FEDERAL COURT OF AUSTRALIA Vrkic, in the matter of Vrkic as Liquidator of V Health Plus Corporation Pty Ltd (in liq) [2017] FCA 1052 File number: NSD 73 of 2017 Judge: MARKOVIC J Date of judgment: 1 September 2017 Catchwords: CORPORATIONS – application for issue of arrest warrants – failure to comply with summons to attend to be examined about the examinable affairs of a company in liquidation – whether to make orders for issue of arrest warrants Legislation: Corporations Act 2001 (Cth) Federal Court (Corporations) Rules 2000 (Cth) Cases cited: Pascoe, in the matter of GMP Electrical and Technical Services Limited (in liq) [2010] FCA 999 Date of hearing: 1 September 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 8 Solicitor for the Applicant: Mr J Welch, Access Law Group ORDERS NSD 73 of 2017 IN THE MATTER OF VRKIC AS LIQUIDATOR OF V HEALTH PLUS CORPORATION PTY LTD (IN LIQUIDATION) ACN 167 843 085 DANNY TONY VRKIC AS LIQUIDATOR OF THE V HEALTH PLUS CORPORATION PTY LTD (IN LIQUIDATION) ACN 167 843 085 Plaintiff IN THE INTERLOCUTORY APPLICATION: DANNY TONY VRKIC AS LIQUIDATOR OF THE V HEALTH PLUS CORPORATION PTY LTD (IN LIQUIDATION) ACN 167 843 085 Applicant JUDGE: MARKOVIC J DATE OF ORDER: 1 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. Pursuant to r 11.10(2) of the Federal Court (Corporations) Rules 2000 (Cth), a warrant be issued for the arrest of Dr Mirza Baig in the terms of the document marked Schedule B, which has been provided to the Court by the solicitors for the liquidator, to bring Dr Baig before the Federal Court of Australia at Law Courts Building, Queens Square, Sydney NSW 2000 pending the making of a further order by the Court, and to bring him there for examination under s 596A of the Corporations Act 2001 (Cth) about the examinable of V Health Plus Corporation Pty Ltd (in liquidation) ACN 167 843 085 on 12 September 2017 at 10.15 am. 2. Pursuant to r 11.10(2) of the Federal Court (Corporations) Rules 2000 (Cth), a warrant be issued for the arrest of Roselyn Singh (also known as Simiran Singh) in the terms of the document marked Schedule A, which has been provided to the Court by the solicitors for the liquidator, to bring Ms Singh before the Federal Court of Australia at Law Courts Building, Queens Square, Sydney NSW 2000 pending the making of a further order by the Court, and to bring her there for examination under s 596A of the Corporations Act 2001 (Cth) about the examinable affairs of V Health Plus Corporation Pty Ltd (in liquidation) ACN 167 843 085 on 12 September 2017 at 10.15 am. 3. The applicant is to serve a copy of this order on Mirza Baig by delivering a copy of it to Unit 151, 110 Sussex Street, Sydney NSW 2000 by no later than 5.00 pm on 4 September 2017. 4. The applicant is to serve a copy of this order on Roselyn Singh (also known as Simiran Singh) by: (a) handing it in a sealed envelope addressed to Roselyn Singh and marked "Confidential" to any person apparently over the age of 16 years at 40 Park Street, Sydney NSW 2000; (b) sending it by prepaid ordinary post to Roselyn Singh marked "Confidential" to 40 Park Street, Sydney NSW 2000; (c) handing it in a sealed envelope addressed to Roselyn Singh and marked "Confidential" to any person apparently over the age of 16 years at 280 Pitt Street, Sydney NSW 2000; (d) sending it by prepaid ordinary post to Roselyn Singh marked "Confidential" to 280 Pitt Street, Sydney NSW 2000; and (e) by sending it by email to rs@yhwh.com.au and co@vhealthplus.com.au. 5. Service on Roselyn Singh in accordance with Order 4 is to be effected by 5.00 pm on 4 September 2017. 6. The parties have liberty to apply on 24 hours' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) MARKOVIC J: 1 This is an application made pursuant to r 11.10(2) of the Federal Court (Corporations) Rules 2000 (Rules). The applicant is the liquidator of V Health Plus Corporation Pty Limited (in liquidation) (Liquidator). 2 By interlocutory application filed on 31 August 2017, the Liquidator seeks an order for the issue of a warrant for the arrest of Ms Roselyn Singh, also known as Simiran Singh, and an order for the issue of a warrant for the arrest of Dr Mirza Baig for, in each case, their failure to comply with an order under s 596A of the Corporations Act 2001 (Cth) (Act) in that both Ms Singh and Dr Baig have failed to attend for examination as required by that order and the summons for examination that was served on each of them. 3 Section 597(6) of the Act relevantly provides that a person who is summoned under s 596A of the Act to attend before the Court must not intentionally or recklessly fail to attend as required by the summons or fail to attend from day to day until the conclusion of the examination. Section 597(6A) provides that s 597(6) does not apply to the extent that the person has a reasonable excuse. 