Sutherland v Pascoe - [2012] FCA 453

FEDERAL COURT OF AUSTRALIA
Sutherland v Pascoe; in the matter of Matrix Group Limited as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 [2012] FCA 453

Citation: Sutherland v Pascoe; in the matter of Matrix Group Limited as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 [2012] FCA 453

Parties: IN THE MATTER OF MATRIX GROUP LIMITED AS TRUSTEE FOR THE MATRIX GROUP UNIT TRUST (IN LIQ) ACN 061 549 371; ANDREW PAUL TENNENT SUTHERLAND, GARRICK MICHAEL HAWKINS, EVELYN HAWKINS, GILLIAN TYNE and ALEXANDRA HAWKINS v SCOTT DARREN PASCOE IN HIS CAPACITY AS LIQUIDATOR OF MATRIX GROUP LIMITED AS TRUSTEE FOR THE MATRIX GROUP UNIT TRUST (IN LIQ) ACN 061 549 371

File number: NSD 299 of 2012

Judge: JACOBSON J

Date of judgment: 18 April 2012

Legislation: Conveyancing Act 1919 (NSW), s 37A
Corporations Act 2001 (Cth), ss 181, 182, 596B, 596C, 1324

Cases cited: Ariff v Fong (2007) 63 ACSI 384
Oates v Hawkins (2010) NSWSC 491
Pascoe; in the matter of Matrix Group Limited (in liquidation) [2011] FCA 1117
Wily re LED (South Coast) Pty Limited (2009) 76 NSWLR 428

Date of hearing: 17 April 2012

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 32

Counsel for the Applicant: M Aldridge SC appears with J Hogan-Doran and S Cirillo

Solicitor for the Applicant: Eakin McCaffery Cox

Counsel for the Plaintiff/Respondent: RJ Lockhart SC with C Botsmann

Solicitor for the Plaintiff/Respondent: Ashurst

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 299 of 2012

IN THE MATTER OF THE MATRIX GROUP LIMITED AS TRUSTEE FOR THE MATRIX GROUP UNIT TRUST (IN LIQ) ACN 061 549 371

BETWEEN:
SCOTT DARREN PASCOE IN HIS CAPACITY AS LIQUIDATOR OF MATRIX GROUP LIMITED AS TRUSTEE FOR THE MATRIX GROUP UNIT TRUST (IN LIQ) ACN 061 549 371
Plaintiff/Respondent

AND:
ANDREW PAUL TENNENT SUTHERLAND
First Applicant

GARRICK MICHAEL HAWKINS
Second Applicant

EVELYN HAWKINS
Third Applicant

GILLIAN TYNE
Fourth Applicant

ALEXANDRA HAWKINS
Fifth Applicant

JUDGE:

JACOBSON J

DATE OF ORDER:

18 APRIL 2012

WHERE MADE:

SYDNEY

THE COURT NOTES an undertaking by counsel for the Applicants and Mark Doble of Eakin McCaffrey Cox not to disclose the Confidential Material (defined below) to the Applicants to the Interlocutory Processes of 23 March 2012 and 28 March 2012 (Applicants), including, Mr Andrew Sutherland, or any third party, until further order or with the written consent of the Respondent, and DIRECTS THAT:
1.A copy of the exhibit and the affidavits the subject of orders 1 and 2 of the interlocutory application filed on 13 April 2012 (the Confidential Material) be delivered, by the respondent to the application, to Mr Doble by 5.00 p.m. on 19 April 2012.
2.Until further order, save with the written consent of the Respondent, access to the Confidential Material be restricted to counsel for the Applicants and Mr Mark Doble, solicitor at Eakin McCaffrey Cox.
3.The parties confer as to a timetable for the…

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 Sutherland v Pascoe

Details

AGLC: Sutherland v Pascoe [2012] FCA 453
Case: [2012] FCA 453
Decision Date: 18 April 2012

CaseChat Overview and Summary

In the case of Sutherland v Pascoe, the applicants sought access to an affidavit filed in support of examination orders issued under the Corporations Act 2001. The applicants aimed to challenge the examination orders on the grounds of abuse of process. They argued that the examination orders were issued in furtherance of an abuse of process or for an improper purpose, arising from the consent dismissal of proceedings in the Supreme Court of New South Wales. The applicants claimed that the consent orders gave rise to a res judicata, issue estoppel or "Anshun" estoppel, prohibiting Matrix from issuing proceedings against certain individuals in respect of matters that were the subject of the Supreme Court proceedings.

The court had to decide whether the applicants had established an arguable case that the examination summonses and associated orders were issued in circumstances amounting to abuse of process, and if access to the affidavit would assist the applicants in establishing res judicata or the related grounds of abuse.

The court found that the applicants had established an arguable case for abuse of process. The background to the settlement of the Supreme Court proceedings and the consent orders in that case suggested a sufficient possibility of abuse of process within the principles established in previous cases. The court also found that access to the affidavit would assist the applicants in determining the correctness of their challenge to the examination orders.

Therefore, the court made orders giving the applicants access to the liquidator's affidavit. The orders also restricted access to the affidavit to certain parties and set a timetable for further progress of the matter. The court further directed the parties to confer on a return date for any notice to produce, subpoena, or summons for production in these proceedings not yet issued or served on the applicants.

Orders