Consideration and determination: Examination summonses
- The Applicants do not dispute that the criteria for the issue of the examination summonses under s 596A of the Corporations Act were satisfied.
- The Applicants do not contend that the proposed subject matters for the examinations identified in the Respondents' correspondence with ASIC are outside the scope of the examinable affairs of Jewel Holdings.
- The Applicants contend that the examination summonses and production orders are an abuse of process because the Court's power to issue them has been invoked for an illegitimate purpose and the examination summonses and production orders are unjustifiably oppressive. They submit that:
"The processes were issued, it appears, in reaction to Mr Matta being given notice of his liability to repay substantial amounts owing to the companies and a likely insolvent trading claim. The matters upon which the [Respondents] seek to examine have never been raised with the Applicants as matters that warrant investigation and there is a serious question as to whether the concerns raised are a recent invention. Critically, compliance with the processes will result in a substantial and costly intrusion into the external administration, particularly in circumstances where the Liquidators are unfunded. The processes appear to have been issued predominantly for the purpose of attempting to secure a commercial leverage against the Applicants in relation to the pending claims and investigations."
- The Applicants submit that the Respondents' purpose of creating a "bargaining chip" with the Liquidators in relation to the "looming claims and investigations" that the Respondents face "must be regarded as one prevailing over any subsidiary intention (to the extent that one exists) in seeking, by the issuance of the processes, to advance a legitimate public interest in the company's external administration."
- The purpose for which the Respondents applied for the examination summonses is a question of fact. For the reasons that follow, the Applicants have failed to discharge their onus of establishing on the balance of probabilities that the Respondents' predominant purpose was to attempt to secure commercial leverage against the Applicants in relation to the Liquidators' ongoing investigations and potential claims against Mr Matta.
- No complaint was raised with the Administrators or Liquidators concerning the sale process before the Respondents applied to ASIC for eligible applicant status and applied to the Court for the issue of the examination summonses. Contrary to the Applicants' submissions and Mr Dampney's contentions, that does not support an inference that the concerns about the sale process are a "recent invention" reacting to the Liquidators' letter of 10 July 2020 and that the summonses have been issued for the predominant purpose of attempting to secure some commercial leverage against the Liquidators.
- The complaint about the sale process as set out in paragraph 39 of Banton Group's letter to ASIC dated 20 November 2020 relies heavily on the existence of the BEC offer at the time that the Administrators were negotiating exclusively with BJCK, without BJCK having obtained clearance from the ACCC, and the difference between the range of offers made by BEC and the lower price for which the Administrators later sold the business to Chef Fresh Pty Ltd. As referred to at [97] above, there is no evidence about when Mr Matta became aware of the amounts offered by BEC. The evidence does establish that the Administrators kept the offers confidential during the sale process and continued to do so at the second creditors' meeting after the sale process had concluded and in the report subsequently issued by the Liquidators on 24 August 2020. It would be mere conjecture to infer that the steps taken by the Respondents from November 2020 to apply for eligible applicant status and for the issue of examination summonses were a reaction to the Liquidators' letter of 10 July 2020, as opposed to a reaction to Mr Matta becoming aware of the prices offered by BEC: Bradshaw v McEwans Pty Ltd (1954) 217 ALR 1 at 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
- As the Respondents submitted, they were not obliged to raise their complaints or concerns about the sale process with the Applicants informally before applying for eligible applicant status and applying for the issue of examination summonses. Contrary to the Applicants' submissions, the absence of any such informal approach by the Respondents does not support an inference that the concerns about the sale process articulated in paragraph 39 of the 20 November 2020 letter to ASIC are not genuinely held by the Respondents or that the Respondents' predominant purpose in applying for the summonses was not to investigate potential claims against the Administrators in relation to the sale process.
- That is particularly so in circumstances where, as I have mentioned above, there is no evidence that the Respondents had all of the information giving rise to their concerns before the Administrators concluded the sale to Chef Fresh Pty Ltd. Thus, there is no evidence supporting Mr Dampney's contention that, if the Respondents' concerns were genuinely held, they would have made a complaint to the Administrators during the sale process at a time when a different course could potentially have been taken by the Administrators in response to the complaints.
