTiernan JJ).
[29]Ibid, 504.9-505.4 (Dixon, Evatt and McTiernan JJ).
In some instances, it may not be possible to identify with sufficient certainty the exact class of error made by the trial judge. Nevertheless, where the decision is so unreasonable or plainly unjust, the appellate court may infer that an error of the kind described in House v The King has occurred and that the decision should be overturned.[30]
[30]Ibid, 505.5 (Dixon, Evatt and McTiernan JJ). See also Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627.6 (Kitto J).
However, there is a strong presumption in favour of the correctness of a discretionary decision and the authorities make clear that the judgment the subject of rehearing should be overturned only if it is “clearly” or “plainly” wrong.[31] In other words, an appellate court must be persuaded that the order stands outside the limits of “sound discretionary judgment” before it intervenes.[32]
[31]Gronow v Gronow (1979) 144 CLR 513, 519.7-520.1 (Stephen J), 537.7 (Aickin J); Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627.4-628.2.
[32]Norbis v Norbis (1986) 161 CLR 513, 520.6 (Mason and Deane JJ).
Indeed, insofar as the 4 classes of error identified in House v The King are concerned:
(1) Acting upon a wrong principle will only invalidate a decision where the principle is a “binding rule rather than a guideline”.[33] A failure to apply a guideline will not, of itself, amount to error. This is because there may be instances where it is inappropriate to follow a guideline or, regardless of the failure to apply it, the overall decision is still the product of a sound discretionary judgment.[34]
[33]Ibid, 520.5.
[34]Ibid, 520.6.
(2) A mistake of fact must be “clearly wrong”.[35]
(3) Considering an irrelevant factor or failing to consider a relevant factor will only warrant setting aside a discretionary decision if it “really amounts to a failure to exercise the discretion actually entrusted to the court”.[36]
[35]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 241-242 [119] (Callinan J), citing Turnbull v NSW Medical Board [1976] 2 NSWLR 281, 297E (Glass JA).
[36]Lovell v Lovell (1950) 81 CLR 513, 519.5 (Latham CJ), applied in Mallet v Mallet (1984) 156 CLR 605, 614.6 (Gibbs CJ). See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42.3 (Mason J).
Further, the court will be slow to overturn a discretionary decision on the grounds that the primary judge failed to give appropriate weight to various factors. The “constant emphasis” of the authorities is that an appellate court should not overturn a decision merely because it would have accorded the factors different weight. This is especially so where the assessment of weight is likely to have been affected by seeing and hearing the parties at first instance, which only the primary judge has had the opportunity to witness.[37] Although there has been no trial in this proceeding, this principle remains relevant to the extent that her Honour observed and then took into account Mawhinney’s conduct during the previous examination hearings in arriving at the conclusions that she did on this particular issue.
[37]Gronow v Gronow (1979) 144 CLR 513, 519.7-520.1 (Stephen J).
In short, the onus borne by an appellant seeking to disturb a discretionary decision is heavy.[38]
Access to confidential affidavits in the context of liquidators’ examinationsD.2
[38]See, for example, Concrete Constructions Group Pty Ltd v McNamara (1990) 70 LGRA 241, 251.3 (Gallop J); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1980) 44 FLR 88, 111.5 (Fisher J, dissenting but upheld in the High Court: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 179.9 (Gibbs CJ, Aickin, Wilson and Brennan JJ)); Lovell v Lovell (1950) 81 CLR 513, 532.9-533.3 (Kitto J).
As a general rule, a confidential affidavit filed by a liquidator in support of an application for an examination summons will not generally be made available to the prospective examinee.[39] This aims to ensure the examinee comes before the court without forewarning of the subjects upon which they will be examined.[40] Were an examinee to be freely granted access to the liquidator’s affidavit, it could frustrate the examination process.[41]
[39]Re Excel Finance Corporation Ltd (rec and mgr appointed); Worthley v Australian Securities Commission (1993) 41 FCR 346, 355.5-356.2 (O’Loughlin J).
[40]Ibid.
[41]Re Excel Finance Corporation Ltd (rec and mgr appointed), Worthley v England (1994) 52 FCR 69, 93G-94C (Gummow, Hill and Cooper JJ).
