Saint v Macks No. Scgrg-95-1021 Judgment No. S264

In the matter of Emanuel Investments Pty Ltd (in liquidation), Saint & Anor v Macks, the applicants, Anthony John Saint and Anthony Francis Johnson, sought to set aside orders for examination and production of documents issued by the court. The liquidator of Emanuel Investments had sought the orders to obtain details of any professional indemnity insurance held by the firms of which each of the examinees were partners. The applicants argued that the orders should be set aside due to a material non-disclosure by the liquidator in relation to a funding arrangement for the litigation, and that the application for the orders constituted an abuse of process. The court found that while there was a duty of full disclosure on the liquidator, the applicants could not rely on the alleged non-disclosure as the proper time to raise the issue was before the funding arrangement was approved. The court also found that the application for the examination orders did not serve a legitimate purpose under the law as the liquidator was already funded for the litigation and the examination would not benefit the creditors. The confidential nature of the professional indemnity insurance information further weighed against permitting the examination to proceed. The court therefore set aside the examination orders.

The applicants also argued that the orders should be stayed until the applicants could obtain an injunction preventing one of the insurers involved in the funding arrangement from participating. However, the court found that it was not necessary to determine this issue as it had already decided to set aside the examination orders.