Leeds v Richards
[2016] NZHC 1191
•3 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-140 [2016] NZHC 1191
UNDER the Insolvency (Cross-border) Act 2006 IN THE MATTER OF
a request for assistance to facilitate the enforcement of an order dated 19
December 2014 of the high Court of
Justice of England and WalesBETWEEN
MICHAEL THOMAS LEEDS AND
NICHOLAS STEWART WOOD Applicants
AND
MURRAY RICHARDS First Respondent
STEINDLE WILLIAMS LEGAL LIMITED
Second Respondent
Hearing: 30 May 2016 Appearances:
S Bisley for Applicants
No appearance for RespondentsJudgment:
3 June 2016
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 3 June 2016 at 1:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
Solicitors:
Buddle Findlay (S Bisley), Auckland, for Applicants
LEEDS v RICHARDS [2016] NZHC 1191 [3 June 2016]
[1] The applicants are the English joint trustees in bankruptcy of the estate of Mr Richards. Vivendi SA and Centenary Holdings III Ltd obtained judgment against Mr Richards in the Chancery Division of the High Court in England for
£14,193,461.41 on 9 October 2013.1 On Vivendi’s application the English High
Court adjudicated Mr Richards bankrupt on 19 December 2014. The applicants were appointed joint trustees on 5 February 2015. Judicial administration of the bankruptcy passed to the County Court at Croydon. On 16 November 2015 it issued a letter of request to this court to act in its aid and be auxiliary to it under s 8 of New Zealand’s Insolvency (Cross-border) Act 2006. Specifically it sought the following assistance:
1that the bankruptcy order and the appointment of the joint trustees be recognised in New Zealand;
2that the joint trustees may exercise the powers conferred on the Official Assignee under ss 165(1) and 171 of the Insolvency Act to obtain from Steindle Williams Legal Ltd information relevant to Mr Richards’ bankruptcy; and
3that the joint trustees may apply to this court for further relief if assets are located in New Zealand and which require this court’s assistance to realise or if examination powers are required to obtain further information.
By originating application the trustees have sought orders in those terms.
[2] The trustees have applied under s 8 of the Insolvency (Cross-border) Act:
8 High Court to act in aid of overseas courts
(1) This section applies to a person referred to in article 1(1) of
Schedule 1.
(2) If a court of a country other than New Zealand has jurisdiction in an insolvency proceeding and makes an order requesting the aid of the High Court in relation to the insolvency proceeding of a person to whom this section applies, the High Court may, if it thinks fit, act in aid of and be auxiliary to that court in relation to that insolvency proceeding.
(3) In acting in aid of and being auxiliary to a court in accordance with subsection (2), the High Court may exercise the powers that it could exercise in respect of the matter if it had arisen within its own jurisdiction.
They rely on s 8 because they accept that Mr Richards’ bankruptcy is not a foreign main proceeding or a foreign non-main proceeding under the Model Law on Cross- Border Insolvency.2
[3] The primary focus of the application is information and records held by Steindle Williams Legal Ltd. The trustees do not seek any order against Mr Richards directly. He has been joined to give him an opportunity to be heard on the application.
[4] Mr Richards, the bankrupt, is a New Zealander but presently lives in Australia, apparently in Sydney. He refuses to say exactly where he lives. The trustees complain that he is unco-operative and for that reason they have objected to his automatic discharge from bankruptcy.
[5] When Mr Richards gave evidence in England, he identified Steindle Williams Legal Ltd as lawyers who had acted for him. Steindle Williams Legal Ltd is an incorporated law firm in Auckland. It has entered an appearance. It neither opposes nor consents to the orders sought by the trustees. It advises that it does not now act for Mr Richards, and does not have his consent to provide any information to the joint trustees. Given the obligation of client-lawyer confidentiality, it will not disclose information except on court order. It leaves it to Mr Richards to run any opposition to the application.
[6] As an Australian resident served with a civil proceeding issued out of a New Zealand court, Mr Richards has applied under s 22 of the Trans-Tasman Proceedings Act 2010 for a stay of the joint trustees’ application on the grounds that an Australian court is a more appropriate forum. This decision is on that application.