4 The application for the issue of the warrants is supported by an affidavit sworn by James Geoffrey Welch on 29 August 2017. It is clear from the evidence contained in that affidavit that: (1) summonses for examination were served on each of Dr Baig and Ms Singh; (2) in the case of Dr Baig: (a) he first attended for examination on 3 May 2017, at which time he was examined and the usual order for adjournment of his examination was made. An order was made that his examination be adjourned to 6 June 2017 at 10.15 am; (b) the solicitors for the Liquidator provided a copy of the orders made by the Court on 3 May 2017 to Dr Baig and confirmed that he would be required to attend on 6 June 2017 for further examination; (c) Dr Baig did not attend on 6 June 2017 and the Court ordered that the examination of, among others, Dr Baig be adjourned until 30 August 2017; (d) once again, the solicitors for the Liquidator informed Dr Baig of the further date for examination. In a letter to Dr Baig they informed him, among other things, that if he did not appear before the Court on 30 August 2017 then they would approach the duty judge with an interlocutory application "for the warrant of your arrest"; and (e) Dr Baig did not appear for examination on 30 August 2017; and (3) in relation to Ms Singh: (a) an order was made by a registrar of this Court on 3 May 2017 for a sealed copy of the summons issued pursuant to s 596A of the Act to be served on her in the manner set out in that order, as it seems that the Liquidator had been unable to serve her prior to that date. Ms Singh's examination was adjourned until 6 June 2017; (b) in the interim, service was effected in accordance with the Court's order made on 3 May 2017; (c) Ms Singh did not appear before the Court on 6 June 2017. Her examination was adjourned until 30 August 2017; (d) on 27 June 2017 the solicitors for the Liquidator were contacted by Barry Spinks of Spinks Eagle Lawyers, who indicated that he acted for Ms Singh. Mr Spinks was informed by the solicitors for the Liquidator that the examinations were listed to continue on 30 August 2017. The solicitors for the Liquidator sought confirmation that Ms Singh would appear on that date, noting that, absent that confirmation, they would "consider [themselves] at liberty to file the interlocutory application for her arrest without further notice", the Court having ordered that the liquidator do so on 6 June 2017; (e) in a conversation on 25 August 2017 Mr Spinks informed the Liquidator's solicitors that he no longer acted for Ms Singh. He confirmed that to be the case by email dated 29 August 2017; and (f) the Liquidator's solicitors, in any event, wrote to Mr Spinks confirming that the public examination of Ms Singh had been adjourned to 10.15 am on 30 August 2017 and also wrote to Ms Singh informing her of the same matter. The letters addressed to Mr Spinks and Ms Singh each indicated that, if Ms Singh did not appear before the Court on 30 August 2017, those solicitors would "approach the duty judge on this date with an interlocutory application for the warrant of [Ms Singh's] arrest". 5 When the matter came before the Court on 30 August 2017 Ms Singh and Dr Baig did not appear. 6 Rule 11.10 of the Rules relevantly provides that it applies if a person is summoned or ordered by the Court to attend for examination and, without reasonable cause, the person fails to attend at the time and place appointed or fails to attend from day to day until the conclusion of the examination. Subrule (2) provides that the Court may issue a warrant for the arrest of the person summoned or ordered to attend for examination and may make any other orders that the Court thinks just or necessary. 7 Having regard to the evidence, which I have summarised above, I am satisfied that Dr Baig was aware of the adjourned date for examination and failed to attend. I am also satisfied that Ms Singh was served with the summons issued pursuant to s 596A of the Act to attend the examination and that she has also failed to attend. In each case the failure to attend has occurred on more than one occasion. In circumstances where Dr Baig has not responded to the notification and the orders for the adjournment of his examination and Ms Singh has not responded to the service of the summons for examination or subsequent notification to her of the adjourned date for her examination in any way, other than the brief communication with the solicitor who acted for her for a short time, it appears that Dr Baig and Ms Singh have no reasonable cause for their failure to comply with the orders: see Pascoe, in the matter of GMP Electrical and Technical Services Limited (in liq) [2010] FCA 999 at [4]. 8 Consequently, I am satisfied that, pursuant to r 11.10(2) of the Rules, I have the power to issue warrants for the arrest of Dr Baig and Ms Singh and I am satisfied that orders should be made to that effect. I will make orders accordingly, including an order that a copy of the orders so made be served on Dr Baig and Ms Singh. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate: Dated: 11 September 2017