Town & Country Marketing Pty Limited (In Liquidation)

[2003] NSWSC 195

CITATION:	Town & Country Marketing Pty Limited (In Liquidation) [2003] NSWSC 195
HEARING DATE(S):	19 March 2003
JUDGMENT DATE:	19 March 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Examination not to proceed
CATCHWORDS:	CORPORATIONS - winding up - examination summons - whether examination to proceed when there is an unresolved conflict in evidence about whether personal service has been effected
LEGISLATION CITED:	Corporations Act 2001
CASES CITED:	Actwane Pty Limited (In liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512
PARTIES :	Alexander Raymond Walton - Applicant Josephine Ann Walton - Applicant Hugh Charles Thomas - Respondent
FILE NUMBER(S):	SC 2768/02
COUNSEL:	G Butterfield, solicitor - Applicants S. Titus, solicitor - Respondent
SOLICITORS:	Marsdens Law Group - Applicants Carneys Lawyers - Respondent

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

CAMPBELL J

WEDNESDAY 19 MARCH 2003

2768/02 TOWN & COUNTRY MARKETING PTY LIMITED (IN LIQUIDATION)

JUDGMENT

1 HIS HONOUR: On 31 January this year, yesterday and today were set aside by the Registrar for summons concerning the affairs of Town & Country Marketing Pty Limited (In Liquidation). The liquidator of that company wished to examine, on those days, Mr Alexander Walton and Mrs Josephine Anne Walton. In connection with their examination, the liquidator also wished to obtain certain documents from a company with which Mr and Mrs Walton were connected, namely, Neoform Development and Interiors Pty Limited.

2 An order for production of documents directed to Neoform Development and Interiors Pty Limited was obtained from the court on 31 January this year. Summonses for public examination of Mr and Mrs Walton were also obtained from the court on 31 January this year.

3 The process whereby examinations are held is governed by s.596A and following of the Corporations Act 2001. It is common ground between the parties before me that personal service is part of the prerequisites for such examination unless the Court has directed some other manner of service. The court can, of course, order substituted service if personal service is not practical, and ultimately, has power to secure attendance at an examination by issuing a warrant for arrest: Actwane Pty Limited (In liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512.

4 Some attempts were made on behalf of the liquidator to serve Mr and Mrs Walton and Neoform Development and Interiors Pty Limited. The latter company has an address at the same place as the residential address of Mr and Mrs Walton. Those attempts at service were not successful. On 3 March 2003, the solicitor for the liquidator wrote a letter, separately, to each of the people or entity sought to be served. So far as Mr and Mrs Walton were concerned, the letter enclosed the summons for public examination which had been attempted to be served. It stated that the process server

“has been unable to do so because the property is a security property with locked gates and dogs. In those circumstances we have written to Hunter Lawyers who have acted for Neoform Development and Interiors Pty Limited in earlier Supreme Court litigation requesting that they obtain instructions to accept service on your behalf and otherwise foreshadowing an application for substituted service will be made. Could you or Hunter Lawyers contact us to that we can make arrangements for service or to facilitate service. If service cannot be effected by the due date we put you on notice that we will seek to adjourn the hearing and to take other steps involving applications for substituted service, to ensure your attendance at court.”

5 While the precise verbiage of the letter to Neoform was different, the general message, namely, that a copy of the order for production was enclosed, and that service had not been able to be effected, and that if it could not be effected in time there would be an application for substituted service, was the same. The liquidator has not made any application for substituted service.

6 There is, on the court file, an affidavit of Anthony Daniel Bradley relating to personal service on Mr Walton at 6.10 pm on 5 March 2003, on Mrs Walton at 6.10 pm on 5 March 2003, and on Neoform at the same time. Each of those services is sworn, by Mr Bradley, to have taken place at Lot 1 Olive Street, Minto Heights, which is the residential address of Mr and Mrs Walton.

7 The examinations did not proceed yesterday. Today, Mr Butterfield, solicitor for Mr and Mrs Walton, appeared before the Registrar, and sought the Court’s decision that the examinations not proceed today. Mr Butterfield obtained, initially, a brief adjournment to enable him to file some affidavits. Upon reading the affidavits the Registrar referred the matter to me as Duty Judge.

