Re: Octaviar Administration Pty Ltd

In the case of Octaviar Administration Pty Ltd, the applicants, who were summonsed to attend an examination about the affairs of Octaviar Administration Pty Ltd, sought to have the summonses discharged. The applicants argued that the summonses were not issued in relation to the examinable affairs of Octaviar Administration and therefore were issued for a collateral purpose predominantly and a purpose which is not a purpose for which such summonses may lawfully be issued under the legislation. The applicants further submitted that the matters to be the subject of cross-examination had already been the subject of cross-examination in other proceedings and that it was not functionally helpful for further cross-examination to be carried out and was oppressive to the applicants. They also argued that the examination was to be conducted in Brisbane and they would be required to travel to Brisbane from Sydney, which was oppressive.

The primary legal issue the court had to decide was whether the summonses should be discharged or if the examination should proceed as planned. The court considered the arguments made by the applicants and concluded that the summonses should not be discharged. The court found that the summonses related to the examinable affairs of Octaviar Administration and that the respondents intended to use the occasion of the examination to deal with matters within the definition of the examinable affairs of the company. The court also found that the issuing of similar summonses to the same people in relation to the affairs of Octavia Limited did not constitute any form of admission by conduct and did not indicate any defect in the summonses before the court.

The court further held that the fact that two of the applicants had been cross-examined previously was not a ground for inferring oppression or for inferring the existence of an improper purpose. The court found that there was no evidence to conclude that the proceedings were oppressive and that it was appropriate to allow the examinations to proceed. The Magistrate conducting the examinations would be able to deal with any questions of irrelevancy or questioning beyond the scope of the hearing on their merits. The court also found that the applicants had not established that the summonses should be set aside and, in its judgment, it followed that they should not have access to the affidavits.

The final orders made by the court were that the summonses issued to the three human applicants be discharged, that the respondents other than Fortress Credit Corporation Australia II Pty Ltd be relieved of the obligation to comply with paragraph B of the summonses issued to them respectively on 24 November 2010, and that Fortress Credit Corporation Australia II Pty Ltd be relieved of the obligation to comply with paragraph 4 of the order of Registrar Samios made herein on 24 November 2010. The court also ordered that the respondents pay half of the applicants' costs of the application to be assessed.