Mr Richards
[7] In the proceeding in which Vivendi obtained judgment, Newey J said:3
Mr Richards comes from New Zealand. As a young man, he began studying accountancy and law, but he did not complete the course. Instead, he sought to become a motor racing driver, but that career was cut short by a severe accident. In 1966, he moved to Australia, where he became involved in the property business. 12 years later, he was convicted in Australia of conspiring to cheat and defraud a company called George Hudson Pty Ltd and its creditors and given a sentence of some ten years’ imprisonment; the relevant events had taken place in 1971-1972, when Mr Richards was in his mid-20s. Mr Richards appealed against both conviction and sentence. The appeal was dismissed on 7 December 1979, but Mr Richards’ evidence in the present proceedings was nonetheless that he did not commit the office of which he was convicted.
At all events, the conviction did not stop Mr Richards pursuing a business career. He acquired extensive experience in property and technology matters and company acquisitions; by his own account, he was a “serial entrepreneur”. Asked about his role, he said that it was essentially to find investment projects for people or companies.
[8] Mr Richards says that he never had an English domicile or residence. He says that his only source of income is an Australian pension. The trustees do not necessarily accept that: they point to the missing £14M. Mr Richards does not accept his liability under the judgment Vivendi obtained against him, and does not accept that he has been effectively bankrupted. Mr Richards’ refusal to disclose his address or whereabouts is consistent with his defeating and delaying his creditors
[9] Mr Richards has not engaged a lawyer. He has specified his email address as the address for service, but has given an address at a Sydney firm of solicitors if the documents are to be served on him by hard copy.4 Associate Judge Doogue has also directed that Mr Richards may also be served at the office of the New Zealand barristers who assisted him in filing his stay application.
[10] At one stage Mr Richards asked for the proceeding to be adjourned to a date after 18 July 2016 because he would lose his entitlement to Australian
3 Vivendi SA v Richards, above n 1, at [4] and [5].
4 He is entitled to have an Australian address for service in trans-Tasman proceedings under the
definition of “address for service” in r 1.3 of the High Court Rules.
superannuation if he came to New Zealand. Judge Doogue asked for verifying information but Mr Richards did not provide it.
[11] I offered him the opportunity to take part in the hearing remotely by telephone,5 but he advised the Registrar that he is unable to do so even though he has been in effective telephone contact with the court registry. Notwithstanding his absence, I have considered his written submissions.
Trans-Tasman Proceedings Act 2010
[12] This is a proceeding under the Trans-Tasman Proceedings Act 2010, Part 2, subparts 1 and 2. More specifically, it is a civil proceeding commenced in a New Zealand court.6 It is not within any of the exclusions under s 12 (2). Accordingly, the trustees were entitled to serve Mr Richards with the application in Australia without first obtaining leave.7
[13] Under Part 2, subpart 2, a New Zealand court may decline jurisdiction on the grounds that an Australian court is the more appropriate forum. Mr Richards’ application is within time under s 21(2) of the Act – within 30 working days after being served. Section 21(3) provides:
(3) The New Zealand court may only stay the proceeding if it is satisfied that an Australian court has jurisdiction to determine matters in issue and that it is the more appropriate court to determine those matters.
And s 24(1):
Order of stay of proceeding
(1) On an application under section 22, the New Zealand court may, by order, stay the proceeding if it is satisfied that an Australian court—
(a) has jurisdiction to determine the matters in issue between the parties to the proceeding; and
(b) is the more appropriate court to determine those matters.
5 The Trans-Tasman Proceedings Act 2010 allows for remote appearances: ss 37-43, including by audio link: s 41.
6 Trans-Tasman Proceedings Act 2010, s 12(1)(a).
7 Section 13.
[14] In determining whether the Australian court is the more appropriate court, the
New Zealand court must take into account the matters in s 24(2).
Is there an Australian court to determine the matters in issue?
[15] Mr Richards has not adduced any evidence as to courts with a bankruptcy jurisdiction in Australia. I can, nevertheless, take notice that Australia does have bankruptcy courts and that Australia has enacted legislation adopting the Model Law on cross-border insolvency.8 Further s 29 of the Bankruptcy Act 1966 (Cth) corresponds to s 8 of the Insolvency (Cross-Border) Act:
Courts to help each other
(1) All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy.
(2) In all matters of bankruptcy, the Court:
(a) shall act in aid of and be auxiliary to the courts of the external Territories, and of prescribed countries, that have jurisdiction in bankruptcy; and
(b) may act in aid of and be auxiliary to the courts of other countries that have jurisdiction in bankruptcy.
(3) Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in a matter of bankruptcy is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the matter had arisen within its own jurisdiction.
