Livingstone (Liquidator) v Lutui, in the matter of Suria Global

[3]

background 2 At the hearing of the application the applicants relied upon affidavits made by Mr Jacob Hamilton, a solicitor in the employ of the solicitors for the applicants, affirmed on 30 May 2023 and 6 June 2023. The following background is taken from the affidavits of Mr Hamilton. 3 In March 2023, a summons for examination addressed to the respondent and issued under s 596A of the Corporations Act 2001 (Cth) was sealed by the Court. This summons required the respondent to attend before the Court at 10:15am on 6 June 2023 until excused by the Court. 4 Prior to 29 May 2023, the solicitors for the applicants had been unable to effect service of the summons on the respondent. However, the solicitors for the applicants became aware of a document produced by another entity pursuant to an order for production in this proceeding that contained a telephone number (0447 000 861) and an email address (alanlutui@gmail.com) apparently associated with the respondent. 5 On 29 May 2023, Mr Hamilton called the telephone number. The call was answered by a man who said "John speaking" with a Northern American accent. They had a conversation to the following effect: Mr Hamilton: Is this [the respondent]? Respondent: Yes, it is. Mr Hamilton: It's Jacob Hamilton calling from William James. We act on behalf of the liquidators of Suria. We have been trying to get into contact with you. Respondent: Okay. Mr Hamilton: Could you please provide me with your residential address. Respondent: I don't have an address at the moment. Mr Hamilton: Is your email address still alanlutui@gmail.com? Respondent: Yes, it is. 6 Later that day, Mr Hamilton sent an email to the email address attaching, inter alia, the summons and foreshadowing an application for deemed service under r 10.23 of the Federal Court Rules 2011 (Cth). A text message was also sent that day to the telephone number, drawing attention to the email, and stating that the respondent was required to attend the Court on 6 June 2023. 7 On 1 June 2023, Registrar Hammerton-Cole made orders for the summons to be taken to have been served on the respondent on 29 May 2023. The 1 June 2023 orders required that a copy of those orders and a notice stating that the respondent was required to attend for examination from 10:15am on 6 June 2023 be served at the email address and via SMS to the telephone number. Each of these steps was completed by the applicants' solicitors on the afternoon of 1 June 2023. 8 On 6 June 2023: (a) at 9:29am, Mr Hamilton caused a SMS message to be delivered to the telephone number reminding the respondent that he was required to attend before the Court for examination at 10:15am that day; (b) at 10:15am, the respondent did not attend before the Court. The respondent's name was called outside the Court to no avail. Registrar Hammerton-Cole granted an adjournment, during which Mr Hamilton called the telephone number at 10:20am and 10:21am. These calls were not answered. (I was informed from the bar table that these calls "rang" and then went to a voice message); (c) at 10:32am, Mr Leonard McCarthy, a special counsel in the employ of the applicants' solicitors sent a text message to the telephone number confirming that the respondent had been required to attend the Court at 10:15am that day; and explaining that if the respondent failed to attend or did not explain his absence by return call or text message, the applicants' solicitors had instructions to seek a warrant for his arrest to compel his attendance; (d) at 11:30am, Registrar Hammerton-Cole further adjourned the examination until 2:15pm that day; (e) at 12:56pm, Mr Hamilton sent an email to the email address notifying the respondent that if he did not attend before the Court for examination at 2:15pm that day, the applicants' solicitors would seek a warrant for his arrest. Shortly after sending this email, Mr Hamilton received a notification that the email could not be delivered; (f) at or around 1:08pm, Mr McCarthy sent an email to the email address in identical terms to Mr Hamilton's email of 12:56pm, with the same result; and (g) at 2:15pm, the respondent did not attend before the Court.

[4]

CONSIDERATION 9 The applicants sought orders for: the issue of a warrant pursuant to r 11.10 of the Federal Court (Corporations) Rules 2011 (Cth); notice of the issue of the warrant to be communicated by the applicant to the Commissioner of the Australian Federal Police for the purpose of the warrant's enforcement; and for the applicants to serve a copy of those orders on the respondent by sending a text message to the telephone number before 6:00pm on 6 June 2023. Rule 11.10 provides in so far as is presently relevant: 11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and: (a) without reasonable cause, the person: (i) fails to attend at the time and place appointed; or … (2) The Court may: (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the Court thinks just or necessary. 10 Rule 11.10 provides the Court with a discretion to issue a warrant for the arrest of a person summoned or ordered by the Court to attend for examination. That discretion can be enlivened in a number of ways. Relevantly to the present application it may be enlivened where: (1) a person is summoned or ordered to attend for examination; (2) that person fails to attend at the time and place appointed for the examination; and (3) such failure is without reasonable cause. 11 I was satisfied that each of these pre-conditions had been established on the evidence. 12 As to (1), the respondent had been summoned to attend, by the summons. As to (2), the time and place appointed for such attendance was 10:15am on 6 June 2023 and the respondent failed to attend. 13 As to (3), no reasonable excuse was apparent on the evidence. Further: (1) the summons was apparently sent to the respondent via the telephone number and the email address on 29 May 2023, following a conversation with a person who answered a call made to the telephone number and who purported to be the respondent; (2) further steps, as set out at [7] and [8] above, had been taken using, in particular, the telephone number in attempts to communicate with the respondent and secure his attendance at the examination, including at the adjourned times; (3) there was no reason to believe that the telephone number is no longer connected to the respondent. 14 Consequently, I was satisfied that the discretion had been enlivened. The matters which enlivened the discretion also informed its exercise and made it appropriate to make the order sought by the applicants. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.

Livingstone (Liquidator) v Lutui, in the matter of Suria Global - [2023] FCA 609 - FCA 2023 case summary — Zoe

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