Federal Court of Australia Colbran, in the matter of Original Co. Pty Ltd (in liquidation) v Wight [2022] FCA 323 File number: VID 64 of 2021 Judgment of: ANASTASSIOU J Date of judgment: 1 April 2022 Catchwords: CORPORATIONS – application for issue of arrest warrant – whether defendant failed to attend for examination without reasonable cause – whether Court's discretion weighs in favour of issuing warrant – warrant for arrest issued Legislation: Federal Court (Corporations) Rules 2000 (Cth) r 11.10 Corporations Act 2001 (Cth) s 596A Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial and Corporate Insolvency Number of paragraphs: 14 Date of hearing: 21 February 2022 Solicitor for the Plaintiff: Mr J. Noonan of SLF Lawyers Counsel for the Defendant: Defendant did not appear ORDERS VID 64 of 2021 BETWEEN: DAVID MUTTON IN HIS CAPACITY AS LIQUIDATOR OF ORIGINAL CO. PTY LTD (IN LIQUIDATION) Plaintiff AND: BRETT ASHLEY WIGHT Defendant order made by: ANASTASSIOU J DATE OF ORDER: 1 april 2022 THE COURT ORDERS THAT: 1. The name of the plaintiff in the proceeding be amended to "Jonathon Colbran in his capacity as liquidator of Original Co. Pty Ltd (In liquidation) A.C.N. 159 245 486". 2. Pursuant to r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) a warrant issue addressed to the Sheriff to arrest Brett Ashley Wight and to bring that person before the court to be examined under section 596A of the Corporations Act 2001 (Cth) on oath or affirmation about the examinable affairs of Original Co. Pty Ltd (In liquidation) A.C.N. 159 245 486, detaining such person in custody in the meantime. 3. The examination of Brett Ashley Wight be adjourned to a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ANASTASSIOU J: 1 By interlocutory process dated 18 February 2022, the Plaintiff, David Mutton in his capacity as liquidator of Original Co. Pty Ltd (in liquidation) (the Company), seeks an order pursuant to r 11.10(2) of the Federal Court (Corporations) Rules 2000 (Cth) for the issue of an arrest warrant addressed to the Sheriff to bring Brett Ashley Wight, the Defendant, before the Court to attend an examination under s 596A of the Corporations Act 2001 (Cth). 2 The Plaintiff relies on the following materials in support of his application: (1) the affidavit of Mr Stephen Papst sworn on 22 April 2021 (First Papst Affidavit); (2) the affidavit of Mr Charles Benjamin Ampt sworn on 16 August 2021; (3) the affidavit of Mr Stephen Papst sworn on 10 September 2021 (Second Papst Affidavit); (4) the affidavit of Mr Braydon Alex McGregor affirmed on 7 October 2021; (5) the affidavit of Mr Stephen Papst sworn on 8 October 2021 (Third Papst Affidavit); (6) the affidavit of Ms Adrianna Simone Fugaro affirmed on 8 December 2021; (7) the affidavit of Mr Braydon Alex McGregor affirmed on 6 December 2021; (8) the affidavit of Mr David Mutton affirmed on 11 February 2022; (9) the affidavit of Mr Jack Paul Noonan sworn on 18 February 2022 (First Noonan Affidavit); (10) the affidavit of Mr Jack Paul Noonan sworn on 4 March 2022 (Second Noonan Affidavit); and (11) the Plaintiff's written submissions dated 14 December 2021 and the plaintiff's further written submissions dated 18 February 2022. 3 I am satisfied that the Defendant has been served with the summons for examination as well as other relevant orders, and that in the absence of any explanation on the part of the Defendant, the Defendant's failure to attend Court for examination was without reasonable cause. Accordingly, the arrest warrant should be issued. background 4 On 15 February 2021, the Plaintiff filed an originating process seeking a summons to be issued for the examination of the Defendant, and the production of certain documents and books relating to the Company. The Plaintiff sought to inquire about the Company's examinable affairs, including the debts incurred by the Company. That application was supported by the affidavit of Mr David Mutton affirmed on 11 February 2022, in which Mr Mutton deposed that the Company was wound up by order of this Court in proceeding numbered VID1331/2017 on 6 February 2018 and Mr Mutton was appointed as liquidator of the Company. 