…
(5) In this section, prescribed country means:
(a) the United Kingdom, Canada and New Zealand;
…
[16] The trustees submit that an Australian court cannot have jurisdiction for this particular proceeding, because the County Court in Croydon has addressed its
request to the High Court of New Zealand, not to any other court. They say that only
8 Cross-border Insolvency Act 2008 (Cth).
the New Zealand High Court can deal with the County Court’s request, not any
other.
[17] That does not necessarily follow. Jurisdiction under s 21(3) and s 24(1)(a) of the Trans-Tasman Proceedings Act is determined according to the content of the matters in issue, not according to the court or the country where the plaintiff chooses to start a proceeding.9 The fact that a plaintiff has invoked the jurisdiction of a New Zealand court does not mean that the plaintiff could not also start a civil proceeding in Australia to determine the same matter in issue. The fact that the Croydon County
Court issued a letter of request under s 8 of the Cross- Border Insolvency Act to this Court does not change the position. The County Court issued the letter of request only because the trustees requested it to do so. Disregarding the practicalities for the moment, in law at least the joint trustees could have requested the Croydon County Court to send a letter of request to an Australian court with bankruptcy jurisdiction to determine the matters in issue. The fact that the trustees selected the New Zealand High Court rather than an Australian bankruptcy court does not mean that an Australian bankruptcy court could not have jurisdiction under s 21(3). Instead, it is necessary to look into the jurisdiction question further.
Jurisdiction of an Australian court under Australian law
[18] The question here is whether an Australian bankruptcy court would have jurisdiction under Australian law to hear an application directed against Steindle Williams Legal Ltd, a New Zealand law practice. The starting point is that Australian courts have jurisdiction over persons served within Australia. Australian proceedings may also be issued against persons living outside Australia. In the case of persons served in New Zealand, Australia’s Trans-Tasman Proceedings Act 2010
gives Australian courts long arm jurisdiction.10 Accordingly, an Australian
bankruptcy court hearing an application under s 29 of the Bankruptcy Act may make orders against Steindle Williams Legal Ltd in New Zealand. Jurisdiction
requirements under Australian law would be satisfied.
9 The effect of choice of forum clauses comes at the next stage, consideration of the appropriate court – s 24(2)(d). In the case of exclusive choice agreements, s 25 applies.
10 Section 9 of the Australian Act corresponds with s 13 of the New Zealand Act.
Recognition in New Zealand
[19] There is a further question: would any order under s 29 of the Bankruptcy Act made by an Australian court bind Steindle Williams Legal Ltd in New Zealand? Part
2, subpart 5 of the Trans-Tasman Proceedings Act provides for the recognition and enforcement in New Zealand of registrable Australian judgments. The process of recognising and enforcing registrable Australian judgments is streamlined, with fewer grounds of objection than were available under the preceding law. Not all judgments given in civil proceedings by an Australian court are registrable in New Zealand. Under s 54(2)(b), there are exceptions for non-money judgments declared not registrable by Orders in Council under s 54(3). One such order is the Trans- Tasman Proceedings (Specified Australian Insolvency Judgments Excluded from Recognition or Enforcement in New Zealand and Excluded Matter) Order 2013. Clause 4 says:
(1) This clause declares a specified Australian insolvency judgment to be excluded from recognition or enforcement under subpart 5 of part
2 of the Act;
(2) The declaration is made (for the purposes of s 54(2)(b) of the Act) which relates to non-money judgments of the kind excluded from recognition or enforcement under that subpart/
(3) where a specified Australian insolvency judgment is involved, in this clause, means a judgment that is given under Australian domestic insolvency laws and it does only the following: …
…
(b) recognises, or recognises the appointment outside Australia of a representative to act in or in respect of, an insolvency proceeding outside Australia.
[20] The Regulation also extends to assistance or relief under Australia’s Cross- Border Insolvency Act 2008 (Cth).11
[21] Any orders made by an Australian bankruptcy court under s 29 of the Bankruptcy Act 1966 in response to a letter of request from England would involve recognition of an insolvency proceeding outside Australia, a matter within cl 4.
Similarly, if the Cross-border Insolvency Act were used instead of s 29 of the
11 Cl 5.
Bankruptcy Act, clause 5 would bar recognition of those orders in New Zealand. By virtue of the order in council, the recognition and enforcement provisions of the Trans-Tasman Proceedings Act cannot be used to enforce in New Zealand any Australian orders of the kind the trustees seek against Steindle Williams Legal in New Zealand.
