Vartelas, in the matter of CW Construction Pty Ltd (In Liquidation) (Receiver and Manager Appointed)

[2011] FCA 446

FEDERAL COURT OF AUSTRALIA

Vartelas, in the matter of CW Construction Pty Ltd (In Liquidation) (Receiver & Manager Appointed) [2011] FCA 446

Citation:		Vartelas, in the matter of CW Construction Pty Ltd (In Liquidation) (Receiver & Manager Appointed) [2011] FCA 446
Parties:		IN THE MATTER OF CW CONSTRUCTION PTY LTD (ACN 007 947 935) (IN LIQUIDATION) (RECEIVER AND MANAGER APPOINTED) PAUL VARTELAS AS LIQUIDATOR
File number:		SAD 30 of 2011
Judge:		MANSFIELD J
Date of judgment:		28 April 2011
Date of hearing:	28 April 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	5
Counsel for the Plaintiff:	B Roberts
Solicitor for the Plaintiff:	Kelly & Co.
Counsel for the Previous Liquidator:	J Pennel
Solicitor for the Previous Liquidator:	Maitlands Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 30 of 2011

IN THE MATTER OF CW CONSTRUCTION PTY LTD (ACN 007 947 935)
(IN LIQUIDATION) (RECEIVER & MANAGER APPOINTED)
 

PAUL VARTELAS AS LIQUIDATOR Plaintiff
JUDGE:	MANSFIELD J
DATE OF ORDER:	28 APRIL 2011
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 30 of 2011

IN THE MATTER OF CW CONSTRUCTION PTY LTD (ACN 007 947 935)
(IN LIQUIDATION) (RECEIVER & MANAGER APPOINTED)

PAUL VARTELAS AS LIQUIDATOR Plaintiff
JUDGE:	MANSFIELD J
DATE:	28 APRIL 2011
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 2 March 2011, the Court made orders pursuant to ss 596B and 596D of the Corporations Act 2001 (Cth) (the Act) for Peter Macks to attend for examination about the examinable affairs of CW Construction Proprietary Limited (in liquidation) (CWC), and to produce certain documents specified in the orders in relation to that examination. Mr Macks was a previous liquidator of CWC. Mr Macks applied on 23 March 2011 for orders setting aside the examination and setting aside the order for the production of documents. Unless the orders are set aside, the examination and the production is to take place on 3 May 2011. Counsel for Mr Macks informed the Court today that he no longer pressed orders setting aside the examination or production orders, but was concerned about the use to which certain documents produced by him pursuant to the orders might be applied.

2. In particular, he has sought an order that the documents produced by him in accordance with s 596D of the Act, except to the extent that those documents comprise books and records of CWC itself, not be uplifted by any person other than the plaintiff’s staff and legal advisors, and not be disclosed to any other person than the plaintiff’s staff and legal advisors, including, in particular, to creditors or shareholders of CWC or their legal advisors. That order was intended to confine, not simply the disclosure of documents, but the contents of the disclosure of documents which are, in essence, the records of Mr Macks, concerning his activities and work as liquidator of CWC.

3. In discussion with counsel, it was acknowledged that the plaintiff, as the current liquidator of CWC, has certain statutory duties to fulfil under the Act and the regulations under the Act in relation to reporting to creditors, and in other respects.  It was acknowledged that the plaintiff should be at liberty to disclose the contents of such documents to the extent to which the plaintiff considered it necessary as liquidator to do so to fulfil his statutory reporting obligations.  Counsel for the plaintiff acknowledged that, as a liquidator he is an officer of the court, that he is aware of and is bound by the usual restrictions imposed upon him by reason of the circumstances in which he will come to receive the documents and, indeed, the information which flows from the examination of Mr Macks.

4. Counsel for the plaintiff therefore says that it is neither necessary nor appropriate that the court should, in an anticipatory way, make any order which might impliedly assume that there is a risk that the plaintiff would not comply with the normal obligations applicable to him in relation to the limited use to which he may put and convey the documents or the contents of the documents received in the course of the examination.  Given that acknowledgement, I do not see it as either appropriate or necessary to make the order which has been sought.  In essence, his obligations as an officer of the court are acknowledged, and will be given effect to. 

5. To an extent, I suspect Mr Macks has achieved what he sought to achieve, which was to reinforce in the mind of the plaintiff, those obligations.  I do not suggest for a minute that it was necessary to do so, but Mr Macks may have the comfort of knowing that he has conveyed a reminder of those obligations.  It is otherwise not sought to press the orders sought on the interlocutory motion of 23 March 2011.  I accordingly dismiss that application.  It is accepted that there should be no order as to costs of that application. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        3 May 2011