Shepherds Producers Co-operative Ltd - [2006] NSWSC 43

Reported Decision:
56 ACSR 579
65 NSWLR 381
(2006) 24 ACLC 336

New South Wales

Supreme Court

CITATION: Shepherds Producers Co-operative Ltd [2006] NSWSC 43

HEARING DATE(S): 06/02/06

JUDGMENT DATE :
10 February 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Direction that examination summonses be issued. Order for filing and service of affidavits of assets and liabilities.

CATCHWORDS: ASSOCIATIONS AND CLUBS - co-operative societies - application of Corporations Act provisions - CORPORATIONS - winding up - examination of officers - examination summonses previously issued but no longer extant - whether liquidator entitled to obtain issue of further examination summonses directed to same persons - whether also entitled to order that some of such persons file affidavit of assets and liabilities - concept of "examinable affairs" - whether persons concerned should have opportunity to be heard

LEGISLATION CITED: Co-operatives Act 1992, ss.29, 229, 332
Corporations Act 2001 (Cth), ss.596A, 597A
Corporations (Ancillary Provisions) Act 2001, s.10, Part 3
Supreme Court (Corporations) Rules 1999, rules 11.3(2), 11(5)

CASES CITED: Re New Tel Ltd (in liq); Evans v Wainter Pty Ltd (2005) 54 ACSR 284
Re Quick Plumbing Australia Pty Ltd [2005] FCA 1850
Re Stoliar; Australian Securities and Investments Commission v Karl Suleman Enterprises Pty Ltd (in liq) (2003) 44 ACSR 694
Re The Duke Group Ltd; Gerah Imports Pty Ltd v The Duke Group Ltd (1994) 68 ALJR 196
Singleton re Original Displays (Australia) Pty Ltd [2003] NSWSC 459

PARTIES: Shepherds Producers Co-operative Limited (Receivers and Managers Appointed) (in liquidation) - First Plaintiff
Peter William Marsden and David John Kerr - Second Plaintiffs

FILE NUMBER(S): SC 2524/04

COUNSEL: Mr J.R.J. Lockhart - Plaintiffs

SOLICITORS: Piper Alderman - Plaintiffs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 10 FEBRUARY 2006

2524/04 SHEPHERDS PRODUCERS CO-OPERATIVE LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

JUDGMENT

1 Shepherds Producers Co-operative Limited (which I shall call “SPC”) is, by virtue of s.29 of the Co-operatives Act 1992, a body corporate with perpetual succession, a common seal and other incidents of incorporation. Mr Kerr and Mr Marsden became administrators of SPC pursuant to the provisions of Part 5.3A of the Corporations Act 2001 (Cth) as made applicable to co-operatives by s.332 of the Co-operatives Act. That happened on 14 May 2003. SPC subsequently became subject to the form of creditors voluntary winding up that follows on from such administration. Again, this occurred under the statutory regime by which provisions of Commonwealth law governing corporations are made applicable by State law to co-operatives.

2 The present application by Mr Kerr and Mr Marsden was referred by a registrar to a judge because, although on its face within the province of a registrar, it raises a particular issue of principle. It concerns the conduct of examinations under s.596A of the Corporations Act.

3 The Parliament of New South Wales has caused the provisions in Divisions 1 and 2 of Part 5.9 of the Corporations Act (which include s.596A) to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shepherds Producers Co-operative Ltd

Details

AGLC: Shepherds Producers Co-operative Ltd [2006] NSWSC 43
Case: [2006] NSWSC 43
Decision Date: 10 February 2006

CaseChat Overview and Summary

Shepherds Producers Co-operative Limited was the subject of a winding up petition and a liquidator had been appointed. The liquidator sought to issue further examination summonses to certain individuals, who had already been served with examination summonses in the past but those summonses had expired. The individuals resisted the liquidator's application, arguing that the liquidator was not entitled to issue further summonses to them and that the liquidator could not require them to file an affidavit of their assets and liabilities. The court was required to determine whether the liquidator could issue further examination summonses to the same individuals and whether the liquidator could order that some of these individuals file an affidavit of their assets and liabilities. The court considered the relevant provisions of the Corporations Act and the concept of "examinable affairs". It also considered whether the individuals concerned should be given an opportunity to be heard. The court found that the liquidator was entitled to issue further examination summonses to the same individuals. The court also found that the liquidator could order that some of these individuals file an affidavit of their assets and liabilities. The court considered that the individuals concerned should be given an opportunity to be heard before such an order was made. The court made orders for the liquidator to issue further examination summonses to the individuals and for some of them to file an affidavit of their assets and liabilities, subject to them being given an opportunity to be heard.

Orders