[22] While Australian judgments under the order in council may not be registrable under the Trans-Tasman Proceedings Act, for completeness I consider whether they might otherwise be enforceable in New Zealand. Henry J stated the common law test for enforcement of a foreign judgment in personam in Gordon Pacific
Developments Property Ltd v Conlon:12
1If the judgment debtor was at the time the proceedings were instituted resident (or possibly present) in the foreign country.
2If the judgment debtor was a plaintiff in a counterclaim in the proceedings in the foreign Court.
3If the judgment debtor, being a defendant in a foreign Court, submitted to its jurisdiction by voluntarily appearing in the proceeding.
4If the judgment debtor, being a defendant in the foreign Court, had before the commencement of the proceeding agreed in respect of the subject-matter to submit to the jurisdiction of the Courts of that country.
[23] The test under the Reciprocal Enforcement of Judgments Act is broadly similar.13 It is fanciful to suggest that Steindle Williams Legal Ltd would voluntarily submit to the jurisdiction of an Australian bankruptcy court. It does not reside or have a place of business in Australia. In short, under New Zealand’s jurisdiction recognition rules (at common law, under the Reciprocal Enforcement of Judgments Act and under the Trans-Tasman Proceedings Act) a New Zealand court would not recognise an Australian court as having jurisdiction if any attempts were made to enforce orders of an Australian bankruptcy court against Steindle Williams Legal Ltd
in New Zealand.
12 Gordon Pacific Developments Property Ltd v Conlon [1993] 3 NZLR 760 (HC) at 766-767.
13 Reciprocal Enforcement of Judgments Act 1934, s 6(3). There is an added ground – the debtor had an office or place of business in the country where judgment was obtained and the proceeding related to a transaction effected at that office or place: s 6(3)(a)(v).
[24] If New Zealand will not recognise the orders for the purpose of enforcement in New Zealand, it is pointless to treat an Australian court as having jurisdiction to determine the trustees’ application against Steindle Williams Legal Ltd. Even though an Australian bankruptcy court might under Australian law have jurisdiction to act on a letter of request from the Croydon County Court and make orders against Steindle Williams Legal Ltd, a New Zealand court would not recognise those orders under its jurisdiction recognition rules. Accordingly, an Australian court does not have jurisdiction under s 21(3).
[25] I repeat that the trustees ask for orders only against Steindle Williams Legal Ltd, not against Mr Richards. He has been joined as a party so as to give him hearing rights on the application. Potentially he may have interests which the court may need to consider in the application against Steindle Williams Legal Ltd. But enforcement of any orders against him in Australia will not arise.
Is an Australian court the more appropriate court to determine the application?
[26] In case I am wrong in finding that an Australian court does not have jurisdiction under s 21(3) and s 24(1), I consider whether an Australian bankruptcy court is the more appropriate court to determine the matters in issue in the trustees’ application.
[27] In Re Featherston Resources Ltd,14 Brereton J said of the equivalent provision under the Australian statute:
[53] As to the second limb, the “more appropriate forum” test mirrors the test provided in respect of domestic proceedings by Service and Execution of Process Act 1992 (Cth), s 20 and Jurisdiction of Courts (Cross-Vesting) Act
1987 (Cth), s 5, in place of the “clearly inappropriate forum” that applies at
common law. The test directs attention to the more appropriate, not the more convenient, court. While convenience is undoubtedly an important
consideration, it is not determinative. Notions of the “natural forum” can
inform what is the “more appropriate forum”, as I observed in the context of
the Cross-Vesting Act in BioAg Pty Ltd v Hickey [2007] NSWSC 296 (at [7]:
In identifying the “more appropriate forum”, relevant considerations
including the cost and efficiency of proceedings in the respective
14 Re Featherston Resources Ltd [2014] NSWSC 1139, (2014) 288 FLR 265. For a New Zealand judgment under s 24(2), see Skelton v Z487 Ltd [2014] NZHC 707.
jurisdictions, and the connecting factors referred to by Lord Goff in
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 478
– including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [BHP v Schultz 422 at [18]]. Sometimes, consideration of relevant connecting factors will identify a “natural forum”. Ordinarily, the residence of the defendant is more significant than that of the plaintiff to establish jurisdiction and this may count in identifying the natural forum (BHP v Schultz, 423 [19]; British American Tobacco Australia Ltd v Gordon & Anor [2007] NSWSC 230, [44]].
[28] The issues in the substantive proceeding need to be identified as best they can at what may often be an early stage of the proceeding.15 In a stay application the court is considering only the appropriate forum for the matters in issue, but it does not decide the substantive merits of the case:16
It is the jurisdiction of the court to entertain the claim which is in issue, and that must be determined prior to the court embarking on a hearing of the proceeding, whether substantively or in any interlocutory way.