- Nor is there any evidence that anything could have been achieved by the Respondents putting to the Applicants after the sale process had concluded that (to adopt the terms in the Respondents' submissions): "We think you stuffed up the sales process, please comment". Mr Matta was not challenged in cross-examination about his evidence he understood that the Administrators had simply dismissed concerns that had been raised by several creditors about the sale process at the second creditors' meeting on 25 May 2020: see [105] above. Mr Dampney's affidavits are silent about how the Applicants would have responded to any complaints or questions from the Respondents during or after the sale process at any time before they applied for eligible applicant status and for the issue of the examination summonses.
- The Respondents' concerns about the sale process are not speculative, far-fetched or misconceived, to use the language of the Full Court of the Federal Court in Kimberley Diamonds. On the contrary, as the Respondents submitted, their concerns raise matters that are prima facie worthy of investigation, including why the Administrators apparently did not anticipate potential opposition from the ACCC to the proposed sale to BJCK, why the Administrators entered into an exclusivity period with BJCK notwithstanding the risk of ACCC opposition (which then precluded the Administrators from immediately engaging with BEC's increased offer), and why the Administrators apparently did not pursue BEC's offer after the sale to BJCK fell through.
- I reject the Applicants' submission that the Respondents are "seeking to have it both ways" by suggesting that the Administrators should have rejected the BJCK offer yet taken advantage of the BEC offer that only rose to the level that it did in order to compete with the BJCK offer. The submission misstates the substance of the Respondents' concerns, which I have summarised above.
- The exploration of the Respondents' concerns in public examinations falls squarely within the purpose of s 596A as described by Edelman and Steward JJ in Walton at [170]. Public examinations about these matters, unlike responses by the Administrators to informal inquiries in private correspondence, will serve (rather than contradict or stultify) the public interest in the administration or enforcement of the law concerning the Jewel Group and its officers in public dealings in the manner explained by their Honours at [175] of their joint judgment in Walton. Private correspondence about these matters would be no substitute for answers to questions on oath or affirmation in a public examination: Re Normans Wines Ltd (receivers and managers appointed) (in liq) (2004) 88 SASR 541; [2004] SASC 171 at [50] (Mulligan J, Vanstone J agreeing).
- Contrary to the Applicants' submissions, it matters not that Mr Dampney has proffered a detailed explanation of the sale process in his affidavits read in these proceedings. It is not open to the Applicants to attempt to pre-empt public examinations concerning the sale process by adducing evidence that they contend covers the field and demonstrates that there is nothing more to examine: see [122] above.
- I reject the Applicants' submission that "complaint about sale at an undervalue sits ill in the mouth of the [Respondents], given that Mr Matta had himself offered a significantly lower sum that the eventual price to take over the businesses." As the Respondents submitted, neither Mr Matta's assessment of the price achievable for the Jewel Group business in February 2019, nor his offer in May 2019, has any bearing on the Respondents' concerns about how the business came to be sold for $25.5 million in March 2020 notwithstanding that BEC had offered $42 million in July 2019. Mr Matta's assessment in February 2019 was demonstrated to be wrong by the higher offers that the Administrator's subsequently received, including the offer from BEC. I accept Mr Matta's evidence that his May 2019 offer represented what he could afford at the time, rather than his assessment of the value of the business. That evidence is broadly consistent with the evidence elicited from Mr Matta in cross-examination that payment of the $8.176 million demanded by the Liquidators in July 2020 would have exhausted all of his assets. It is not necessary to address the parties' competing contentions about what (if anything) Mr Matta's offer entailed in relation to the refinancing of the Jewel Group's debts to CBA.
- In relation to the Respondents' stated purpose of investigating potential claims of Jewel Holdings against the Applicants for their failure to investigate and prosecute potential claims against CBA, the Applicants submitted that a serious question arises about the genuineness of the potential claims against CBA described in Banton Group's letter to ASIC dated 20 November 2020 because:
1. the matters described in that letter arise from issues particularly within the knowledge of the Respondents;
2. the Administrators had detailed discussions with Mr Matta at the time of their appointment in relation to the arrangements with CBA, and Mr Matta did not inform them about potential claims against CBA; and
3. the Respondents have declined to offer any funding to the Liquidators to investigate potential claims against CBA now.
