Elderslie Finance Corporation Ltd v Newpage Pty Ltd - [2015] FCA 849 - FCA 2015 case summary — Zoe

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Elderslie Finance Corporation Ltd v Newpage Pty Ltd

[2015] FCA 849

Federal Court of Australia|2015-08-14|Before: Re Hugh J, Middleton J

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Source facts

Court

Federal Court of Australia

Decision date

2015-08-14

Before

Re Hugh J, Middleton J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Pursuant to section 597(9) of the Corporations Act 2001 (Cth) the proper officer of the Deutsche Bank (Switzerland) Ltd of Place des Bergues, 3, Geneva, Switzerland ('Deutsche Bank') produce or cause to be produced to the Federal Court of Australia, Melbourne Registry, Level 7, 305 William Street, copies of the following documents by no later than 10.00am, on 14 October 2015: (a) Documents identifying the account holders, contact details, contact persons, addresses and signatories, of each of the accounts listed in Schedule 1, including copies of the signatures of each of the signatories to those accounts. (b) Documents identifying any accounts held by them in the name of or to the benefit of the persons or entities in Schedule 2, including documents identifying the account numbers, account names, account holders, contact details, contact persons, addresses and signatories of each such account including copies of the signatures of each of the signatories to those accounts. (c) Statements or other documents recording or evidencing the movement of funds into and out of each of the accounts listed in Schedule 1 and any other accounts held in the name of or to the benefit of any of the persons listed in Schedule 2, for the period 1 January 1997 - 31 December 2003.
The Plaintiffs have leave to uplift, inspect and copy documents produced pursuant to this order.
The Plaintiffs pay Deutsche Bank's reasonable costs of complying with this order.
Pursuant to section 581(4) of the Corporations Act 2001 (Cth), the Court send a letter in the form set out in Schedule 3 to le Tribunal Civil (Tribunal de premiere instance) requesting that court act in aid of Order 1 of this Order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Schedule 1 Lexington Provident Ltd Bank Sal. Oppenheim Jr. & Cie (Schweiz) AG 003125992 "further credit to 69946" CH 6208 2630 7788 8015300

[2]

Schedule 2 • Mr Paul Nicholas Rennie of Moora Farm, Hillston, NSW, 2675 • Rennie Produce (Aust) Pty Ltd (CAN 076 403 542) • Moora Farming Pty Ltd (ACN 078 896 134) • Agren Pty Ltd (ACN 078 896 116) • Agrico Produce Pty Ltd (ACN 080 113 855) • Camira Investments Pty Ltd (ACN 082 355 520) • Lachlan Produce Pty Ltd (ACN 113 179 883) • Lexington Provident Limited (Registered No 41813) Schedule 3 LETTER OF REQUEST Mme Sophie Thorens-Aladjem Presidente Tribunal Civil Tribunal de Premiere Instance Place de Bourg-de-Four 1 Case Postale 3136 1211 Geneva Switzerland Dear Judge, IN THE MATTER OF RENNIE PRODUCE (AUST) PTY LTD (IN LIQUIDATION) ACN: 076 403 542 Case Number: VID 1199/2013 The Federal Court of Australia hereby requests the Tribunal Civil, Tribunal de Premiere Instance, Geneva to assist this court and to act in aid of and to be auxiliary to this court in respect of the winding up of Rennie Produce (Aust) Pty Ltd (In Liquidation) ACN 076 403 542 by making orders, to the extent it has jurisdiction to do so, as follows:

Orders recognising and giving effect to Andrew Reginald Yeo and Gess Michael Rambaldi of Pitcher Partners, Official Liquidators, having been appointed Liquidators of Rennie Produce Aust Pty Ltd on 9 August 2010.
Orders recognising and giving effect to the attached orders to produce documents made by the Federal Court of Australia pursuant to s 597(9) of the Corporations Act 2001 (Cth) on 14 August 2015 that Deutsche Bank (Switzerland) Limited produce the documents specified in the order to produce documents addressed to it.
Such Orders as it would be open to: (a) the Federal Court of Australia to make if the persons referred to in paragraph 2 above had been within the territorial jurisdiction of the Federal Court of Australia; and (b) the Tribunal Civil, Tribunal de Premiere Instance, Geneva to make if Rennie Produce (Aust) Pty Ltd (In Liquidation) had been a company formed and incorporated in Switzerland and was being wound up in Switzerland, by way of assisting the Liquidators in the exercise of their powers and the discharge of their duties and functions as Liquidators.
Such further orders as the Tribunal Civil, Tribunal de Premiere Instance, Geneva may consider just and appropriate. Dated: 14 August 2015

