Mohen (Liquidator), in the matter of MAP Exports Pty Limited (in liq) v Rebelo [2021] FCA 1415

Federal Court of Australia

Mohen (Liquidator), in the matter of MAP Exports Pty Limited (in liq) v Rebelo [2021] FCA 1415 File number: WAD 251 of 2021

Judgment of: BANKS-SMITH J

Date of judgment: 15 November 2021

Catchwords: CORPORATIONS - liquidator - application for warrant to issue under s 530C of the Corporations Act 2001(Cth) - warrant to search for and seize property

Legislation: Corporations Act 2001 (Cth) ss 9, 86, 475, 530A, 530C, 597A Federal Court of Australia Act 1976 (Cth) s 37AG

Cases cited: Carrello (Liquidator), in the matter of Drilling Australia Pty Ltd (in liq) [2019] FCA 1563 Re Kala Capital Pty Ltd [2013] NSWSC 1982 Tang (Liquidator) v Wright, in the matter of Wright's Transport Pty Limited (in liq) [2020] FCA 709

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 35

Date of hearing: 15 November 2021

Counsel for the Applicant: Mr JS Slack-Smith

Solicitor for the Applicant: Stacks Law Firm

ORDERS WAD 251 of 2021

BETWEEN: JEROME HALL MOHEN AS LIQUIDATOR OF MAP EXPORTS PTY LIMITED (IN LIQUIDATION) (ACN 153 932 202) Applicant

AND: ROMEO REBELO Respondent

order made by: BANKS-SMITH J DATE OF ORDER: 15 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The District Registrar issue, pursuant to s 530C of the Corporations Act 2001 (Cth) a warrant substantially in the form of the warrant appearing at Annexure A. 2. The requirement that the interlocutory process be served on the respondent is dispensed with in the first instance and leave is granted to the applicant to make the application ex parte. 3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and in lieu of the orders made 10 November 2021, on the grounds that it is necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the Federal Court Act and until further order of the Court or the discharge of this order pursuant to orders 4 and 5 below, publication or other disclosure of the following is prohibited as follows: (a) the interlocutory process for the issue of a warrant and other relief dated 8 November 2021 is to be kept confidential and, except with the leave of the Court, is not to be disclosed to anyone other than the Court and Court staff; (b) the affidavits of Jerome Hall Mohen dated 8 November 2021 and Philip Davie dated 8 November 2021 (both affidavits filed in support of the interlocutory process for the issue of a warrant) are to be kept confidential and, except with leave of the Court, are not open to inspection to any person other than the Court and Court staff; and (c) the outline of submissions dated 12 November 2021, the list of authorities and these orders are to be kept confidential and, except with the leave of the Court, are not to be disclosed to anyone other than the Court and Court staff. 4. Within 14 days of the last date on which the warrant has been executed, the applicant file an affidavit reporting on the execution of the warrant and annexing a list of the property and books seized. 5. On the filing of the affidavit referred to in order 4, order 3 shall be discharged. 6. Within seven days of the filing of the affidavit referred to in order 4, the applicant serve on the respondent the interlocutory process, the affidavits referred to in order 3(b), a copy of any orders made in these proceedings, the reasons for judgment and the affidavit referred to in order 4. 7. In lieu of personal service, the documents referred to in order 6 may be served by emailing a copy of the documents to romeo@mapexports.com, and by delivering copies to the property at 60 Prinsep Road, Jandakot WA 6164 marked for the attention of Mr Rebelo. 8. Pursuant to s 597A of the Corporations Act, within 14 days of service of the documents referred to in order 6, the respondent file an affidavit specifying: (a) the current whereabouts of the vehicles, and any keys for those vehicles, listed in Annexure B that have not been seized by the applicant (the Outstanding Vehicles), including the specific address where the Outstanding Vehicles are located; (b) if the current whereabouts of the Outstanding Vehicles, and any keys for the Outstanding Vehicles, are unknown, the address of the last known location of the Outstanding Vehicles and those keys; and (c) to the extent that the respondent is aware of any person who may have possession, control or custody of any of the Outstanding Vehicles, the name and contact details of those persons. 9. Liberty to apply to relist the proceedings on two business days notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexure A WARRANT FOR SEARCH AND SEIZURE TO: JEROME HALL MOHEN AS LIQUIDATOR OF MAP EXPORTS PTY LIMITED (IN LIQUIDATION) (ACN 153 932 202) of RSM Australia Pty Ltd, Level 32, Exchange Tower, 2 The Esplanade Perth WA 6000 WHEREAS on application by JEROME HALL MOHEN, the Liquidator of MAP Exports Pty Limited (In Liquidation) (ACN 153 932 202) (the Company), the Court is satisfied that ROMEO REBELO of 60 Prinsep Road, Jandakot WA 6164 has: 1. concealed or removed property of the Company with the result that the taking of the property into the custody or control of the Liquidator has been and will be prevented or delayed; and 2. concealed, destroyed or removed books of the Company or is about to do so. YOU ARE HEREBY AUTHORISED, with such assistance as is reasonably necessary from members of the Western Australia Police Force and from any other persons, to search for and seize all property listed in the Schedule to this warrant, together with the books of the Company that come within the definition of 'books' in s 9 of the Corporations Act 2001 (Cth), and which is in the possession, custody or control of the respondent ROMEO REBELO and to hold possession of such property and books of the Company seized under this warrant until otherwise directed by order of this Court. AND YOU ARE AUTHORISED in order to seize such property of the Company under this warrant to break open a building, room or receptacle, including at: 1. 60 Prinsep Road, Jandakot WA 6164; 2. 239 Goss Road, Uduc WA 6220; and 3. 442 Goss Road, Uduc WA 6220; where the property is or books are or where you reasonably believe the property to be located. DATED: 15 November 2021 SCHEDULE - PROPERTY OF THE COMPANY Vehicles 1. Grey B.M.W. 5 Series sedan with licence plate '1GAZ929' 2. Grey Mercedes Benz GLS Class station sedan with licence plate 'MAPXPORTS' 3. White Nissan Patrol with licence plate 'H1134' 4. Orange Holden Commodore with licence plate '1GSS913' 5. Black Holden Maloo with licence plate '1 HBP880' 6. Yellow custom box top trailer with licence plate 'H12618' 7. Grey box top trailer with licence plate '1TUE231' Property as otherwise listed in the Company's depreciation schedule for the year ended 30 June 2020 8. South City Honda quad bike 9. Brother Laser Printer 10. Computer system Intel i7 6700 CPU 500GB Samsung SSD Drive 11. Cupboard and bookcase 12. Desk 13. Ipad 64gb DLXNJ7k9G5vw 14. Mobile phone 15. MS Office Windows Tablet Surface Pro 3 16. Office chair – Archer 17. Office chair – Black 18. Office chair – Yorkshire Executive 19. Officehet Printer 20. Shuttle computer system 21. SURFACE PRO BOOK 2/17 22. Woodwinds PRA software 23. Brush polisher 24. Coolroom 25. Electronic eye packing machine 26. Grading machine 27. Komatsu forklift 28. Tractor Annexure B (for purpose of affidavit under paragraph 8 of orders) 1. Grey B.M.W. 5 Series sedan with licence plate '1GAZ929' 2. Grey Mercedes Benz GLS Class station sedan with licence plate 'MAPXPORTS' 3. White Nissan Patrol with licence plate 'H1134' 4. Orange Holden Commodore with licence plate '1GSS913' 5. Black Holden Maloo with licence plate '1 HBP880' 6. Yellow custom box top trailer with licence plate 'H12618' 7. Grey box top trailer with licence plate '1TUE231'