Instead, access should only be granted where the justice of the case so requires.[42] As to the approach generally adopted, the Full Federal Court has stated:[43]
There must be material before the Court from which it appears that the applicant has an arguable case, to which the material is relevant, before the discretion should be exercised in favour of that applicant. But once that appears the discretion will normally be exercised in favour of the application.
[42]Ibid, 93G.
[43]Ibid, 94C.
However, focusing predominantly on whether there is an arguable case risks elevating the observations of the Full Federal Court beyond their terms.[44] In reality, the correct approach is more nuanced,[45] and is aptly described as follows:[46]
[44]Re Moage Ltd (in liq); Sheahan v Pitterino (1997) 77 FCR 81, 95A (Mansfield J), applied in Re Bell Group NV (in liq) (2016) 116 ACSR 294, 316 [137] (Yates J).
[45]Re Bell Group NV (in liq) (2016) 116 ACSR 294, 316 [137].
[46]Re Moage Ltd (in liq); Sheahan v Pitterino (1997) 77 FCR 81, 95B, 97C, applied in Re Bell Group NV (in liq) (2016) 116 ACSR 294, 317 [140] and Ariff v Fong (2007) 63 ACSR 384, 401 [90] (Beazley, Giles and Santow JJA).
The fundamental judgment is based upon what the justice of the case in the particular circumstances demands. In making that determination, regard will need to be had to the content of the affidavit, so that where appropriate the purpose of the examination is not frustrated or confidential information or potentially significant information which might if released impinge upon an effective examination is not inappropriately released. If there are no particular considerations arising from the affidavit or its terms, or from the material referred to, then provided that the applicant for the release of the affidavit presents “an arguable case” or some sensible grounds for maintaining the application, to which the affidavit is relevant, then generally the discretion will be exercised in favour of that applicant.
...
It is apparent that, once that ground of challenge is identified as an arguable one, the affidavit is relevant to it. It is also necessary to have regard to other considerations relevant to the exercise of the discretion.
(Emphasis added.)
Resumption of an examinationD.3
The principles applicable to the Examination Application were not in controversy between the parties. They are contained in Re New Tel Ltd (in liq); Evans v Wainter Pty Ltd[47] and were outlined by her Honour in the Primary Judgment.[48]
[47](2005) 145 FCR 176, 216-217 [252] (Lander J).
[48]Primary Judgment, [62]. For convenience, the principles are repeated below:
1. The power given to the Court to summon a person for examination is a coercive power.
2. The purpose of the power is to be gleaned from the legislation.
3. The following legitimate purposes emerge:
3.1 First, an examination is designed to serve the purpose of enabling an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation.
3.2 Secondly, it assists the corporation’s administrators to identify the corporation’s assets, both tangible and intangible. It also allows the corporation’s liabilities to be identified.
3.3 Thirdly, the purpose is to protect the interests of the corporation’s creditors.
3.4 Fourthly, it serves the purpose of enabling evidence and information to be obtained to support the bringing of proceedings against examinable officers and other persons in connection with the examinable affairs of the corporation.
3.5 Fifthly, it assists in the regulation of corporations by providing a public forum for the examination of examinable officers of corporations.
4. If an eligible applicant applies for an order for the examination of a person for a purpose unconnected with the purposes authorised by the legislation that will be an abuse of process and the order, if obtained, will be set aside.
5. The procedure may not be used to allow a party to obtain a forensic advantage and, if it is, any order obtained will be set aside.
6. The procedure may not be used as a dress rehearsal for the cross-examination of a person in a pending or subsequent action. However, it is not improper to seek an order of the Court to summon a person for examination whilst litigation is pending against that person or entities connected with that person.
7. The question whether in any particular case the applicant has used the procedure abusively will depend upon the applicant’s purpose in seeking the order and all of the surrounding circumstances. It will not be an abuse unless an offensive purpose is at least the predominant purpose.
8. It will be an offensive purpose if the application cannot be characterised as being for the benefit of the corporation, its contributories or creditors.
9. A creditor may, if first authorised by ASIC, apply to the Court for an order to summon for examination a person for the purpose of obtaining information in relation to a debt owed to the creditor if such an examination would be in the interests of the corporation or its creditors as a whole.
10. A creditor may not use the procedure for the purpose of obtaining a forensic advantage which would not have been available to the creditor if the corporation had not gone into administration.