- The Applicants' criticisms of Mr Matta for failing to inform them about potential claims against CBA are not without force. However, it does not necessarily follow from the fact that Mr Matta's evidence would be necessary for any ultimate prosecution of the potential claims against CBA that the existence of the potential claims as a subject worthy of investigation was not apparent from the documents available to the Administrators. As the Respondents submitted and as senior counsel for the Applicants accepted, the description of the potential claims against CBA in Banton Group's 20 November 2020 letter was based on documents referred to in that letter that form part of the books and records of the Jewel Group, including the facility agreements with CBA and email correspondence with CBA. Accordingly, there is a question whether the Administrators should have identified and pursued claims against CBA on the basis of those documents and approached Mr Matta for such further information or evidence as they may have required, as Mr Matta contends.
- The examinations may reveal that the Administrators and Liquidators could not have identified potential claims against CBA based on the documents available to them and without further information from Mr Matta, as the Applicants contend. It may even be that this emerges at an early stage of the examination and the Registrar's control over the examination precludes the Respondents from questioning the Applicants about the topic further thereafter. However, I do not consider that this possibility renders the Respondents' complaint about the Applicants' failure to take steps in relation to potential claims against CBA speculative, far-fetched or misconceived, or renders the issue of the examination summons an abuse of process: see [122] above.
- It is not to the point that the Liquidators are now unfunded. The question is whether the Administrators should have taken the steps referred to at [143] above at a time when they did have funding. As the Respondents submitted, Mr Dampney has given the evidence referred to at [99] above that he would have investigated the potential claims against CBA if they had been brought to his attention. That evidence is inconsistent with the Applicants' submission that lack of funding was self-evidently an obstacle to the Administrators investigating the potential claims at any time (being one of the matters relied on in support of the Applicants' contention that the Respondents' purpose in applying for the examination summons cannot be to investigate claims against the Administrators in relation to their alleged failure to investigate claims against CBA).
- The Applicants also submitted that the examinations lack utility - demonstrating both illegitimate purpose and oppression - because the Liquidators have no funding now to investigate or pursue potential claims against CBA if the examinations reveal that they should have done so. The Applicants emphasise that the Respondents have declined to provide any funding to the Liquidators for that purpose.
- I reject that submission. The examinations may reveal the basis of a claim by the Respondents to remove the Liquidators or to appoint a special purpose liquidator, as referred to below. There is no basis to conclude that, if new liquidators or a special purpose liquidator were to be appointed, they would not be able to raise funds to investigate and pursue potential claims against CBA on behalf of the Jewel Group. The Respondents' concern that the Liquidators may have a conflict of interest in pursuing CBA, which appointed them as Administrators and provided funding for the administration, would not apply to new liquidators or a special purpose liquidator.
- Consistently with Mr Matta's evidence, the Respondents submitted that they do not seek to gather information through the examinations for the purpose of pursing potential claims against CBA. Rather, they seek to investigate potential claims against the Applicants for their alleged failure to identify and pursue such claims against CBA on behalf of Jewel Holdings and other entities within the Jewel Group.
- The Applicants seized on this as a concession or admission by the Respondents. The Applicants submitted that this demonstrates that Mr Matta's stated purpose is not the true purpose for which the Respondents applied for the examination summonses. The Applicants submitted that the potential claims against CBA are not time barred and could be pursued by Mr Matta now on behalf of the Jewel Group entities, subject to first obtaining leave under s 237 of the Corporations Act. If successful, the Jewel Group entities would recover the full amount of loss or damage caused by CBA's alleged unconscionable conduct. By contrast, if Mr Matta were to sue the Applicants (on behalf of Jewel Group entities, with leave under s 237 of the Corporations Act) to recover loss allegedly caused by their failure to take steps to prosecute claims against CBA, the claim would be for the value of the Jewel Group's opportunity to sue CBA. The Applicants submitted that no such opportunity has been lost because the limitation periods applicable to the potential claims against CBA have not yet expired.
- Senior counsel for the Applicants submitted that it would be therefore negligent for any solicitor to advise the Respondents to pursue the Applicants rather than to pursue the claims against CBA. It was submitted that this demonstrated that the potential cause of action against the Applicants is "farcical and not genuine" and that the investigation of that asserted cause of action therefore forms no part of the true purpose of the Respondents in applying for the examination summonses.
