Hong Kong Bank of Australia Ltd v Murphy

The applicable principles

1. With this background, I turn briefly to the relevant law, before returning to Mr Byrne's submissions. Section 596A of the Corporations Act 2001 (Cth) provides for a mandatory examination and s 596B provides for a discretionary examination, in respect of certain persons, about a corporation's examinable affairs. The examination in issue in this case relies on s 596B of the Act, as an amendment made by consent to the summons for examination directed to Mr El-Cheikh made clear.
2. In Sutherland v Pascoe, Re Matrix Group Ltd as trustee for the Matrix Group Unit Trust (in liq) (No 2) [2012] FCA 1361, Jacobson J observed that there is a heavy obligation on a person applying for an examination summons to make full and frank disclosure of all materials which may impact upon the decision to summons a person for examination about a corporation's examinable affairs. His Honour there observed that the obligation is one of "frankness and candour to bring to the court's attention all material including that which might lead the court to refuse the application". His Honour there noted that the question for a court, in dealing with the application to set aside the examination summons, was whether matters not disclosed were "material" to the decision of the registrar to issue the summonses, and not whether the summons would have been issued in any event.
3. The significance to the issues was emphasised by the decision of White J in Re Mendarma Pty Ltd (in liq) [2006] NSWSC 1306; (2006) 24 ACLC 1611. In that case, proceedings were on foot between parties associated with Mendarma and another entity and liquidators applied for examinations, without disclosing the existence of those other proceedings. White J there found that there had been a material non-disclosure and a risk that the examination would be used for an improper purpose, where the transcript of the examination could be used to give a forensic advantage to the other party in the other proceedings, which would not have been obtainable in those proceedings, and that the non-disclosure of those proceedings was sufficient basis to set aside the examination, while reserving the liquidator's ability to seek a further examination order with full disclosure.
4. These principles were again emphasised by Jagot J in Re Bell Group NV (No 2) [2017] FCA 927 at [50], where her Honour noted that the fact that current proceedings were pending will make it necessary for the court to be alert to the possibility that a proposed application might be used for an improper purpose, referring to the decision in Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 518-519; (1992) 8 ACSR 736, and that the existence of those proceedings may need to be disclosed to allow a registrar to make an informed decision as to whether to issue an examination summons. It is implicit in her Honour's observations, and it was plainly the case in Re Bell Group NV (No 2) above, that they are directed to the position where there is a connection between the proposed subject matter of the examination and the other proceedings, or an overlap between them, so as to raise the risk that the examination might be used for an improper purpose or might give an advantage to a party in the other proceedings. Mr Byrne also refers, helpfully and uncontroversially, to other authorities that set out the circumstances in which an examination summons can be set aside for non-disclosure, including my decision in Re Owston Nominees No 2 Pty Ltd (in liq) (recs and admins apptd) [2013] NSWSC 538; (2013) 94 ACSR 500 and the recent decision of Rees J in Re Newheadspace Pty Ltd (in liq) [2020] NSWSC 173 at [144]-[145].