8 The first of those affidavits is an affidavit sworn by Mr Walton. Mr Walton says that he was not personally served by “Stephen Bradley” on 5 March 2003. That name is not the name of the person who deposed to serving the document on Mr Walton – the deponent of the affidavit of service was Anthony Daniel Bradley.

9 Mr Walton goes on to say, though, that:

“at about the time Mr Bradley says that service was effected, I was at my solicitor’s office, Marsdens Lawyers at Campbelltown, in conference”

with a solicitor of that firm. Annexed is a copy of the solicitor’s diary for that day, which shows the solicitor had set aside 4.30 to 6.30 pm for the purpose of the conference with Mr Walton. Mr Walton says that he left the office at about 6.30 pm.

10 Notwithstanding that there is apparently a mistake in the name of “Stephen Bradley” in Mr Walton’s affidavit, the balance of the material he deposes to is inconsistent with service having been effected in the way that Mr Anthony Bradley deposes occurred.

11 Mr Walton also states, on information and belief from his wife, that she was not served by a process server in March at all.

12 The second affidavit, which Mr Butterfield prepared today, is one of Joshua Doyle. He is the boyfriend of the daughter of Mr and Mrs Walton. He deposes as follows:

“2. On 3 March 2003 about 4:00pm a person who I know drove to the gates of Lot 1 Olive Street Minto Heights. I saw that it was Tony Bradley a person who I know through the Narellan Football Club. Tony said to me words to the effect, ‘Is Alexander or Josephine home?’ I said, ‘No.’ He said, ‘I have these documents here to serve.” I said, ‘Can I take them?’ He said, ‘No I have to serve them personally.’
“3. We then had general discussion about how I knew Lex and Josephine. He then said ‘Can you give me a call when they are here because I am from Edensor Park and it is a fair way out of my way.’ I didn’t call Tony from that point.
“4. On 5 March 2003 about 6:00pm I was at Lot 1, Olive Street Minto Heights with my girlfriend. I heard a horn sound and went to the front gate and saw that it was Tony Bradley. I said, ‘There not here mate.’ He said, ‘Well I have this neo form 1, it has to stay.” I said, ‘Ok, do you want me to take the other too?’ He said, ‘It will save a lot of hassle.’ (He then um and ah and sort of stalled and then said) ‘Can you get them to say that they were served personally, it will save a lot of hassles.’
“5. I took the documents, I think I might have said ok. I didn’t really know what I was saying ok to but I took the documents because I thought it would save him a hassle. He then said, ‘Because I am going to go back and say that I served these personally and you know who they will believe in Court.’ (When he said that he said it in a joking sort of way.
“6. I then rang Lex Walton on his mobile.”

13 In these circumstances, I am not satisfied that there has been the foundation necessary before an examination can take place. There has been no cross-examination of either deponent – all I am presented with is two sets of affidavits, which tell inconsistent stories. There is no evidence of a contextual kind that lets me form a view about the probabilities of one story rather than another being true. Requiring someone to submit to a compulsory examination is a serious exercise of the court’s power, which should be undertaken only when the court is satisfied that the pre-conditions for its exercise have been met. The conflicting affidavits mean that I am not so satisfied. In these circumstances, I would not require Mr Walton to submit to an examination today, notwithstanding that he is in attendance at court. Mrs Walton is not in court today, but neither would I require her to submit to a compulsory examination today.

14 Another factor, which I take into account here, is that the letters from the liquidator’s solicitors of 3 March 2003 foreshadowed that, if personal service was not effected, there would be an application for substituted service. Yet, no such application for substituted service was made. Those letters are ones which could raise a reasonable doubt about whether the examinations would proceed today.

15 Mr and Mrs Walton applied for the costs of today. I am not prepared to make an order for their costs on the basis of the material I have heard so far. The basis of my decision is that I am not satisfied that the foundation for an examination has been laid. I have not made a finding, one way or the other, about what the truth of the matter is concerning their service.

16 In these circumstances, I shall reserve the costs of today’s application.

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Last Modified: 04/09/2003