The Hon Justice John Eric Middleton A Judge of the Federal Court of Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1199 of 2013

[6]

Schedule 2 • Mr Paul Nicholas Rennie of Moora Farm, Hillston, NSW, 2675 • Rennie Produce (Aust) Pty Ltd (CAN 076 403 542) • Moora Farming Pty Ltd (ACN 078 896 134) • Agren Pty Ltd (ACN 078 896 116) • Agrico Produce Pty Ltd (ACN 080 113 855) • Camira Investments Pty Ltd (ACN 082 355 520) • Lachlan Produce Pty Ltd (ACN 113 179 883) • Lexington Provident Limited (Registered No 41813) Schedule 3 LETTER OF REQUEST The Hon. Peter H. Moulton Administrative Judge Supreme Court Civil Branch New York County Courthouse 60 Centre Street New York, N.Y. 10007 United States of America Dear Judge, IN THE MATTER OF RENNIE PRODUCE (AUST) PTY LTD (IN LIQUIDATION) ACN: 076 403 542 Case Number: VID 1199/2013 The Federal Court of Australia hereby requests the Supreme Court of the State of New York to assist this court and to act in aid of and to be auxiliary to this court in respect of the winding up of Rennie Produce (Aust) Pty Ltd (In Liquidation) ACN 076 403 542 by making orders, to the extent it has jurisdiction to do so, as follows:

Orders recognising and giving effect to Andrew Reginald Yeo and Gess Michael Rambaldi of Pitcher Partners, Official Liquidators, having been appointed Liquidators of Rennie Produce Aust Pty Ltd on 9 August 2010.
Orders recognising and giving effect to the attached orders to produce documents made by the Federal Court of Australia pursuant to s 597(9) of the Corporations Act 2001 (Cth) on 14 August 2015 that the Standard Chartered Bank New York produce the documents specified in the order to produce documents addressed to it.
Such Orders as it would be open to: (a) the Federal Court of Australia to make if the persons referred to in paragraph 2 above had been within the territorial jurisdiction of the Federal Court of Australia; and (b) the Supreme Court of the State of New York to make if Rennie Produce (Aust) Pty Ltd (In Liquidation) had been a company formed and incorporated in the State of New York and was being wound up in the State of New York, by way of assisting the Liquidators in the exercise of their powers and the discharge of their duties and functions as Liquidators.
Such further orders as Supreme Court of the State of New York may consider just and appropriate. Dated: 14 August 2015

The Hon Justice John Eric Middleton A Judge of the Federal Court of Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1199 of 2013

[10]

Schedule 2 • Mr Paul Nicholas Rennie of Moora Farm, Hillston, NSW, 2675 • Rennie Produce (Aust) Pty Ltd (CAN 076 403 542) • Moora Farming Pty Ltd (ACN 078 896 134) • Agren Pty Ltd (ACN 078 896 116) • Agrico Produce Pty Ltd (ACN 080 113 855) • Camira Investments Pty Ltd (ACN 082 355 520) • Lachlan Produce Pty Ltd (ACN 113 179 883) • Lexington Provident Limited (Registered No 41813) Schedule 3 LETTER OF REQUEST The Hon. Mr Justice Cheung Chief Judge of the High Court High Court of Hong Kong LG1, High Court Building 38 Queensway Hong Kong Dear Judge, IN THE MATTER OF RENNIE PRODUCE (AUST) PTY LTD (IN LIQUIDATION) ACN: 076 403 542 Case Number: VID 1199/2013 The Federal Court of Australia hereby requests the High Court of Hong Kong to assist this court and to act in aid of and to be auxiliary to this court in respect of the winding up of Rennie Produce (Aust) Pty Ltd (In Liquidation) ACN 076 403 542 by making orders, to the extent it has jurisdiction to do so, as follows:

