Australian Securities & Investments Commission v Forestview Nominees Pty Ltd [2006] FCA 1628 | Case summary

REASONS FOR JUDGMENT ON APPLICATION TO ADJOURN HEARING OF WINDING UP APPLICATION 1 An application for the winding up of Forestview Nominees, Pty Ltd (Receiver and Manager appointed) (Forestview), was filed by the Australian Securities and Investments Commission (ASIC) on 28 June 2006. Directions were given on 11 August 2006 for the filing of affidavits in opposition to the application by 18 August. The application was set down for hearing on 31 August 2006 on the basis that if leave to proceed were then granted to ASIC, consideration would be given to whether to proceed immediately with the substantive application. On 31 August 2006, I gave liberty to Mr Carey, a director of Forestview, to defend the application in the name of the company. 2 Directions were made for the production of a list of documents by ASIC for a process by which a list of relevant documents might be agreed in a conference before a Registrar and for directions to be given by a Registrar. Affidavits in opposition were to be filed by 21 September 2006. On 27 September 2006 the solicitors then on the record for Forestview, withdrew from the record. On 29 September 2006 further directions were given, listing the matter for hearing on 23 October 2006. On 23 October 2006 the application was further adjourned to 25 October 2006. 3 Forestview was directed to file any affidavits in support of an adjournment application it wished to make, which was related to an application for funding. By the term "application for funding" in this context I refer to what was ultimately treated as an appeal against the refusal of the receivers to make available to Forestview funds, from company assets, for the purpose of defending the winding up application. 4 The matter was adjourned to 30 October 2006 and Ms Colson, on behalf of Forestview, then made submissions on the substantive question of the receiver's decision refusing funding. Judgment was reserved to 8 November 2006. Because of the way in which the matter had arisen in the context of like arguments concerning Lanepoint Enterprises Pty Ltd and Bowesco Pty Ltd (Receivers and Managers Appointed), the receivers for Forestview had not been represented and were given the opportunity to make submissions and file any affidavits in opposition to the funding submission. 5 On 30 October 2006 the application to wind up the company was adjourned to today. Following a request by Forestview's new solicitors to file further evidence in answer to affidavit evidence filed by the Forestview receivers, the judgment on the question of their decision to refuse funding was further reserved to 15 November 2006. On 15 November 2006 judgment was given refusing Forestview's appeal against the receiver's decision to decline funding: Australian Securities & Investments Commission v Forestview Nominees Pty Ltd (Receivers and Managers Appointed) [2006] FCA 1530. 6 The winding up application has come on as previously fixed for hearing today. Forestview applies to adjourn the proceeding. It proposes orders in the following terms: '1. That the hearing of the Applicant's Application to wind up the Respondent in the within action ("the Application") listed to be heard on 20 November 2006 be vacated; 2. That the hearing of the Application and the Applicant's application to amend the Originating Process, as set out in the Applicant's Notice of Motion dated 11 October 2006 and filed 12 October 2006 ("the Application to Amend") be adjourned to a directions hearing on a date to be fixed following the Respondent being granted access to documents referred to in the Affidavit of John Hammond sworn 17 November 2006, filed herewith.' 7 Forestview relies upon the affidavit of its solicitor, Mr Hammond, sworn 17 November 2006. He says in that affidavit that he has been engaged to act and advise in relation to the vacation of the application to wind up and the application to amend the originating process. He has considered the application and says that in order to provide evidence of solvency the following is critical: (a) updated financial accounts relating to the relevant entities; (b) a valuation of the property owned by Forestview; (c) an independent expert report on solvency. 8 He says in the affidavit that he is currently taking instructions with a view to engaging a suitable valuer and a suitable expert. He refers to an exchange of correspondence relating to requests for documents, including letters dated 18 September 2006 from ASIC to Clavey Legal; a letter of 25 October 2006 from Mr Carey; and a letter of 16 November 2006 from Mr Carey, both to ASIC. He says that he is informed by Mr Carey and verily believes that despite the request for documents, only a limited number are available, which he is waiting to inspect. 9 In relation to the funding application Mr Hammond says that on 23 and 25 October 2006 Forestview applied to adjourn the application on grounds including the need for funding. The adjournment application was dealt with as a funding application. The funding was expected to cover legal costs of instructing solicitors and counsel. He says that in anticipation of the receipt of funding pursuant to the funding application and pending its outcome, Forestview was unable to seek appropriate legal advice. The funding application was dismissed on 15 November 2006. He says that since that date Forestview has arranged alternate sources of funding within a limited period of time. He swears the affidavit in support of the application on the grounds that: (a) documents necessary for the hearing have not been made available; (b) the respondent has not been able to proceed with preparation in opposing the application pending the outcome of the funding application. 10 The application for an adjournment is opposed by ASIC substantially on the basis that the hearing of the application has been repeatedly adjourned and that no justification is shown for the matter not now proceeding. I note in that context, of course, that there is a time limit, subject to extension by the Court, for dealing with winding up applications, such as the present, brought on the ground of insolvency where a receiver has been appointed. 11 There are really two issues raised in the adjournment application. The first is as to access to documents and the second is as to funding. So far as the access to documents is concerned, I set up a mechanism by orders that I made some months ago under which a consensual process was provided for and absent agreement a facility for the Registrar to make directions. An order was also made for liberty to apply. If there had been a dispute or some alleged obstruction or failure to be forthcoming on the part of ASIC in producing necessary documents, then that was a matter which could have been the subject of an application for directions by the Registrar and, alternatively, to a Judge. 12 So far as funding is concerned, Mr Hammond's instructions do not indicate that in fact there is any source of funding available beyond that available for his instructions for the purpose of seeking the adjournment. If such funding were available then, of course, there would have been no justification for putting everything on hold pending the uncertain outcome of the appeal against the receiver's decision. In my view, no proper justification has been shown for the adjournment and the adjournment application will be refused. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Australian Securities & Investments Commission v Forestview Nominees Pty Ltd

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