In the matter of Property Asset Consultancy Services Pty Ltd trading as Property Asset Consultancy Services Pty Ltd ACN 604 192 583 (in liquidation) [2023] NSWSC 357

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Property Asset Consultancy Services Pty Ltd trading as Property Asset Consultancy Services Pty Ltd ACN 604 192 583 (in liquidation) [2023] NSWSC 357 Hearing dates: 4 April 2023 Date of orders: 4 April 2023 Decision date: 04 April 2023 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Warrant issued for arrest Catchwords: CORPORATIONS – Winding up – Summons to attend court and be examined – Failure to attend at the examination – Issue of arrest warrant Legislation Cited: Corporations Act 2001 (Cth) Supreme Court (Corporations) Rules 1999 (NSW) Cases Cited: Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864 Category: Procedural rulings Parties: Andrew John Scott in his capacity as liquidator of Property Asset Consultancy Services Pty Ltd ACN 604 192 583 (in liquidation) (Plaintiff) Clinton Sarina (Defendant) Representation: Counsel: DJ Edney (Plaintiff) No appearance for the Defendant

Solicitors: Shine Lawyers (Plaintiff) No appearance for the Defendant File Number(s): 2022/321663 Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

Summary 1. HIS HONOUR: This is an application brought urgently in the Duty List (in the absence of the immediate availability of the Corporations Judge) for the issue of an arrest warrant in respect of Clinton Sarina (Mr Sarina) pursuant to r 11.10 of the Supreme Court (Corporations) Rules 1999 (NSW) (the Corporations Rules) and s 597(6) of the Corporations Act 2001 (Cth) (the Act) on the basis of Mr Sarina having failed to attend for examination as summoned pursuant to s 596A of the Act. 2. For the reasons which follow, the Court has determined that is appropriate for a warrant for Mr Sarina's arrest to issue forthwith. 3. Section 596A includes: "596A Mandatory examination The Court is to summon a person for examination about a corporation's examinable affairs if: (a) an eligible applicant applies for the summons; and (b) the Court is satisfied that the person is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending: (i) if the corporation is under administration—on the section 513C day in relation to the administration; or (ii) if the corporation has executed a deed of company arrangement that has not yet terminated—on the section 513C day in relation to the administration that ended when the deed was executed; or (iia) if the corporation is under restructuring—on the section 513CA day in relation to the restructuring; or (iib) if the corporation has made a restructuring plan that has not yet terminated—on the section 513CA day in relation to the restructuring that ended when the plan was made; or (iii) if the corporation is being, or has been, wound up—when the winding up began; or (iv) otherwise—when the application is made." 1. Section 597(6) states: "597 Conduct of examination … (6) A person who is summoned under section 596A or 596B to attend before the Court must not intentionally or recklessly: (a) fail to attend as required by the summons; or (b) fail to attend from day to day until the conclusion of the examination." 1. Rule 11.10 states: "11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and: (a) without reasonable cause, the person: (i) fails to attend at the time and place appointed, or (ii) fails to attend from day to day until the conclusion of the examination, or (iii) refuses or fails to take an oath or make an affirmation, or (iv) refuses or fails to answer a question that the Court directs the person to answer, or (v) refuses or fails to produce books that the summons requires the person to produce, or (vi) fails to comply with a requirement by the Court to sign a written record of the examination, or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The Court may: (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination, and (b) make any other orders that the Court thinks just or necessary." 1. The plaintiff, who is the liquidator of Property Asset Consultancy Services Pty Ltd ACN 604 192 583 (in liquidation) (the Company) was represented today by Mr D J Edney of Counsel. The Court acknowledges the considerable assistance it has received from Mr Edney's written submissions as developed during the course of short oral argument this morning.