- The Respondents submitted that whether or not it is still open to the Jewel Group to pursue CBA will depend very much on what the Administrators did and said in paying the proceeds of sale of the Jewel Group business to CBA. Putting that issue to one side, it is my respectful opinion that the Applicants' submissions referred to immediately above overstate the position by assuming that the Respondents' potential action against them as former Administrators and Liquidators is limited to a claim for damages or compensation. The Applicants submitted that Mr Matta's reference in paragraph 8 of his affidavit to "potential claims" that Jewel Holdings might have against them for their alleged failure to investigate and pursue claims against CBA on behalf of the Jewel Group plainly means "to sue us for money".
- That is an unduly narrow reading of the words "potential claims", in my opinion. The words "potential claim" are plainly sufficiently wide to include matters such as a claim for the appointment of a special purpose liquidator, as the Respondents submitted, or a claim for an order under s 90-15 of the Insolvency Practice Schedule removing the Liquidators from office and appointing different liquidators to complete the winding up, including dealing with CBA's proof of debt and any set off under s 553C of the Corporations Act arising from their investigation of the potential claims of the Jewel Group against CBA.
- As the Respondents submitted, paragraph 2 of Banton Group's 20 November 2020 letter to ASIC described the proposed examinations as being for the purpose investigating and prosecuting potential claims against CBA "with a view to determining whether any further steps or proceedings ought to be taken against the Administrators or Liquidators, including for compensation" (my emphasis). There is no evidence that the Respondents subsequently narrowed the scope of the potential steps contemplated against the Applicants to potential claims for damages or compensation. That is to say, there is no evidence to support the Applicants' narrow reading of paragraph 8 of Mr Matta's affidavit referred to above.
- For those reasons, I reject the Applicants' submission that any claim against them would depend on the Respondents establishing good claims against CBA and the loss of the opportunity for the Jewel Group to pursue such claims against CBA. It follows that I also reject the Applicants' submission that the Respondents' statement that they do not seek to gather information through the examinations for the purpose of pursing potential claims against CBA indicates that the Respondents do not genuinely intend to pursue potential claims against the Applicants for their alleged failure to investigate the CBA issues.
- In any event, an applicant for an examination summons is not required to demonstrate a viable cause of action, let alone that the potential cause of action against a proposed examinee is the best out of alternative potential actions: see [122] above.
- The Applicants also submitted that, by Mr Matta's own assertion in Mr Cruikshank's letter of 22 May 2019 referred to at [32] above, any causes of action against CBA lie with the Matta Family Trust and not with Jewel Group entities in their own right. I reject that submission. As the Respondents submitted, the 22 May 2019 letter is referring only to any causes of action which form part of the property of the Trust. The causes of action described in paragraph 42 of Banton Group's letter to ASIC dated 20 November 2020 are claims of Jewel Group entities as opposed to the Matta Family Trust. The alleged breach of the "Additional Funding Promise" relates to losses said to have been suffered by Jewel Group entities as a result of having to deploy cash flow to fund product launches, as referred to at [80] above. Senior counsel for the Applicants accepted that this potential claim against CBA was a claim of the Jewel Group entities in their own right rather than a chose of action forming part of the property of the Matta Family Trust. The potential claims against CBA relating to the "CGT Promise" and the rejection of offers for 247 King St, Mascot referred to at [81] and [82] above are claims for losses allegedly suffered by the Jewel Group as a result of being unable to refinance with another lender in circumstances where CBA was declining to renew the facilities.
- I accept the Respondents' submission that the notion that their predominant purpose is to secure commercial leverage against the Liquidators in relation to their ongoing investigations and potential claims against Mr Matta is fanciful, having regard to the following matters:
1. Mr Matta has never admitted that the Liquidators' claims against him have any merit;
2. assuming for present purposes that those claims do have merit (which Mr Matta denies), the Applicants have not identified any basis for inferring that Mr Matta is assuming that the Liquidators would make a deliberate decision, contrary to their fiduciary and statutory duties, to accede to any "commercial leverage" brought to bear by Mr Matta through the public examinations by sacrificing a potential asset of the Jewel Group for the Liquidators' own personal benefit; and
3. almost two years after Mr Matta became aware of the potential claims against him through the Liquidators' letter of 10 July 2020, Mr Matta is seeking to proceed with public examinations notwithstanding that the Liquidators have not yet been in a position to pursue any claims against him.
- In light of Mr Dampney's evidence that the Liquidators are continuing to explore funding options to pursue claims against Mr Matta, the third element of the Respondents' submission referred to immediately above carries little weight.