Nor was it controversial (either at first instance or on appeal) that the power to compulsorily examine an individual under s 596A of the Corporations Act is “extraordinary” and should be exercised with care so as to avoid oppressing the examinee. In determining whether an examination should resume, the court is required to balance 2 considerations: enabling the liquidator to collect all necessary information to discharge their duty to the company and the creditors; and ensuring justice and fairness to the examinee.[49]
Determination of the appealE.
[49]Australian Securities and Investments Commission v Karl Suleman Enterprises Pty Ltd (in liq); Application of Stoliar (2003) 44 ACSR 694, 699 [23] (Austin J), applying Re Equiticorp Finance Ltd; Ex parte Brock (1992) 6 ACSR 725, 728.3 (Young J). See also Re Spedley Securities Ltd; Ex parte Potts & Gardiner (1990) 2 ASCR 152, 154.6 (Young J); Hamilton v Oades (1989) 166 CLR 486, 496.8-497.8 (Mason CJ).
In respect of both the Access Application and the Examination Application, Mawhinney has failed to discharge the onus of showing that Matthews AsJ made an error of the kind referred to in House v The King.
Access ApplicationE.1
At the outset, if I have correctly understood the Liquidators to contend that her Honour positively found Mawhinney did not have an arguable case, then that must be rejected. Any such contention contradicted the reasons for decision concerning the Access Application in the Primary Judgment (which preceded her Honour’s consideration of the Examination Application). Her Honour unambiguously stated that she “did not need to form a view as to whether or not the Examinee had an arguable case in respect of the Application”.[50]
[50]Primary Judgment, [39].
However, contrary to Mawhinney’s submission, her Honour’s decision to refrain from reaching a conclusion on this point was not in error. The power to grant access to confidential affidavits is discretionary. The court is empowered to take into account whatever the justice of the case requires. That may involve considering whether the applicant has an arguable case, but it need not always. The fact that on the authorities a court may decide there is an arguable case and still refuse access necessarily means a court may be satisfied in the particular circumstances that access should not be granted regardless of whether there is an arguable case. On her Honour’s approach, she plainly proceeded on the assumption that it was possible an arguable case existed but this possibility still did not warrant inspection being ordered. Thus, her Honour did not need to form a view as to whether Mawhinney had an arguable case for the purposes of the Access Application. Based on the other relevant factors, she concluded access should be refused, which was a conclusion within the realm of her discretion.
Even if Mawhinney’s contention were to be accepted that it is conventional practice to consider whether the applicant has an arguable case, her Honour’s failure to follow such a convention would still not constitute an error of the kind considered in House v The King. It cannot be said that Matthews AsJ acted upon a “wrong principle”, as conventions are not binding rules or principles, but are better construed as being akin to guidelines. As stated in Norbis v Norbis,[51] there may be instances where it is inappropriate to follow a guideline or, regardless of the failure to apply it, the overall decision is still the product of a sound discretionary judgment.[52]
[51](1986) 161 CLR 513 (Mason, Wilson, Brennan, Deane and Dawson JJ).
[52]Ibid, 520.6 (Mason and Deane JJ).
Further, any choice to refrain from following the conventional course cannot be characterised as a failure to consider a relevant factor. According to the authorities cited above, Mawhinney must show that her Honour’s failure to consider and decide whether he had an arguable case amounted to a failure to exercise the discretion entrusted to her Honour. He has not advanced such an argument, but has instead contended the discretion was incorrectly exercised.
Having reviewed the Primary Judgment and the affidavits in question, I do not consider her Honour failed to exercise the discretion given to her, nor do I see any basis to conclude that her exercise of the discretion was unsound. As was rightly noted, the First Confidential Affidavit was, at the time of her decision, 16 months old. Further, it related to the Summons, not the Resumption Order. In this context, it is hard to see how the First Confidential Affidavit could be considered necessary to properly and fairly determine Mawhinney’s challenge to the resumption of the examination.
Likewise, there was no error in her Honour’s approach to the Second Confidential Affidavit. Matthews AsJ carefully considered its contents and compared it to the unrestricted Current MacKinnon Affidavit. Having had the benefit of seeing both documents, her Honour was perfectly entitled to conclude that the Second Confidential Affidavit did not contain additional material needed to determine the question of disclosure.
In summary, Mawhinney has failed to discharge the onus which he bore.
