Town & Country Marketing Pty Limited (In Liquidation) [2003] NSWSC 195

New South Wales Supreme Court

CITATION : Town & Country Marketing Pty Limited (In Liquidation) [2003] NSWSC 195 HEARING DATE(S) : 19 March 2003 JUDGMENT DATE : 19 March 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Examination not to proceed

CATCHWORDS : CORPORATIONS - winding up - examination summons - whether examination to proceed when there is an unresolved conflict in evidence about whether personal service has been effected LEGISLATION CITED : Corporations Act 2001 CASES CITED : Actwane Pty Limited (In liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512 Alexander Raymond Walton - Applicant PARTIES : Josephine Ann Walton - Applicant Hugh Charles Thomas - Respondent FILE NUMBER(S) : SC 2768/02 COUNSEL : G Butterfield, solicitor - Applicants S. Titus, solicitor - Respondent SOLICITORS : Marsdens Law Group - Applicants Carneys Lawyers - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

WEDNESDAY 19 MARCH 2003

2768/02 TOWN & COUNTRY MARKETING PTY LIMITED (IN LIQUIDATION) JUDGMENT 1 HIS HONOUR: On 31 January this year, yesterday and today were set aside by the Registrar for summons concerning the affairs of Town & Country Marketing Pty Limited (In Liquidation). The liquidator of that company wished to examine, on those days, Mr Alexander Walton and Mrs Josephine Anne Walton. In connection with their examination, the liquidator also wished to obtain certain documents from a company with which Mr and Mrs Walton were connected, namely, Neoform Development and Interiors Pty Limited. 2 An order for production of documents directed to Neoform Development and Interiors Pty Limited was obtained from the court on 31 January this year. Summonses for public examination of Mr and Mrs Walton were also obtained from the court on 31 January this year. 3 The process whereby examinations are held is governed by s.596A and following of the Corporations Act 2001. It is common ground between the parties before me that personal service is part of the prerequisites for such examination unless the Court has directed some other manner of service. The court can, of course, order substituted service if personal service is not practical, and ultimately, has power to secure attendance at an examination by issuing a warrant for arrest: Actwane Pty Limited (In liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512. 4 Some attempts were made on behalf of the liquidator to serve Mr and Mrs Walton and Neoform Development and Interiors Pty Limited. The latter company has an address at the same place as the residential address of Mr and Mrs Walton. Those attempts at service were not successful. On 3 March 2003, the solicitor for the liquidator wrote a letter, separately, to each of the people or entity sought to be served. So far as Mr and Mrs Walton were concerned, the letter enclosed the summons for public examination which had been attempted to be served. It stated that the process server "has been unable to do so because the property is a security property with locked gates and dogs. In those circumstances we have written to Hunter Lawyers who have acted for Neoform Development and Interiors Pty Limited in earlier Supreme Court litigation requesting that they obtain instructions to accept service on your behalf and otherwise foreshadowing an application for substituted service will be made. Could you or Hunter Lawyers contact us to that we can make arrangements for service or to facilitate service. If service cannot be effected by the due date we put you on notice that we will seek to adjourn the hearing and to take other steps involving applications for substituted service, to ensure your attendance at court." 5 While the precise verbiage of the letter to Neoform was different, the general message, namely, that a copy of the order for production was enclosed, and that service had not been able to be effected, and that if it could not be effected in time there would be an application for substituted service, was the same. The liquidator has not made any application for substituted service. 6 There is, on the court file, an affidavit of Anthony Daniel Bradley relating to personal service on Mr Walton at 6.10 pm on 5 March 2003, on Mrs Walton at 6.10 pm on 5 March 2003, and on Neoform at the same time. Each of those services is sworn, by Mr Bradley, to have taken place at Lot 1 Olive Street, Minto Heights, which is the residential address of Mr and Mrs Walton. 7 The examinations did not proceed yesterday. Today, Mr Butterfield, solicitor for Mr and Mrs Walton, appeared before the Registrar, and sought the Court's decision that the examinations not proceed today. Mr Butterfield obtained, initially, a brief adjournment to enable him to file some affidavits. Upon reading the affidavits the Registrar referred the matter to me as Duty Judge. 8 The first of those affidavits is an affidavit sworn by Mr Walton. Mr Walton says that he was not personally served by "Stephen Bradley" on 5 March 2003. That name is not the name of the person who deposed to serving the document on Mr Walton – the deponent of the affidavit of service was Anthony Daniel Bradley. 9 Mr Walton goes on to say, though, that: "at about the time Mr Bradley says that service was effected, I was at my solicitor's office, Marsdens Lawyers at Campbelltown, in conference"