- However, the second element has particular force. As the Respondents submitted, the statutory role of the Liquidators takes the matter out of the usual case where a purpose of exerting commercial pressure may be inferred. That is because, in the usual case, litigants may reasonably make a commercial decision that it is in their best interests to discontinue other proceedings in response to pressure being brought to bear against them personally. By way of example, the examination summonses in Newheadspace were found to have been issued on the application of the liquidator to officers of National Rugby League Limited (NRL) to give effect to the purpose of others (legal representatives and a litigation funder) of exerting pressure on NRL through the public examinations to pay various claims asserted by the company in liquidation against NRL. As the Respondents submitted, it is not open to the Liquidators to make a choice to abandon pursuit of their claims against Mr Matta (or their attempts to obtain funding to pursue those claims) in return for something that might be offered by Mr Matta in connection with the public examinations or any claims pursued against the Applicants following the public examinations. A person in Mr Matta's position could not reasonably expect the Applicants to make such a choice and there is no basis for inferring that Mr Matta holds any such expectation. The existence of such an expectation in the mind of Mr Matta is central to the Applicants' allegations that he applied for the examination summonses in order to exert commercial pressure against the Liquidators.
- Moreover, as the Respondents submitted, Mr Matta is facing a $26 million personal liability on his guarantee and has the prospect of reducing that liability significantly through any successful claim against the Applicants on behalf of the Jewel Group in relation to the sale process or if the potential claims against CBA are investigated by new liquidators or special purpose liquidators and successfully pursued on behalf of the Jewel Group so as to reduce its net debts owing to CBA. That would be of benefit to Mr Matta, irrespective of whether the Liquidators pursue the matters in their 10 July 2020 letter and irrespective of whether Mr Matta may have been "highly concerned", "concerned to some degree" or "unconcerned" about the 10 July 2020 letter. That points strongly to the Respondents' predominant purpose being exactly as described in Mr Matta's affidavit referred to at [101] above - to investigate potential claims against the Applicants in relation to the sale process and their failure to investigate and pursue the potential claims against CBA.
- The Applicants placed much weight on Mr Matta's change of solicitors at some time in the months leading up to Banton Group's letter to ASIC of 20 November 2020, together with Mr Matta's failure to provide the response that Mr Cruikshank had foreshadowed to the Liquidator's 10 July 2020 letter, as indicating a change in Mr Matta's strategy vis-à-vis the Liquidators and supporting an inference that his predominant purpose in applying for eligible applicant status and in applying for the issue of the examination summonses was to obtain commercial leverage against the Liquidators.
- I reject that submission. There is some force in the Applicants' criticisms of Mr Matta's failure to provide any response to the Liquidators' letter of 10 July 2020, despite a response having been promised by his former solicitor. However, as the Respondents submitted, the change of solicitors and the failure to respond to the 10 July 2020 letter do not support a finding on the balance of probabilities that the Respondents' predominant purpose in applying for the examination summonses is to obtain some sort of "bargaining chip" with the Liquidators for all of the reasons above.
- Whilst I have rejected Mr Matta's evidence that he changed solicitors for no reason (see [74] above), his engagement of Banton Group does not support an inference that this was part of a change of strategy which involved applying for the examination summonses for the predominant purpose of obtaining commercial leverage against the Liquidators in relation to the matters in their 10 July 2020 letter. The evidence does not support any inference other than that, from about September 2020, Mr Matta had greater confidence in Banton Group's ability to represent his interests in relation to the external administration of the Jewel Group going forward than he had in Mr Cruikshank at that time. The Court will not engage in speculation about the reasons for that state of affairs.
- As referred to at [111] above, Mr Dampney stated in his affidavit that, any requirement for the Liquidators to attend extensive examinations will adversely impact their ability to continue to progress the Jewel Group's liquidation. That statement, being a bare assertion, was admitted into evidence subject to an order under s 136 of the Evidence Act 1995 (NSW) limiting its use to evidence of Mr Dampney's contention. The Liquidators' attendance is expected to be required for approximately one day each, as referred to at [112] above. There is no evidence to support to Mr Dampney's assertion that attendance by each Liquidator for approximately one day, and associated preparation, would adversely impact their ability to continue to progress the winding up of the Jewel Group. Accordingly, the Applicants have not demonstrated that the proposed examinations would involve a substantial intrusion into the liquidation.
