REASONS FOR JUDGMENT (No 5) (Application for letter of request)
1 Section 581 of the Corporations Act 2001 (Cth) (the Act) provides in subs (4) that the Court may request a court of a country other than Australia that has jurisdiction in external administration matters, to act in aid of, and be auxiliary to, it (the Court) in an external administration matter. The expression "external administration matter" is defined in s 580 to mean, inter alia, the winding up, under Ch 5 of the Act, of a company.
2 The defendant, Newpage Pty Ltd (Newpage), is a "company" because it is a company registered under the Act (see the definition of "company" in s 9 of the Act). It is being wound up pursuant to an order for winding up that was made in this proceeding on 25 January 2007. Therefore, the Court's power under s 581(4) is enlivened.
3 By interlocutory process filed in Court on 21 May 2007, the applicant, Mr Hamilton in his capacity as Official Liquidator of Newpage, sought the issue of a Letter of Request addressed to the High Court of Malaya requesting that Court to act in aid of, and to be auxiliary to, this Court in respect of the winding up of Newpage. Specifically, Mr Hamilton's objective was to obtain orders from the High Court of Malaya for the purpose of conducting an examination of Muhamad Sobri Bin Din and Sorahimi Bin Sidek who are residents of Malaysia.
4 On 20 June 2007 I made the orders sought for the following reasons.
5 Mr Hamilton had already conducted certain examinations pursuant to ss 596A and 596B of the Act. On 4 April 2007 in Melbourne, he conducted examinations of each of Mr Yii and Mr Parsons, who are respondents to other interlocutory processes filed in this proceeding. Mr Yii is the sole director of Newpage. Those examinations, and the examinations of other persons, are continuing.
6 Documents obtained by Mr Hamilton in the course of his inquiries refer to a transfer of $100,000.00 to KRI Development Sdn Bhd (KRI) from Newpage on 25 January 2006 and a "Put Option Agreement" between Mr Yii and KRI, executed by KRI under its common seal and witnessed by "Muhamad Sobri Din". A Deed of Variation was signed on behalf of KRI by Sorahimi Bin Sidek. Muhumad Sobri Bin Din and Sorahimi Bin Sidek are directors of KRI, a company formed and registered in Malaysia. Mr Hamilton states that "[w]ere each of Muhumad Sobri Bin Din and Sorahimi Bin Sidek in Australia, I would wish to examine each of them under Section 596B of the Corporations Act" regarding their dealings with Newpage.
7 Section 249 of the Companies Act 1965 (Malaysia) provides, relevantly, for a procedure for the summoning of any person whom the Court deems capable of giving information concerning the promotion, formation, trade dealings, affairs or property of a company. This section is similar to s 596B of the Act which permits this Court to summon a person for examination about a corporation's "examinable affairs" if the Court is satisfied that the person has taken part or been concerned in examinable affairs of the corporation and has been or may have been, guilty of misconduct in relation to the corporation, or may be able to give information about "examinable affairs" of the corporation. The term "examinable affairs" is defined in s 9 of the Act to include "the promotion, formation, management, administration or winding up of the corporation".
8 The High Court of Malaya has jurisdiction in the winding up of companies formed and incorporated in Malaysia under the Companies Act 1965 (Malaysia): see s 4(1) of that Act.
9 It was my view that this Court should issue a Letter of Request to the High Court of Malaya as sought by Mr Hamilton because the two individuals mentioned may be able to give information about the examinable affairs of Newpage, and this Court would have summoned them for examination about Newpage's examinable affairs if they had resided in Australia.
10 The Letter of Request was framed so as to ask the High Court of Malaya to make only orders that it would be open:
· to this Court to make if the two individuals were within the territorial jurisdiction of this Court; and
· to the High Court of Malaya to make if Newpage had been a company formed and incorporated under the Companies Act 1965 (Malaysia) and was being wound up by that Court under that Act.
A limitation of the former kind (as well as of the latter) is a common feature of letters of request issued by overseas courts to Australian courts and vice versa. The reason why I thought a constraint of the former kind appropriate is one of broad principle and of general application. It is that it is conceivable that it may be open to the courts of some foreign countries (I have no particular countries in mind and certainly do not have Malaysia in mind) to make orders that would not be acceptable in Australia in the light of Australian public and legislative policy.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.