Determination

1. The difficulty that emerged for Mr El-Cheikh's application to set aside the examination summons, particularly as Mr Byrne sought to identify the suggested overlap between the Liquidator's examination and the Equity Proceedings, is that it is impossible to identify any real overlap between the two, other than at a level of the widest generality.
2. In submissions, Mr Byrne emphasised that the Equity Proceedings involved Mr El-Cheikh and an associated company as Plaintiffs and Ms Miraki and Iconic Australia as Defendants, and the latter are represented by Mr Tomaras as I have noted above. In the Equity Proceedings, Mr El-Cheikh alleges that a joint venture existed between him and his corporate group on the one hand and Iconic Australia on the other, and that a decision was made to purchase a particular property which, at a point in time, appears to have adjoined the business address for Iconic NSW. Mr El-Cheikh there also makes allegations as to loan transactions between the relevant parties which do not include Iconic NSW. Mr Byrne submits that the matters in issue in dispute in the Equity Proceedings include the alleged joint venture between Ms Miraki and Mr El-Cheikh; the funding of the property that was purchased, and the relevant loans and Mr El-Cheikh's conduct of a business styled "Iconic" in the relevant property. I recognise that, at a high level of generality, Ms Miraki is present in the Equity Proceedings, Mr El-Cheikh is present, and Iconic NSW is on the periphery as an entity that used an adjacent property address as its business address for a period, and appears to be a member of the group known as the Iconic Group, to which reference is made in the Equity Proceedings. The suggested overlap with the proposed examination does not go beyond that.
3. This raises the question whether there is sufficient overlap between the subject matter of the Liquidator's examination and the Equity Proceedings that a failure to disclose the latter, in the application for the examination order, amounted to a material non-disclosure, or a non-disclosure of a material matter. I have recognised above that this is not a question whether the same order would have been made had that matters been disclosed, but whether they were material for disclosure at all. I am ultimately satisfied that the existence of the Equity Proceedings was not material, and not a matter that was required to be disclosed to the registrar.
4. As the Liquidator's letter of demand and the relevant paragraphs of the affidavit make clear, the Liquidator's examination of Mr El-Cheikh is directed to investigating the withdrawal of monies in cash from Iconic NSW and the role of Mr El-Cheikh in the management of Iconic NSW. The Liquidator of Iconic NSW has a plain interest, in respect of all creditors, in determining where Iconic NSW's money has gone, and in particular, whether it has gone to Mr El-Cheikh in significant cash transactions in circumstances that he may or may not have had an involvement in the management of Iconic NSW. There seems to me to be no realistic possibility that the Liquidator would or could conduct a roving inquiry as to the business affairs of other entities in issue in the Equity Proceedings in order to investigate that matter, and it makes no difference in that regard that the same solicitors act for the Liquidator in the examination and a major creditor in the Equity Proceedings. There is here no realistic prospect of overlap, at any level that can give rise to a material matter to be disclosed, between the examination and the Equity Proceedings.
5. Where there is no real prospect of overlap, the fact that litigation existed between a major creditor of Iconic NSW and Mr El Cheikh is not, in itself, a matter which was material for disclosure, since it could have had no impact upon the registrar's decision whether to issue the examination summons, where it is the Liquidator not the major creditor who is conducting the examination. The fact of common representation also does not seem to me to be a material matter, on its own or in combination with other matters, where common representation between a major creditor and a liquidator has become, rightly or wrongly, increasingly common and increasingly permitted by the courts over the years. The existence of the Equity Proceedings might well have been material, had there been a real prospect of overlap between them and the examinations, or had the affairs of Iconic NSW been an issue in the Equity Proceedings or the affairs of the companies in issue in the Equity Proceedings a significant issue in the examinations. But that is not the case.
6. It may well be that the Liquidator might, as a matter of more abundant caution, have preferably disclosed the existence of the Equity Proceedings in applying for a liquidator's examination of Mr El-Cheikh, not least because that would have avoided the prospect that an application of this kind would be brought. However, I am not satisfied that these matters were material so as to require disclosure, and where they were not material to require disclosure, the non-disclosure of them does not provide a basis to set aside the examination of Mr El-Cheikh.

Costs

1. Turning now to the question of costs, Mr Byrne rightly pointed out that Mr El-Cheikh had obtained a degree of success, albeit by way of compromise between the parties, in respect of access to the affidavit in support of the examination. Mr Tomaras responded, also correctly, that that was not by way of capitulation on the Liquidator's part. It seems to me that there should be no order as to the costs of the application for access to the liquidator's affidavit in support of the examination summons.
2. On that basis, two forms of cost order could have been made, namely an order that Mr El-Cheikh pay the costs of the application to set aside the examination of summons, excluding the costs of the application for access to that affidavit, or an order for the costs of today. The former would have involved costs, for both parties, in undertaking a segregation exercise and Mr Tomaras has, it seems to me sensibly in the circumstances, favoured the latter. Mr Byrne supports that approach, so far as it will likely avoid the waste of costs in that segregation exercise, without resulting in Mr El-Cheikh bearing liability for costs that he should not bear.

Orders

1. For these reasons, I make the following orders: 1 The Interlocutory Process dated 18 June 2020 and filed 19 June 2020 by Mr Omar El-Cheikh is dismissed. 2 Mr Omar El-Cheikh pay the costs of the hearing today in respect of the application to set aside the examination summons.

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