- The Applicants' submissions emphasised that the Liquidators are presently unfunded and that the Respondents have not offered to pay their remuneration and costs in relation to their attendance at and preparation for the public examinations. I accept the Applicants' submissions that the Court's power to make costs orders in relation to public examinations is not limited to s 597B of the Corporations Act and that the Court may exercise its inherent jurisdiction to prevent abuse of its process by imposing conditions requiring the payment of an examinee's costs if necessary to prevent the summons from operating in an unjustifiably oppressive manner: Re Equiticorp Finance Ltd; Ex parte Brock (No. 2) (1992) 27 NSWLR 391 (Brock No. 2) at 396-397 (Young J, as his Honour then was); Re Total Entity Pty Ltd (in liq) (2003) 47 ACSR 577; [2003] NSWSC 924 (Total Entity) at [26] (Barrett J, as his Honour then was).
- However, I do not think that justice requires such an order in this case where the examinees are officers and a former officer of the corporation, there is a public interest in the examinations for the reasons explained by Edelman and Steward JJ in Walton at [170] and [175], and it is foreshadowed that the examinations require about one day for each examinee. The mere fact that the Liquidators are unfunded does not mean that it is oppressive for them to be required to bear their own costs of complying with the examination summonses issued under s 596A. The Applicants' submissions emphasised that, in Kimberley Diamonds, the applicant for the examination summons had offered to pay the liquidator's costs of the examination. No such offer has been made by the Respondents in this case, as I have already mentioned. However, the offer was not decisive in Kimberley Diamonds. The basis of the Full Court's decision that the examination summons was not unjustifiably oppressive was that the liquidator had led no evidence that was capable of supporting a finding that the proposed examination would be significantly burdensome, costly or intrusive to him or his administration of the winding up (at [88]-[89] of the judgment, set out at [124] above). As I have already mentioned, the Applicants in the present case have led no evidence capable of supporting such a finding.
- In my opinion, the circumstances of this case are covered by the "general principle" articulated by Young J (as his Honour then was) in Brock No. 2 that (at 393): "a person who is required by law to come before a court and give evidence has an obligation as a citizen to comply, and is not entitled to any compensation at all." As the Respondents submitted and as the Full Court of the Federal Court emphasised in Kimberley Diamonds, current and former administrators and liquidators are in no different position than any other current or former officer liable to be summoned for examination under s 596A: see [116]-[117] above. The legal obligation imposed on administrators, liquidators and other officers and former officers of corporations under s 596A reflects the legislative intention underlying Part 5.9 of the Corporations Act that "directors and those engaged in the management of companies should be accountable and, at least in some cases, publicly accountable, for their conduct": New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 at 619 (Hayne J), citied with approval in Walton at [113] (Gageler J) and at [189] (Edelman and Steward JJ).
- Although this has not been determinative, it is appropriate to note that the Applicants have incurred the costs of a two day hearing during which, in support of their application to set aside the examination summonses as an abuse of process on grounds that included oppression, they sought to pre-empt the outcome of the examinations by putting forward Mr Dampney's evidence in response to the substance of the Respondents' complaints that are to be the subject of the examinations. That is both contrary to the authorities referred to at [122] above and difficult to reconcile with the Applicants' contention that the time and costs involved in each of the Liquidators attending a public examination for approximately one day would be so oppressive as to constitute an abuse of process.
- I will address the costs of compliance with the orders for production separately below.
- Finally, I reject the Applicants' submission that the examination summons issued to Mr Parbery should be discharged on the basis that it is so lacking in utility that it reflects an illegitimate purpose or is oppressive. The Applicants submit that the proposed examination lacks utility because Mr Parbery ceased being an administrator from 15 May 2020 and recorded only 25 hours of work in relation to the Jewel Group administration. The Applicants relied on the alleged lack of utility as supporting an inference that the Respondents had applied for the examination summonses for the predominant purpose of obtaining commercial leverage against the Liquidators in their pending investigations and potential claims against Mr Matta. I accept the Respondents' submissions that the limited work performed by Mr Parbery sheds no light on the appropriateness of any work done by him in relation to the sale process or the question whether the Administrators should have investigated and pursued potential claims against CBA on behalf of the Jewel Group. The limited work done by Mr Parbery may raise a question about whether his duties required him to do more.
- For the foregoing reasons, the application to discharge the examination summonses as an abuse of process will be dismissed.