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Sutherland v Pascoe (No 2)

Sutherland v Pascoe (No 2)

Case [2012] FCA 1361 28 November 2012

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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 (No 2) [2012] FCA 1361

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 (No 2) [2012] FCA 1361

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: 28 November 2012

Catchwords: CORPORATIONS – liquidator examinations – whether summonses issued in furtherance of abuse of process or for improper purpose – whether claims to be investigated are barred by res judicata or Anshun estoppel – whether there was material non-disclosure to the Registrar

Legislation: Corporate Law Economic Reform Program Act 1999 (Cth)
Corporations Act 2001 (Cth), ss 181, 182, 236, 237, 475, 596B, 588FB, 588FF, 588FDA, 1324

Cases cited: Accord Pacific Holdings Pty Limited v Accord Pacific Land Pty Limited (in liq) [2011] NSWSC 707
Allen v Atalay (1993) 12 ACLC 7
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245
Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705
Hamilton v Oades [1989] 166 CLR 486
In the matter of Idoport Pty Limited (In Liq) [2011] NSWSC 322
Johnson v Gore Wood & Co [2002] 2 AC 1
McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 129
Oates v Hawkins [2010] NSWSC 491
Pascoe; in the matter of Matrix Group Limited (in liquidation) [2011] FCA 1117
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Allebart Pty Ltd (In Liq) [1971] 1 NSWLR 24
Re Brian Cassidy Electrical Industries Pty Ltd (1984) 2 ACLC 628
Southern Equities Corp Ltd (In Liq); Re Bond & Caboche v England (1997) 25 ACSR 394
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
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722

Date of hearing: 22 November 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 68

Counsel for the Applicants: MR Aldridge SC appears with JA Hogan-Doran

Solicitor for the Applicants: Gilbert & Tobin

Counsel for the Plaintiff/Respondent: TM Thawley SC with CA Botsman

Solicitor for the Plaintiff/Respondent: Kemp Strang

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:

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 (No 2)

Details

AGLC: Sutherland v Pascoe, in the matter of Matrix Group Limited as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 (No 2) [2012] FCA 1361
Case: [2012] FCA 1361
Decision Date: 28 November 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Sutherland v Pascoe (No 2) was heard. The dispute involved the liquidators of a company, who sought to examine individuals in furtherance of their investigation into the company's affairs. The defendants argued that the summonses were issued for an improper purpose, namely to harass or intimidate, and that the claims were barred by res judicata or Anshun estoppel. The defendants also claimed that there was material non-disclosure to the Registrar in relation to the liquidators' conduct.

The legal issues before the court included whether the summonses were issued for an improper purpose, whether the claims were barred by res judicata or Anshun estoppel, and whether there was material non-disclosure to the Registrar. The court considered the relevant authorities and principles in relation to these issues, including the need to balance the rights of creditors to a fair investigation with the rights of individuals to be free from harassment and unnecessary intrusion.

The court found that the summonses were not issued for an improper purpose and that the claims were not barred by res judicata or Anshun estoppel. The court also found that there was no material non-disclosure to the Registrar. The court held that the liquidators were entitled to examine the defendants in furtherance of their investigation into the company's affairs, subject to any relevant limitations and protections. The court emphasised the importance of the liquidators acting in good faith and not abusing the process of the court.

The court made orders dismissing the defendants' applications and costs orders in favour of the liquidators. The defendants were ordered to comply with the summonses and provide the information requested by the liquidators. The liquidators were also granted leave to appeal to the Full Court of the Federal Court.

Orders