Friedrich v Herald and Weekly Times Ltd - [2011] NSWSC 639 - NSWSC 2011 case summary — Zoe

NSWNSWSC

Friedrich v Herald and Weekly Times Ltd

[2011] NSWSC 639

Supreme Court of NSW|2011-06-20|Before: Ward J, Re Hugh J, Ms JA

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2011-06-20

Before

Ward J, Re Hugh J, Ms JA

Catchwords

Re: River Equity Pty Ltd

Source

Original judgment source is linked above.

Catchwords

Re: River Equity Pty Ltd

Judgment (3 paragraphs)

[1]

Can and should a creditor (or someone claiming as such) of a company in liquidation be given access to the documents elicited from a liquidator's compulsory examination, when sought by that creditor to assist it in proceedings against the Company or, as here, associated defendants? Is there any difference between documents specifically put to an examinee and marked for identification and other documents obtained prior to or in the course of the examination? The examinees or their companies oppose access and seek return of all original documents and destruction of all copies. The liquidator, for his part, is not opposed to making the documents available, considering as he does that their use by the creditor in pursuing the litigation may be in the interests of the liquidation. ...

[33]

Thus a fair way of putting the matter is to conclude that the trend of expansion of the examination provisions starting in 1991 and expanded in 1993 comports with a legislative scheme that allows creditors access not only to the transcript but also to the documents produced pursuant to the examination if necessary with a Court direction to ensure no abuse. It would be incongruous that creditors are permitted to attend such examinations, in public unless ordered otherwise, able to hear the questions and answers put including any reference to documents produced, later be entitled as of right to a copy of the written record of the examination, yet be denied copies of the produced documents after the examination. Such access, if allowed, is not ordinarily antithetical to the legislative purpose or thereby an abuse of that process. The contrary is borne out by the legislative scheme and the prior legislative history of expansion of the examination process. ...

[39]

It is against that background that I now approach the specific provisions of the Corporations Law. I am satisfied that there are a number of sources of power available to the liquidator to do that which he does not oppose doing, namely to make available the documents which were utilised in the examination either by directly being marked for identification or as otherwise being produced for the examination. I see no sensible distinction being drawn between the two categories of document. The documents not marked for identification were still capable of informing the examination and influencing the questions asked. Indeed the liquidator's submissions appear to favour that access. Thus I would include in any access all documents produced, in the absence of any evidence from those opposing access that a document was produced which was entirely extraneous to any possible purpose of the original examination. (my emphasis) 57It seems to me that the order for access to transcript should include access or inspection of the documents provided to each of Messrs Ryan and Sheedy and marked for identification in the course of the examinations as sought by BMC. Orders 58Accordingly, for the reasons set out above, I propose to make the following orders:

Pursuant to s 596F(1)(e) of the Corporations Act 2001 (Cth), I direct that the applicant be provided (on payment of the requisite fee or otherwise at its cost) with a copy of (or otherwise be permitted to inspect and take a copy of): (a) the transcript taken of the examinations of Mr Ryan and Mr Sheedy on 13 May 2011 and on any later date; and (b) the documents provided to each of Mr Ryan and Mr Sheedy and marked for identification in the course of their examinations.
I direct that the examinations of Mr Ryan and Mr Sheedy be treated as if they had been examinations held in public.
I vary order 5 of the orders made on 13 June 2011 such that there is no longer a restriction on access to, or requirement that it be kept confidential, the transcript of the examinations of Mr Ryan and Mr Sheedy. 59Before finalising the above orders, I will give the parties an opportunity to make any submissions as to the form of those orders by notifying my Associate by 1 July 2011. 60I consider that the appropriate order would be for BMC to pay the costs of the application by Wambo but will hear submissions on this aspect of the matter if any party wishes to make such submissions (in which case they should notify my Associate by 1 July 2011, failing which I will make the order so foreshadowed).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2011

Friedrich v Herald and Weekly Times Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (3 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)

Cited By (1)