5 Since Mr Mutton's appointment he has attempted to contact the Defendant, who was the sole director of the Company from 19 November 2012 up to the date of the liquidation, to obtain the books and records of the Company. No financial records were obtained or provided by the Defendant nor was a completed report on Company Activities and Property obtained. Accordingly, Mr Mutton deposed that: (1) he determined that the Company failed to maintain or retain adequate financial records in order to comply with s 286 of the Corporations Act 2001 (Cth); and (2) pursuant to s 588E(4) of the Act, he presumed the Company was insolvent from its incorporation, being 28 June 2012, until the date it was placed into liquidation. Mr Mutton deposed that between 6 February 2018 and 7 February 2020, various demands and requests were sent to the Defendant without response. 6 On 26 March 2021, Judicial Registrar Edwards ordered that a summons addressed to the Defendant be issued pursuant to s 596 of the Act. In the First Papst Affidavit, Mr Papst deposed that he made numerous attempts to personally serve the summons on the Defendant at, Unit 11B, 635 – 643 St Kilda Road, Melbourne (St Kilda Road Property) between 6 March 2021 and 18 April 2021. Mr Papst was unable to effect service because he was unable to receive a response from the Defendant via the intercom system. In the Second Papst Affidavit, Mr Papst deposed that on 9 March 2021 he spoke with the Defendant's mother, who answered the intercom for Unit 11B and confirmed she was the Defendant's mother. 7 The return of the summons was repeatedly adjourned to a date to be fixed, as the Plaintiff was unable to personally serve the Defendant. Accordingly, the Plaintiff filed an interlocutory process seeking substituted service on 27 August 2021. In support of this application, Mr Ampst, in his affidavit sworn on 16 August 2021, deposed that the Defendant was the sole proprietor of the St Kilda Road Property (and as at 22 February 2022 remains the sole proprietor) and that the Defendant listed the St Kilda Road address as his address for the purposes of voting. 8 On 23 September 2021, Judicial Registrar Edwards made orders dispensing of personal service and ordered that the summons for examination be listed for hearing and that her orders, be served on the Defendant by express post and by leaving the documents in the letterbox or affixing them to the front door of the St Kilda Road Property. The return of the summons was listed for 19 November 2021 for the production of documents and the public examination was listed on 10 December 2021 (which was later adjourned to 15 December 2021). 9 On 28 September 2021, the Defendant was served the summons and relevant orders via registered express post. On 30 September 2021, these documents were also delivered to the letterbox of the St Kilda Road Property. 10 The Defendant failed to appear before the Court on 19 November 2021. Judicial Registrar Edwards made orders on that day notifying the Defendant that if he failed to appear before the Court for examination, the Plaintiff would be permitted to make an application for the issue of an arrest warrant. This order was posted to the St Kilda Road Property and left in the mailbox on 29 November 2021 and 30 November 2021 respectively. 11 On 15 December 2021, the Defendant failed to appear before the Court. Accordingly, the Plaintiff made the present application. 12 Having regard to the above, I am satisfied that the Defendant resides at the St Kilda Road Property and has been served with the summons and relevant orders such that it is clear that the Defendant is aware that he has been summoned to attended Court for examination. Further, the Defendant was put on notice, and served with the orders stating that the present application may be made against him should he not attend the examination. 13 Since the appointment of the Plaintiff as liquidator of the Company, extensive efforts have been made to contact the Defendant to obtain the relevant financial records of the Company without any response. Unless the Defendant complies with the issued summons for examination, the Plaintiff will be unable to complete the orderly and proper winding up of the Company. disposition 14 I am therefore satisfied that the arrest warrant be issued pursuant to r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) Rules on the basis of the Defendant's failure to attend Court in compliance with the summons issued on 29 March 2021, without reasonable cause. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou. Associate: Dated: 1 April 2022