ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton [2020] NSWCA 157

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton [2020] NSWCA 157 Hearing dates: 11 March 2020 Date of orders: 30 July 2020 Decision date: 30 July 2020 Before: Bathurst CJ; Bell P; Leeming JA Decision: (1) Grant the applicant leave to appeal. (2) Direct the applicant within 14 days to file a notice of appeal in the form of the draft notice of appeal contained in Tab 6 of the White Folder filed in the proceedings. (3) Allow the appeal. (4) Set aside the orders made by Black J on 2 December 2019 save for Orders 1-3 and 16-17 and in lieu make the following orders: (a) The orders made by the Registrar on 15 May 2019 be discharged. (b) The plaintiffs' (respondents') application made on 31 October 2019 pursuant to s 68 of the Civil Procedure Act 2005 (NSW) for the production of documents by the appellant and KPMG be dismissed. (c) The respondents pay the appellant's costs of the proceedings in the Court below. (5) The respondents pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act 1951 (NSW) if eligible. Catchwords: CORPORATIONS – Winding up – Public examinations of directors, officers and others – Application to set aside summons to attend court and be examined - Whether the purpose for which the examination was sought was foreign to the purpose for which powers to order an examination and production of documents were conferred. Legislation Cited: Bankruptcy Act 1542, 34 & 35 Hen 8, c 44 Civil Procedure Act 2005 (NSW) Companies Act 1862, 25 & 26 Vict, c 89 Companies Act 1874 (NSW) Companies Act 1899 (NSW) Companies Act 1936 (NSW) Companies (NSW) Code Companies (Western Australia) Code Companies (Winding Up) Act 1890, 53 & 54 Vict, c 63 Corporate Law Reform Act 1992 (Cth) Corporations Act 1989 (Cth) Corporations Act 2001 (Cth) Corporations Law (Cth) Corporations (NSW) Act 1990 Joint Stock Companies Winding Up Act 1844, 7 & 8 Vict, c 111 Suitors Fund Act 1951 (NSW) Cases Cited: Boys v Quigley (2002) 26 WAR 454; [2002] WASCA 99 Douglas-Brown v Furzer (1994) 11 WAR 400 Flanders v Beatty (1995) 16 ACSR 324 Gould v Brown (1998) 193 CLR 346; [1998] HCA 6 Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301; (1994) 120 ALR 262 Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91 Meteyard v Love (2005) 65 NSWLR 36; [2005] NSWCA 444 Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 Pilmer v Duke Group Ltd (In liq) (2001) 207 CLR 165; [2001] HCA 31 Re BPTC Ltd (in liq) (1992) 7 ACSR 539 Re Compass Airlines Pty Ltd (1992) 35 FCR 447 Re Excel Finance Corp Ltd (Receiver and Manager Appt); Worthley v England (1994) 52 FCR 69 Re Gold Co (1879) 12 ChD 77 Re Hugh J Roberts Pty Ltd (in liq) [1970] 2 NSWR 582 Re Marvin Manufacturers (Aust) Pty Ltd; New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 Re New Cap Re Insurance Corp Holdings Ltd [2001] NSWSC 835 Re New Tel Ltd (in liq); Evans v Wainter Pty Ltd (2005) 145 FCR 176; [2005] FCAFC 114 Re Silkstone and Dodsworth Coal and Iron Company (Limited); Whitworth's Case (1881) 50 LJ Ch 752 Sandhurst Trustees Ltd v Harvey (2004) 88 SASR 519; [2004] SASC 157 Sir John Moore Gold Mining Co (1837) 37 LT 242 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Texts Cited: Percy Spender and Gordon Wallace, Company Law and Practice (1937, The Law Book Co. of Australasia Ltd) Category: Principal judgment Parties: ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) (appellant) Michael Thomas Walton (first respondent) Anthony Bogan (second respondent) KPMG (interested party) Colin Galbraith (interested party) Representation: Counsel: M A Izzo SC with T E O'Brien (appellant) M Henry SC with J Shepard (first and second respondents) P Herzfeld with A Emmerson (KPMG) P Jammy (Colin Galbraith)