FEDERAL COURT OF AUSTRALIA Tang (liquidator) v Wright, in the matter Wright's Transport Pty Ltd (in liq) (No 2) [2020] FCA 749 File number: NSD 548 of 2020 Judge: STEWART J Date of judgment: 26 May 2020 Catchwords: CORPORATIONS – application for issue of warrant under s 530C of the Corporations Act 2001 (Cth) – ex parte application – leave to have warrant issued – where previous warrant issued incorrectly Legislation: Corporations Act 2001 (Cth) s 530C Cases cited: Tang (liquidator) v Wright, in the matter Wright's Transport Pty Limited (in liq) (No 1) [2020] FCA 709 Date of hearing: 26 May 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 7 Solicitor for the Plaintiffs: L Whiffen of Hilton Bradley Lawyers ORDERS NSD 548 of 2020 BETWEEN: JASON BING-FAI TANG AND OZEM AZZAM KASSEM IN THEIR CAPACITY AS LIQUIDATORS OF WRIGHT'S TRANSPORT PTY LIMITED (IN LIQUIDATION) ACN 110 737 838 First Plaintiff WRIGHT'S TRANSPORT PTY LIMITED (IN LIQUIDATION) Second Plaintiff AND: ROBERT WRIGHT Defendant JUDGE: STEWART J DATE OF ORDER: 26 MAY 2020 THE COURT ORDERS THAT: 1. The warrant issued in this proceeding and dated 22 May 2020 is set aside. 2. The District Registrar issue, pursuant to s 530C of the Corporations Act 2001 (Cth), a warrant in the form of the warrant in Schedule A to these orders. 3. Orders 3 and 4 of 21 May 2020 are discharged. 4. Within 14 days of the execution of the warrant referred to in order 2 above, the plaintiffs shall serve the originating application, supporting affidavits, these orders and the reasons for judgment on 21 May 2020 and today on the defendant. 5. The matter remains listed for case management at 9:30am on 25 June 2020. 6. The parties and any other party claiming an interest in the vehicle have liberty to apply on at least two days' notice. 7. The costs of the application today are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) STEWART J: 1 On 21 May 2020, I made orders under s 530C of the Corporations Act 2001 (Cth) authorising the issuing of a warrant for the arrest and recovery of a Kenworth prime mover vehicle. The vehicle was identified by reference to a vehicle identification number (VIN), VIN 6F5000000DA449412. As my reasons for judgment on that occasion reflect, there are two similar vehicles, one of which was recovered by the police, and one which was not. See Tang (liquidator) v Wright, in the matter Wright's Transport Pty Limited (in liq) (No 1) [2020] FCA 709. 2 The plaintiffs have now filed affidavits, which explain that there was an error in the affidavits previously filed with regard to the identification of the vehicle that had been recovered. The consequence of that was that there was an error in the identification of the vehicle that was still required to be recovered. That error became apparent when repossession agents on behalf of the plaintiffs attended at the premises of the respondent in order to recover the vehicle. They found a vehicle matching the description of the vehicle that they were seeking, but it had a different VIN, namely VIN 6F5000000DA450072. Since both vehicles are Kenworth prime movers, it is not surprising that they fit the same description. 3 The true position, the new affidavits say, is that the vehicle with registration 338XUD was recovered by the police, and that the vehicle with registration 302XUD still needs to be recovered by way of the warrant. That is the reverse of the position previously deposed to. 4 The unhappy report from the repossession agents underscores the conclusion previously reached that the outstanding vehicle is not likely to be recovered other than by way of compulsory legal process: On 25May20 at 1815hrs agent ET and AP attended [address in Pittsworth QLD]. AP spoke with Robert and Dawn Wright who both refused to surrender the vehicle. Agent ET found a truck with no registration plates but could see the markings of where it used to be which showed 302XUD. Agent was unable to locate the VIN of the truck. Robert advised that his son Jason and daughter Melissa were on their way. Melissa parked the truck in with her own vehicle. Jason then arrived and started threatening both agents. Jason then made threats against ET's car and started to walk towards the car with a long chain. Agent AP stood in front of Jason, Jason kept on pushing and shoving agent AP. Agent ET moved car onto the road in front of the Premises. Agent AP and ET moved off the Premises to wait for police presence as the situation was escalating and more people were turning up. A Proton Jumbuck ute (rego […]) turned up to the Premises and the male occupant made threats to both agents. A dark Holden Statesman sedan also turned up to the premises, the male occupant got out of the vehicle with what appeared to be a baseball bat and started speaking with Jason. Jason and the male Third Party started walking towards both agents with the chain and bat. Both agents drove away from the Premises and were then chased by the male Third Party in the Holden Statesman. The Holden returned to the Premises. Agents parked down the end of the street and called the police again. The police vehicle arrived and escorted agents back to the Premises. The Police Officer went and spoke with all parties involved and one of the male Third Party's attempted to attack agent AP. The Police Officer intervened and calmed everyone down. Agent AP withdrew so the Police Officer could talk to the subjects. Another Officer arrived shortly after. The Police Officers checked the VIN's on all trucks on site and none matched the VIN of the truck on the Court Order. The VIN on the truck the subjects had parked in front of was 6F5000000DA450072. The Court Order had a VIN of 6F5000000DA449412. The tow truck arrived at the Premises and agents advised to leave. Both agents left the Premises at approx 8:30PM. 5 The consequence of all that is that the plaintiffs now seek to set aside the warrant which was previously issued, which recorded the wrong VIN, and they seek the issue of a fresh warrant identifying the vehicle to be repossessed by the correct VIN, namely VIN 6F5000000DA450072, and the engine with engine number 79654456. That is the engine of the vehicle that is required to be recovered, which is the vehicle which formerly had the registration 302XUD. If that engine is in the vehicle, then it will be recovered with the vehicle. If it is the engine which is not in the vehicle, but nevertheless on the premises, it can obviously still be recovered, and a warrant to that effect should issue. 6 Mr Whiffen, who appears today on behalf of the plaintiffs, accepts that the element of surprise in the recovery of the vehicle is now lost following the incident where the repossession agents attended on the premises in order to attempt to recover the vehicle. 7 In those circumstances, the justification for the confidentiality regime or suppression orders falls away. I will therefore make orders discharging the previous orders. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart. Associate: Dated: 26 May 2020