Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company

[1993] FCA 557

IN THE FEDERAL COURT OF AUSTRALIA	) 1
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 3123 of 1993
)
GENERAL DIVISION	)

BETWEEN: MICHAEL JOHN MORRIS SMITH

Applicant

AND CITY SHOE PTY LTD & ORS

Respondent

Coram:	Whitlam J.
Date:	16 August 1993
Place :	Sydney

17 AtlEi l993

FEDERAL COURT OF
AUSTRALIA

REASONS FOR JUDGMENT PRINCIPAL

(EX TEMPOREL

This matter was placed in the

Friday at the request of the applicant, who is the liquidator of Orchardleigh Enterprises Pty Ltd ("the company"). The applicant seeks an order for the examination of Mr John Kepreotes, who was the company's accountant. The matter was referred to me by the Registrar.

respondent, was represented at the hearing before Davies J. Their examinations are fixed for today, tomorrow and the next

By notice of motion filed in Court on 10 May 1993 the applicant had sought orders for the examination of the fourth and fifth respondents and Mr Xepreotes. On 26 May 1993 Davies

J. made orders that the fourth, fifth, sixth, seventh and

eighth respondents be examined under the old s 597 of the Corporations Law. Each of those parties, save the eighth

day. The applicant wishes to have Mr Kepreotes examined at
the same time.

It does not seem that at the hearing on 26 May 1993 Davies J. dealt with the merits of the application for Mr Kepreotes to be examined. Accordingly, the application may not have been determined or disposed of within the meaning of s 1386(2) of the Corporations Law.

The applicant's solic~tors wrote to Mr Kepreotes by facsimile on 2 August 1993 to inform him of their intention to approach the Court for an order that he also be examined on the days set aside this week. On 11 August 1993 the applicant's solicitors wrote to the solicitors for the fourth and fifth respondents notifying them that the matter would be re-listed last Friday for the purpose of obtaining orders to have Mr Kepreotes "examined pursuant to the provisions of s

592 (sic) of the Corporations Law." The solicitors do not

appear to have written to Mr Kepreotes informing him of the

date for re-listing.

In any event, the application in respect of Mr Kepreotes was not made in accordance with Rule 81(1) of the Corporation Rules as in force at 10 May 1993. Importantly too, he is entitled to proper notice to attend and an opportunity to consider whether to apply for a discharge of any order for his examination. I should not be prepared drastically to abridge the times prescribed in relation to these matters. Accordingly, I dismiss that part of paragraph 6 of the notice

of motion filed 10 May 1993 which seeks an order for the
examination of Mr Kepreotes.

The applicant may, if he wishes, make a fresh application for the issue of a summons for examination of Mr Kepreotes under s 569B of the Corporations Law.

I certify that this and the preceding two pages are a true copy of the ex tempore reasons for judgement herem of the Honourable Mr Justice A.P. Whltlam.

Associate:

Date: 

Counsel for the applicant:  R.K. Eassle

instructed by Frank & Woods

Date of hearing:	13 & 16 August 1993
Date judgment delivered:	16 August 1993