Trevor (Liquidator) v Evans

[2017] FCAFC 36

FEDERAL COURT OF AUSTRALIA

Trevor (Liquidator) v Evans [2017] FCAFC 36

Appeal from:

Trevor, in the matter of Bell Group NV (in liq) [2016] FCA 851

File number(s):

NSD 1293 of 2016

Judge(s):

MIDDLETON, JAGOT AND WIGNEY JJ

Date of judgment:

24 February 2017

Catchwords:

PRACTICE AND PROCEDURE – extension of time to discharge examination summons – arguable case of abuse of process – leave to appeal – no doubt about decision below – no injustice – leave refused

Legislation:

Corporations Act 2001 (Cth) ss 596B, 596C

Federal Court of Australia Act 1976 (Cth) s 24

Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA)

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

Evans v Wainter Pty Ltd [2005] FCAFC 114; (2005) 145 FCR 176

House v The King (1936) 55 CLR 499

Lucic v Nolan (1982) 45 ALR 411

Simionato & Farrugia v Macks & Macks (1996) 19 ACSR 34

Date of hearing:

24 February 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

37

Counsel for the Applicant:

Norman O’Bryan SC with Anthony D’Arcy

Solicitor for the Applicant:

Lipman Karas

Counsel for the Respondents:

Noel Hutley SC with Imtiaz Ahmed

Solicitor for the Respondents:

Jones Day

ORDERS

NSD 1293 of 2016

BETWEEN:

GARRY TREVOR IN HIS CAPACITY AS LIQUIDATOR OF BELL GROUP ARBN 073 576 502

Applicant

AND:

PAUL DOMINIC EVANS

First Respondent

DAVID HARGREAVES

Second Respondent

BRUCE MEREDITH (and another named in the Schedule)

Third Respondent

JUDGES:	MIDDLETON, JAGOT AND WIGNEY JJ
DATE OF ORDER:	24 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pays the respondents’ costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

1. I agree with the reasons of Justice Jagot.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        9 March 2017

REASONS FOR JUDGMENT

JAGOT J:

1. This is an application for leave to appeal against the orders made by the primary judge granting the respondents an extension of time to seek to discharge examination summonses, and ordering that access to the affidavit in support of the application for issue of the summonses be granted to the respondents, as provided for in s 596C(2) of the Corporations Act 2001 (Cth). The orders were consequential on the primary judge’s reasons for judgment in Trevor, in the matter of Bell Group NV (in liq) [2016] FCA 851.

2. As the respondents submitted, the judgment is properly characterised as an interlocutory discretionary judgment on a matter of practice and procedure, which explains why leave to appeal is required…