In applications under s 22 there is no presumption in favour of the New Zealand court. Under s 24(2):
The New Zealand court must not take into account the fact that the proceeding is commenced in New Zealand.
On the other hand, the court’s traditional reluctance to exercise jurisdiction over non- residents does not apply in cases under the Trans-Tasman Proceedings Act.17
[29] In contested forum conveniens cases under rr 6.27-6.29 of the High Court Rules, a plaintiff serving out of the jurisdiction has the onus to show that New Zealand is the appropriate forum. Where a defendant served in New Zealand contends that the case ought to be heard overseas, that defendant has the onus. Following the Australian approach in cases under cross-vesting legislation, it may be appropriate under s 24 of the Trans-Tasman Proceedings Act to regard the matter as
simply an onus of persuasion.18 While there may be a an onus of proof in respect of
15 Turn and Wave Ltd v Northstar Accounts Pty Ltd HC Auckland CIV-2010-404-2268,
23 December 2010.
16 Advanced Cardiovascular Systems Inc v Universal Specialties Ltd [1997] 1 NZLR 186 (CA).
17 Haines v Herd [2015] NZHC 3365, at [44]-[46].
18 Bankinvest v Seabrook (1988) 14 NSWLR 711 at 716, and James Hardie & Co Ltd v Barry
[2000] NSWCA 353 at [100].
particular factual aspects, each side will have to make out its case that its preferred forum is more appropriate.
[30] Mr Richards has raised among his arguments for a stay matters that go to substantive opposition to the trustees’ application. He says, for example, that the trustees ought to have applied for orders against him in Australia for documents he has there, rather than apply in New Zealand for documents held by Steindle Williams Legal Ltd. That is an alternative remedies argument. The place for alternative remedies arguments is at the substantive hearing, not in a stay application. Similarly, he contends that the application is flawed, because his English bankruptcy does not qualify as a foreign main proceeding under the Model Law. He will argue that he did not have his centre of main interest in England. The soundness or otherwise of that argument is to be determined at the substantive hearing. It does not go to the appropriate forum for the substantive hearing.
[31] Now for the factors under s 24(2).
(a) The places of residence of the parties or, if a party is not an individual, its principal place of business
[32] The trustees are in England. Mr Richards is in Australia. Steindle Williams Legal Ltd has its principal place of business in Auckland. As the application is directed primarily against Steindle Williams Legal Ltd, this factor favours New Zealand.
(b)The places of residence of the witnesses likely to be called in the proceeding
[33] Evidence in this case is given by affidavit. Both the trustees and Mr Richards have sworn affidavits. Although Steindle Williams Legal Ltd has not given evidence yet, it could well do so, if only to identify what materials of Mr Richards it holds. As the case will be decided on affidavit evidence, it is largely irrelevant where witnesses live.
(c) The place where the subject matter of the proceeding is situated
[34] The subject matter of the proceeding is the records held by Steindle Williams Legal Ltd. That factor favours New Zealand. A New Zealand court will be in a better position to find out what records Steindle Williams Legal Ltd hold and to decide whether they should be made available to the trustees. Local knowledge of how lawyers practise may assist the judge.
(d)Any agreement between the parties about the court or place in which those matters should be determined or the proceeding should be instituted (other than exclusive choice of court agreement to which s 25(1) applies)
[35] That does not apply.
(e) The law that it would be most appropriate to apply in the proceeding
[36] While there may be some regard to those parts of English insolvency law under which Mr Richards was adjudicated bankrupt and the trustees were appointed (including as to vesting of assets), the case will be concerned primarily with powers available to trustees in bankruptcy under New Zealand law to obtain documents and other relevant information. As Steindle Williams Legal Ltd holds those documents and information on behalf of a client, there will be a particular focus on what rights under New Zealand law the trustees can assert in those materials and whether there is any relevant lawyer/client privilege under New Zealand law by which their former client, Mr Richards, could refuse to allow documents to be handed over. Those New Zealand legal questions will apply whether the case is heard in Australia or New Zealand. It is preferable to decide these questions of New Zealand law in New Zealand. It is generally recognised that it is better to hear a case in a court applying
its own law.19 I refer to an article of PLG Brereton:20
Problems of Proof
Distilling the content of foreign law is problematic, as it requires an Australian court to pronounce the law of a jurisdiction with which it is unfamiliar. It is trite to observe that the best court to adjudge the law of a
