Brennan v DCA Capital Pty Ltd (No 2) [2024] FCA 507

Federal Court of Australia

Brennan v DCA Capital Pty Ltd (No 2) [2024] FCA 507 File number: NSD 368 of 2024

Judgment of: CHEESEMAN J

Date of judgment: 1 May 2024

Catchwords: CORPORATIONS —application for the issue of an arrest warrant in aid of examination summons — whether the evidence demonstrated failure to attend for examination without reasonable cause — whether an order for the issue of an arrest a warrant should be made — whether orders should be stayed — Held: relief granted, not stayed

Legislation: Federal Court (Corporations) Rules 2000 (Cth) r 11.10(2)

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 18

Date of hearing: 1 May 2024

Counsel for Applicants: Mr M L Rose

Solicitor for Applicants: ERA Legal

Counsel for the Third Defendant: Mr R J Boadle

Solicitor for the Third Defendant: Kerrs Law

ORDERS NSD 368 of 2024

BETWEEN: PETER BRENNAN First Plaintiff

MELODY-ANN HASSE Second Plaintiff

MARCELLE BERNARD (and others named in the Schedule) Third Plaintiff

AND: DCA CAPITAL PTY LTD (ACN 629 833 129) First Defendant

DIGITAL COMMODITY ASSETS PTY LTD (ACN 619 068 781) Second Defendant

ASHOD OHAN BALANIAN Third Defendant

order made by: CHEESEMAN J DATE OF ORDER: 1 MAY 2024

THE COURT ORDERS THAT:

1. The interlocutory application dated 1 May 2024 made by the Applicants seeking an order for the issue for the arrest of the Third Defendant be returnable instanter. 2. Pursuant rule 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) for a warrant to be issued and addressed to the Sheriff to arrest the Third Defendant, Ashod Ohan Balanian, and to bring that person before the Court to be examined under section 596A of the Corporations Act 2001 (Cth) about the examinable affairs of the First and Second Defendants, detaining such person in custody in the meantime. 3. Notice of the issue of the warrant referred to in Order 2 be communicated by the Applicants to the Commissioner of the Australia Federal Police for the purpose of the warrant's enforcement. 4. The Applicants are to serve a copy of these orders on the Third Defendant by sending an email to tean@kerrs.law within 1 hour of receipt a copy of these sealed orders. 5. The Third Defendant pay the Applicants' costs of this application, such costs to be taxed on the ordinary basis. 6. The Third Defendant pay the Applicants' costs of hearing before Registrar O'Connor on 1 May 2024 in respect of the summons for examination of the Third Defendant lodged on 15 April 2024, such costs to be taxed on the ordinary basis. 7. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.