ROBERT MICHAEL KIRMAN AND ROBERT CONRY BRAUER as Joint and Several Liquidators of RENBEC PTY LTD (In liq) AND OF SEAWEST INTERNATIONAL PTY LTD (In liq)

[2019] WASC 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   ROBERT MICHAEL KIRMAN  AND ROBERT CONRY BRAUER as Joint and Several Liquidators of RENBEC PTY LTD (In liq) AND OF SEAWEST INTERNATIONAL PTY LTD (In liq) [2019] WASC 130

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   18 APRIL 2019

PUBLISHED           :   18 APRIL 2019

FILE NO/S:   COR 188 of 2018

MATTER:   RENBEC PTY LTD (In liq)

IN THE MATTER of SEAWEST INTERNATIONAL PTY LTD (In Liq) EX PARTE

BETWEEN:   ROBERT MICHAEL KIRMAN  AND ROBERT CONRY BRAUER as Joint and Several Liquidators of RENBEC PTY LTD (In liq) AND OF SEAWEST INTERNATIONAL PTY LTD (In liq)

Plaintiffs

Catchwords:

Corporation law - Application to discharge examination summons - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application to discharge examination summons dismissed

Category:    B

Representation:

Counsel:

Plaintiffs : No appearance

Solicitors:

Plaintiffs : HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

Horizontal Falls Adventure Tours Pty Ltd v Thomas [2009] FCA 639

MASTER SANDERSON:

1. On 28 November 2018 Judith Gayle Hawes (Mrs Hawes) was summoned to attend before the court to be examined about the examinable affairs of Renbec Pty Ltd (In liq) and Seawest International Pty Ltd (In liq).  She was also ordered to produce certain books and records.  By letter dated 21 March 2019 Mrs Hawes sought orders the examination summons be discharged.  An affidavit sworn by Mrs Hawes dated 30 January 2019 was filed in support of the application.  Although not strictly in compliance with the Rules of the Supreme Court 1971 (WA) (the Rules) I have treated the application as being properly commenced and have taken into account what was said by Mrs Hawes in her affidavit.

2. In written submissions the plaintiffs identified what they say are the three issues raised by the application.  First, whether Mrs Hawes' health is a reason to discharge or modify the operation of the summons.  Second, whether Mrs Hawes has knowledge of the examinable affairs of the companies which would justify her being summonsed.  Third, whether there would be any purpose in examining Mrs Hawes before the plaintiffs have examined Mr Nathan Hawke.[1] 

   [1] Plaintiffs' outline of submissions filed 2 April 2019.

3. In relation to her health, Mrs Hawes relies on a letter from her general practitioner, Dr Karina Greenwell, dated 20 December 2018.  This letter appears as part of attachment GH1 to Mrs Hawes' affidavit.  The letter is succinct and relevantly reads as follows:

   Judith has been my patient since the 11^th of April 2017.  She has had severe anxiety and depression.  She has been under enormous stress with the failure of her husband's business.  She has been seeing a psychologist and making slow progress, however continues to experience significant symptoms that impact upon her ability to function.  She has worsened since receiving her subpoena to attend court on the 29^th January, 2019.

   I feel she is currently unfit to attend court due to her illness and I am concerned she may suffer a further deterioration in her mental health if forced to do so.

4. With respect, and while paying due deference to the opinion of Mrs Hawes' general practitioner, the letter is very general in nature.  It does not really set out a diagnosis.  It can be acknowledged that being called to attend on an examination of a company's affairs is a stressful process.  That stress may be heightened by an unfamiliarity with the affairs of the company.  But nonetheless, Mrs Hawes is a person who the legislature has determined can be summonsed to be examined.  The circumstances in which a summons will be set aside on health grounds were considered by Collier J in Horizontal Falls Adventure Tours Pty Ltd v Thomas [2009] FCA 639. Without going through all of the criteria referred to by her Honour, in that case, as in this, there was no evidence the subpoena was oppressive or vexatious. Further, the witness in the Horizontal Falls case had shown an ability to come to grips with the matters at issue.  In this case, the affidavit of Mrs Hawes is cogent and lucid and does not suggest any inability to understand the matters at issue. 

5. I am not satisfied there is sufficient material in this case to justify setting aside the summons on the basis of a threat to Mrs Hawes' health.  The evidence simply does not justify such a conclusion.

6. Turning then to Mrs Hawes' knowledge of the affairs of the company.  The affidavit material filed by the plaintiff shows Mrs Hawes is a current and former director and shareholder of related entities to the companies.[2]  The affidavit demonstrates that Mrs Hawes has knowledge of the companies' examinable affairs.  Nothing in Mrs Hawes' affidavit suggests otherwise.  In particular, the companies transferred a number of vessels to Mrs Hawes apparently for no valuable consideration.  The plaintiffs wish to examine Mrs Hawes in relation to those transfers among other things.  It is by no means unreasonable for them to do so. 

   [2] Affidavit of Robert Michael Kirman filed 20 September 2018.

7. Finally, there is no basis upon which the court should dictate to the liquidators the order in which they examine witnesses.  That is a matter for them and their professional judgment.  Were it to come to pass that an examination was undertaken and had to be adjourned because examination of other witnesses was necessary before the examination of Mrs Hawes could proceed then the position may become oppressive and that may provide grounds for setting aside of the summons.  But at present there is no suggestion in any of the material that examination of any other witnesses is a necessary precursor to the examination of Mrs Hawes.  If ever it was possible to set aside a summons on that ground this is not a case where it should happen.

8. For these reasons the application to discharge the summons will be dismissed.  Mrs Hawes ought pay the liquidators' costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DG
Associate to Master Sanderson

29 APRIL 2019