Examination ApplicationE.2
It is uncontroversial that the examination power is extraordinary and should be carefully exercised. This was accepted by Matthews AsJ at first instance,[53] and emphasised by Mawhinney on appeal.
[53]Primary Judgment, [137].
As already noted above,[54] essentially Mawhinney advanced 5 arguments in support of his submission that her Honour had erred. For the reasons that follow, each of those 5 arguments must fail.
[54]See pars 41-45 above.
First, there was no real basis for Mawhinney’s contention that her Honour failed to give sufficient weight to fact that the examination had lasted 7 days which had been spread over an extended period of more than a year. Rather, her Honour dedicated an entire section of the Primary Judgment to considering the length of Mawhinney’s examination.[55] Matthews AsJ correctly noted that the appropriate length of an examination will vary from case to case, and then proceeded to examine the present proceeding in detail, including Mawhinney’s obstructive behaviour, the complexity of the proceeding and the evolving nature of the Liquidators’ enquiries. In this context, it cannot be said that her Honour failed to take into account a relevant consideration or that she gave this factor insufficient weight such that an error occurred.
[55]Primary Judgment, [139]-[147].
Secondly, Mawhinney’s argument that her Honour gave inadequate attention to the fact that the Liquidators had already extensively examined him on the outstanding matters was contrary to the reasons in the Primary Judgment. Her Honour analysed the previous examinations in detail, noting that while the Liquidators had asked a number of questions about the outstanding topics,[56] in the circumstances it did not seem unreasonable for the Liquidators to have formed the view that more information was needed. Further, the fact that Mawhinney has stated his position in relation to the Paymate Shares in correspondence is of little moment. Naturally, the Liquidators are entitled to explore the veracity of the position stated, together with related issues.
[56]Ibid, [153].
Thirdly, with respect to the use of all available time on 20 August 2020 and 29 April 2021, her Honour expressly referred to the duration of the examination hearings, including the shorter duration of the hearing on 29 April 2021 and the fact that the other hearings “generally” lasted the full day.[57] Matthews AsJ also noted that the liquidation remains an evolving one, in part because of the incomplete and shambolic nature of IPO Wealth Group’s books and records.[58] In light of this, her Honour concluded it was not particularly surprising that the Liquidators had identified matters upon which they needed to conduct further examination.[59] There was no error in reaching this conclusion. The mere fact that the Liquidators did not use all available time on particular days of the examination does not inexorably lead to a finding that the Liquidators had asked all relevant questions on all topics relevant to their legitimate purposes. Further, the Liquidators do not need to explain the precise nature of these subsequent matters, lest they forewarn Mawhinney of their enquiries.[60] Plainly, there was evidence upon which her Honour could reasonably conclude as she did.
[57]Ibid, [19].
[58]Ibid, [146].
[59]Ibid.
[60]Re Excel Finance Corporation Ltd (rec and mgr appointed); Worthley v Australian Securities Commission (1993) 41 FCR 346, 355.5-356.2 (O’Loughlin J).
Fourthly, Mawhinney contended her Honour had erred by concluding his conduct had caused delay which in turn prevented the Liquidators from examining him in relation to the topics now sought to be examined upon. This contention mischaracterised the findings of the Primary Judgment. Her Honour did not conclude the delay directly affected the topics now sought to be examined upon. Further, her Honour observed that any delay caused by Mawhinney was “not the primary consideration” and ordered the examination resume on other grounds.[61] Regardless, having personally observed Mawhinney’s conduct and its effects upon examinations to date, Matthews AsJ was entitled to give this factor the limited weight that she did.
[61]Primary Judgment, [144].
Fifthly, Mawhinney submitted that Matthews AsJ acted upon a wrong legal principle by considering whether the previous examinations had covered all matters the Liquidators wished to examine Mawhinney about. Instead, Mawhinney contended the correct question was whether further examination was justified in light of the fact that the Liquidators had already had the opportunity to examine him. Again, to show a legal error within the confines of House v The King, Mawhinney must establish the principle he contends for is a “binding rule”. He has not cited any authority to support such a conclusion. In any event, on the evidence before the court, there is little doubt that further examination was justified on the limited topics identified for the relatively short period of time required.
Accordingly, Mawhinney has failed to show her Honour erred in the exercise of her discretion with respect to the Examination Application.
ConclusionF.
The appeal will be dismissed with costs.
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