Re: Southern Cross Petroleum Sales P/L (in Liq) No. Scgrg-97-1183 Judgment No. S6617

[1998] SASC 6617

SOUTHERN CROSS PETROLEUM SALES (SA) PTY LTD (IN LIQUIDATION) V HIRSCH & SILVER

Civil

LANDER J

Southern Cross Petroleum Sales Pty Ltd (In Liquidation) “The Company” was placed under administration pursuant to s436A of the Corporations Law on 28 October 1996. By resolution of the creditors of the Company the administrator of the Company, John Maxwell Morgan, was appointed as liquidator on 22 January 1997 pursuant to s439C of the Corporations Law.

On 6 August 1997 the liquidator sought orders for the examination of Richard John Pearce, a director of the company.  He also sought an order for the examination of Mrs Pearce. 

On 3 September 1997 orders were made for the examination of Mr and Mrs Pearce.

Mr Pearce was examined on 13 October 1997 and the examination continued on 13 November. 

On that same day application was made to the Court for the examination of Avi Silver and Eddie Hirsch.  The application was supported by an affidavit of 11 November 1997 sworn by the liquidator.  On 13 November 1997 orders were made for their examination by Judge Bowen Pain, a Master of this Court.  The orders also required Messrs Silver and Hirsch to produce a number of documents.

On 1 December 1997 Messrs Silver and Hirsch made application for the setting aside of the order for examination and the order requiring production of the documents identified in the order of the Master.  They also sought access to the affidavit of John Maxwell Morgan relied upon for the purpose of the initial application and access to the transcript of the public examination proceedings.

The application came on for hearing before the Master on 4 December 1997.  The Master allowed Messrs Hirsch and Silver access to the affidavit of the liquidator sworn on 11 November 1997.  He allowed the liquidator to file a further affidavit which had been sworn on the day of the hearing, 4 December 1997.  He refused the appellants’ application for an adjournment to answer that affidavit.  He also refused an application by the appellants to cross examine the liquidator on those two affidavits.  He rejected the appellants’ application for access to the evidence of the public examination.  He dismissed the application to set aside the orders of 13 November 1997.

It is from those orders that the appellants appeal.

The grounds of appeal are:

“1.The learned Judge erred in failing to give any or any adequate reasons for rejecting the submission of the appellants as to the terms of the orders made on 13 November 1997.

2.The learned Judge erred in failing to consider or to properly consider or to address or properly address the submissions of the appellants as to the terms of the orders made on 13 November 1997.

3.The learned Judge erred in:

3.1allowing the applicants’ counsel and instructors only to look at:

3.1.1parts of the transcript of the examination of Mr Pearce; and

3.1.2the affidavit of John Maxwell Morgan sworn 11 November 1997;

3.2refusing to release the said transcript and affidavit…