Orders recognising and giving effect to Andrew Reginald Yeo and Gess Michael Rambaldi of Pitcher Partners, Official Liquidators, having been appointed Liquidators of Rennie Produce Aust Pty Ltd on 9 August 2010.
Orders recognising and giving effect to the attached orders to produce documents made by the Federal Court of Australia pursuant to s 597(9) of the Corporations Act 2001 (Cth) on 14 August 2015 that DBS Bank (Hong Kong) Limited produce the documents specified in the order to produce documents addressed to it.
Such Orders as it would be open to: (a) the Federal Court of Australia to make if the persons referred to in paragraph 2 above had been within the territorial jurisdiction of the Federal Court of Australia; and (b) the High Court of Hong Kong to make if Rennie Produce (Aust) Pty Ltd (In Liquidation) had been a company formed and incorporated in Hong Kong and was being wound up in Hong Kong, by way of assisting the Liquidators in the exercise of their powers and the discharge of their duties and functions as Liquidators.
Such further orders as the High Court of Hong Kong may consider just and appropriate. Dated: 14 August 2015

The Hon Justice John Eric Middleton A Judge of the Federal Court of Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1199 of 2013

[14]

Schedule 2 • Mr Paul Nicholas Rennie of Moora Farm, Hillston, NSW, 2675 • Rennie Produce (Aust) Pty Ltd (CAN 076 403 542) • Moora Farming Pty Ltd (ACN 078 896 134) • Agren Pty Ltd (ACN 078 896 116) • Agrico Produce Pty Ltd (ACN 080 113 855) • Camira Investments Pty Ltd (ACN 082 355 520) • Lachlan Produce Pty Ltd (ACN 113 179 883) • Lexington Provident Limited (Registered No 41813) Schedule 3 LETTER OF REQUEST The Hon. Mr Justice Cheung Chief Judge of the High Court High Court of Hong Kong LG1, High Court Building 38 Queensway Hong Kong Dear Judge, IN THE MATTER OF RENNIE PRODUCE (AUST) PTY LTD (IN LIQUIDATION) ACN: 076 403 542 Case Number: VID 1199/2013 The Federal Court of Australia hereby requests the High Court of Hong Kong to assist this court and to act in aid of and to be auxiliary to this court in respect of the winding up of Rennie Produce (Aust) Pty Ltd (In Liquidation) ACN 076 403 542 by making orders, to the extent it has jurisdiction to do so, as follows:

Orders recognising and giving effect to Andrew Reginald Yeo and Gess Michael Rambaldi of Pitcher Partners, Official Liquidators, having been appointed Liquidators of Rennie Produce Aust Pty Ltd on 9 August 2010.
Orders recognising and giving effect to the attached orders to produce documents made by the Federal Court of Australia pursuant to s 597(9) of the Corporations Act 2001 (Cth) on 14 August 2015 that the Hong Kong and Shanghai Banking Corporation Limited produce the documents specified in the order to produce documents addressed to it.
Such Orders as it would be open to: (a) the Federal Court of Australia to make if the persons referred to in paragraph 2 above had been within the territorial jurisdiction of the Federal Court of Australia; and (b) the High Court of Hong Kong to make if Rennie Produce (Aust) Pty Ltd (In Liquidation) had been a company formed and incorporated in Hong Kong and was being wound up in Hong Kong, by way of assisting the Liquidators in the exercise of their powers and the discharge of their duties and functions as Liquidators.
Such further orders as the High Court of Hong Kong may consider just and appropriate. Dated: 14 August 2015

The Hon Justice John Eric Middleton A Judge of the Federal Court of Australia

[19]