19 The Eleftheria [1970] P 94 at 105.
20 PLG Brereton “Proof of foreign law: Problems and initiatives” (2011) 85 ALJ 554 at 556.
particular forum is a court of that forum. There is a risk, as Spigelman CJ
noted in Murakami v Wiryadi (2010) 268 ALR 377 at 406; [2010] NSWCA
7 at [150], that “important aspects of the foreign law will be lost in translation”. As De Boer has observed:
Most judges dealing with foreign law in a conflicts case are unaccustomed to its vernacular, unaware of its various layers of meaning, insensitive to its subtleties, ignorant of its usage, oblivious to its context. Small wonder that they are apt to make mistakes that their colleagues abroad would avoid instinctively. 21
In this case a New Zealand court will be more familiar with New Zealand’s
bankruptcy statute than an Australian court will. That favours New Zealand.
(f) Whether a related or similar proceeding has been commenced against the defendant or any other person in a court in Australia
[37] No such proceeding has been identified. This factor would not, however, count against the trustees, even if they had in fact started a concurrent application in Australia against Mr Richards. In cross-border insolvency cases, applications in a number of jurisdictions may be required as relief in each may be available only within that law area. Because of the jurisdiction question I have discussed above the trustees could not, for all practical purposes, make any similar application in Australia against Steindle Williams Legal Ltd.
(g)The financial circumstances of the parties so far as the New Zealand court is aware of them.
[38] Mr Richards is a bankrupt and apparently receiving Australian superannuation. He puts that up as an argument against his being able to participate in New Zealand because he cannot travel here. That is not a barrier to his taking an effective part. He is entitled to take part in the proceeding remotely, just as he was entitled to take part in the present application remotely.22 The trustees’ application will not require a hearing to decide contested factual matters. There is no significant disadvantage to his taking part remotely if he does not wish to come to New Zealand
for the hearing.
21 T J De Boer, “Facultative Choice of Law: the Procedural Status of Choice-of-law, Rules and
Foreign Law” (1996) 257 Rec d Cours 222 at 305.
22 Trans-Tasman Proceedings Act, ss 37-43.
(h) Any other relevant matters.
[39] There are no other relevant factors requiring consideration.
[40] Overall New Zealand is the obvious and natural forum for the trustees’ application to seek assistance in New Zealand under the letter of request, especially given that information and documents are apparently held by a body that carries on business mainly in New Zealand and has its place of business here.
Result
[41] Mr Richards’ stay application is dismissed because it fails under both limbs of s 24(1).
[42] I order Mr Richards to pay the trustees costs under category 2 and disbursements on the stay application. Counsel should write to Mr Richards setting out proposed costs. If the parties cannot agree costs, the trustees may file and serve a memorandum. Mr Richards’ memorandum in response should be filed and served within five working days of the trustees’.
[43] An associate judge does not have jurisdiction to hear an application under s 8 of the Insolvency (Cross Border) Act. An associate judge’s court jurisdiction under the act is limited to the Model Law in Schedule 1.23 A justice will hear the substantive application.
[44] I give these directions:
(a) Mr Richards is to file and serve a notice of opposition to the trustees’ application and any further affidavits by Friday 24 June 2017. If Mr Richards intends to rely on any affidavits that he has already filed,
he should identify them in his notice of opposition.
23 Judicature Act 1908, s 26I(2)(l).
(b)Steindle Williams Legal Ltd is to file and serve an affidavit setting out on what matters (if any) it acted for Mr Richards or any entities associated with Mr Richards and whether it holds any documents relating to those matters. The trustees shall pay Steindle Williams Legal Ltd its actual and reasonable costs in preparing, filing and serving that affidavit.
(c) The trustees are to file and serve any affidavits in reply by 15 July
2016.
(d)The trustees are to file and serve their submissions, copies of authorities relied on and a casebook by 8 September 2016. The casebook may be served on Mr Richards by posting it by ordinary mail addressed to his Australian address for service no later than
5 September 2016.
(e) Mr Richards is to file and serve his submissions and copies of authorities he relies on by 15 September 2016. At the same time he should advise the Registrar whether he intends to appear at the hearing in person or will take part remotely.
(f) If Steindle Williams Legal Ltd intends to appear at the hearing, it is to file and serve any submissions by 15 September 2016.
(g) The trustees’ application will be heard for a half day in the morning of
22 September 2016.
(h) Leave is reserved to apply for further directions.
………………………............
Associate Judge R M Bell
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