Legal Research
Cases
Wily re LED (South Coast) Pty Ltd

Wily re LED (South Coast) Pty Ltd

Link copied

Case Copied 11 September 2009 25 min read

Contents

On this page

Reported Decision:

76 NSWLR 428
74 ACSR 145
234 FLR 366
27 ACLC 1442
[2010] ALMD 1457

New South Wales

Supreme Court

CITATION: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946

HEARING DATE(S): 03/09/09

JUDGMENT DATE :
11 September 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Application dismissed with costs.

CATCHWORDS: CORPORATIONS - winding up - examination of officers and others by liquidators - application by examinees for discharge of examination summonses - where proceedings commenced by company shortly before commencement of winding up - where liquidators seek to examine persons who are defendants and likely witnesses - purpose of liquidators is to come to concluded view about viability of litigation and to obtain information to assist decision making by potential litigation funder - whether permissible purposes - whether purpose of conducting dress rehearsal for cross-examination predominates - PROCEDURE - review of decision of registrar - nature of such review - where burden lies - whether circumstance that court is exercising federal jurisdiction changes nature of review

LEGISLATION CITED: Corporations Act 2001 (Cth), Part 5.9, ss 596B, 596C, 596F(1)(a), 1337B
Judiciary Act 1903 (Cth), s 79
Supreme Court Act 1970, s 121(3)
Supreme Court (Corporations) Rules 1999, rules 11.3, 11.5
Uniform Civil Procedure Rules 2005, rule 49.19

CATEGORY: Principal judgment

CASES CITED: Ariff v Fong [2007] NSWCA 183; (2007) 63 ACSR 384
Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49
Fetzer v Irving [2005] SASC 53; (2005) 52 ACSR 354
Gerah Imports Pty Ltd v The Duke Group Ltd (1993) 61 SASR 557
Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334
Gould v Brown [1998] HCA 6; (1998) 193 CLR 346
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
House v The King [1936] HCA 40; (1936) 55 CLR 499
Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 112
Pioneer Park Pty Ltd v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344; (2007) 65 ACSR 383
Re Clutha Ltd; Cuming v Abbey [2003] NSWSC 235; (2003) 44 ACSR 134
Re Greenhill; Ex parte Pook (1988) 83 ALR 295
Re Laurie Cottier Productions Pty Ltd (1992) 9 ACSR 513
Re Maville Hose Ltd [1939] Ch 32
Re New Tel Ltd; Evans v Wainter Pty Ltd [2005] FCAFC 114; (2005) 145 FCR 176
Re Radio Publicity Ltd (1936) 53 WN (NSW) 220
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

PARTIES: Andrew Hugh Jenner Wily - First Plaintiff/Respondent
David Anthony Hurst - Second Plaintiff/Respondent
Donald Geoffrey O'Brien, Herbert Ralph Moll and Cameron Hume - Applicants

FILE NUMBER(S): SC 4000/09

COUNSEL: Dr A S Bell SC/Mr J R Williams - Applicants
M C R C Newlinds SC/Mr D R Sulan - Respondents

SOLICITORS: Sparke Helmore - Applicants
Piper Alderman - Respondents

IN THE SUPREME COURT
OF NEW…

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.

Keep reading for free

Create a free CaseChat account to read Wily re LED (South Coast) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 946
Decision Date: 11 September 2009

CaseChat Overview and Summary

The proceedings before the Federal Court involved an application by the directors and a former director of Wily re LED (South Coast) Pty Ltd to discharge examination summonses issued by the company's liquidators. The company was in the process of being wound up, and the liquidators sought to examine certain individuals, who were also defendants in proceedings brought by the company shortly before the winding up, to gather information and assess the viability of potential litigation. The examinees argued that the liquidators' purposes were not permissible under the relevant legislation and that the primary objective was to conduct a dress rehearsal for cross-examination.

The legal issues before the court included whether the liquidators' purposes in seeking to examine the individuals were permissible under the Corporations Act and whether the nature of the review by the Federal Court of a registrar's decision was affected by the fact that the court was exercising federal jurisdiction. The examinees contended that the liquidators' purposes were not aligned with the statutory objectives and that the predominant purpose was to prepare for potential litigation rather than to gather information to assist in decision-making by a potential litigation funder.

The court held that the liquidators' purposes were permissible as they aligned with the statutory objectives of enabling the liquidators to come to a concluded view about the viability of litigation and to obtain information to assist decision-making by a potential litigation funder. The court found that the predominant purpose was not to conduct a dress rehearsal for cross-examination but rather to gather information for the purposes outlined in the Act. Regarding the nature of the review, the court held that the review was not materially different simply because the court was exercising federal jurisdiction, and the burden of establishing that the registrar's decision was erroneous lay with the party seeking to discharge the examination summonses.

The orders made by the court were that the application to discharge the examination summonses was dismissed, and the liquidators were permitted to proceed with the examination of the individuals as sought. The court also held that the review of the registrar's decision was not materially different simply because the court was exercising federal jurisdiction, and the burden of establishing that the registrar's decision was erroneous lay with the party seeking to discharge the examination summonses.

Orders