BACKGROUND 2 The applicants relied on the affidavits of Mr Andrew Reginald Yeo, a joint liquidator of Rennie Produce (Aust) Pty Ltd ('RPA') and an applicant in this proceeding, sworn on 11 December 2013 (the 'First Affidavit') and 10 June 2015 (the 'Second Affidavit'). 3 In his First Affidavit, Mr Yeo deposed that in October 2012 RPA entered into terms of settlement with its former director, Mr Paul Rennie, and related entities (collectively the 'Rennie Parties'). The terms of settlement were premised on the sale of certain businesses and assets of the Rennie Parties, and that the Rennie Parties would, on settlement of that sale, pay the settlement amount, or some of it, to the applicants. The terms of settlement also provided that, within a certain time, the Rennie Parties would repatriate to Australia any offshore funds held by them (or to their benefit) as at the effective date of the terms of settlement in excess of $13 million, and divide the repatriated funds between the liquidators and the Rennie Parties. If the Rennie Parties did not repatriate the offshore funds in full, all right, title and interest in any non-repatriated offshore funds were to be assigned relevantly to RPA. That right, title and interest is an asset of RPA in the liquidation. 4 Mr Yeo deposed that the Rennie Parties had failed or refused to cooperate with the liquidators to establish that all offshore funds held by or to the benefit of the Rennie Parties have in fact been repatriated. Mr Yeo considered it necessary to conduct examinations to determine what offshore funds were held by or for the benefit of the Rennie Parties as at the effective date, and the quantum and whereabouts of any non-repatriated offshore funds (if any), being assets of RPA in the winding up and forms part of the examinable affairs of RPA. 5 In his Second Affidavit, Mr Yeo deposed that: (a) During the course of his investigations into the affairs of RPA he had identified a number of offshore accounts that he had reason to believe were controlled by the Rennie Parties or their associates and which may hold offshore funds that are assets in the liquidation of RPA. (b) The Rennie Parties have refused to assist the liquidators to satisfy Mr Yeo that all offshore funds have been repatriated by the Rennie Parties and that there are no offshore funds remaining overseas. The Rennie Parties have also refused to provide the documents requested by the liquidators for that purpose. (c) An order for the production of the bank records the subject of the application, by the foreign financial institutions in question, would assist the liquidators in conducting the ongoing examinations of Mr Paul Rennie and other relevant persons into the quantum and whereabouts of offshore funds that are assets in the liquidation of RPA. (d) The liquidator has received legal advice from solicitors in each of the foreign jurisdictions in question, which advice leads him to believe that if the orders sought were made by the Court, those orders would likely be enforced by the courts in each of the jurisdictions in question.

[24]

Section 581(4) 18 As to the first consideration, I accept that the conduct of liquidators' examinations under ss 596A and 596B of the Act (being examinations by the liquidators of a company being wound up in insolvency) into the examinable affairs of that company, is an "external administration matter" for the purposes of s 581(4) of the Act. 19 As to the second consideration, for the reasons set out above the order for production of documents from the financial institutions in question will aid the liquidators in identifying assets of the company (in the form of offshore funds not repatriated). The financial institutions in question are resident in the United States, Hong Kong and Switzerland and are therefore not directly compellable under Australian law. I accept that there is a good substantive reason for the requests. The requests relate to documents which are material and necessary for the examination of the affairs of RPA and will assist in the examination of Mr Rennie and the other relevant persons. The discovery of documents sought by the relevant institutions is specific, and is not in the nature of a fishing expedition. As I have indicated, the documents sought are relevant to and appropriately requested in relation to identifying the quantum and whereabouts of funds that may have been transferred offshore by the Rennie Parties and related entities and not repatriated. In this regard, I accept the evidence put forward in the affidavits of Mr Yeo. 20 As to the third consideration, the applicant has obtained advice from solicitors in each of the jurisdictions to the effect that the relevant request is likely to have some utility, which I accept. 21 I make one final observation. Paragraph 3 of the proposed letters of request is based on concerns held by Lindgren J in Elderslie. This paragraph is designed to ensure that the foreign courts are being asked to do no more than the Federal Court could do within the territorial jurisdiction of Australia, and no more than the foreign courts could do if RPA had been incorporated in those foreign jurisdictions.

Elderslie Finance Corporation Ltd v Newpage Pty Ltd

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