Bauhaus Pyrmont Pty Limited (In Liq) [2006] NSWSC 742

New South Wales Supreme Court

CITATION : Bauhaus Pyrmont Pty Limited (In Liq) [2006] NSWSC 742

HEARING DATE(S) : 06/06/06 Written submissions: 26/06/06, 11/07/06, 13/07/06

JUDGMENT DATE : 25 July 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Order for production of books and records. Interlocutory processes otherwise dismissed. No order as to costs.

CATCHWORDS : CORPORATIONS - winding up - liquidators - attempt to invoke court's supervisory jurisdiction over liquidators in what are really questions of case management - exercise of liquidator's powers - whether abuse of process

LEGISLATION CITED : Corporations Act 2001 (Cth), ss.530B, 536,

CASES CITED : Burns Philp Investments Pty Ltd v Dickens (1993) 10 ACSR 626 Re Bauhaus Pyrmont Pty Ltd [2006] NSWSC 534

Andrew Timothy Roberts, Ross Arnold McDiven, Karen Maree Pederson - Applicants PARTIES : Andrew Hugh Jenner Wily - Respondent Multiplex Limited - Non-party

FILE NUMBER(S) : SC 1486/06

COUNSEL : Mr S.A. Kerr/Mr P. Kuleski - Applicants and Multiplex Ltd Mr C.C. Branson QC/Mr G. Lucarelli - Respondent

SOLICITORS : Clayton Utz - Applicants and Multiplex Ltd Landerer & Company - Respondent

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

BARRETT J

TUESDAY, 25 JULY 2006

1486/06 IN THE MATTER OF BAUHAUS PYRMONT PTY LIMITED (IN LIQUIDATION) JUDGMENT 1 The main issue to be agitated in these proceedings is whether Mr Wily (whom I shall call "the liquidator") should be removed as liquidator of Bauhaus Pyrmont Pty Limited ("BP"). The proposition that he should be removed is advanced by three persons who were directors of BP up to 20 April 2002. Those persons were associated with the Multiplex Group by which all the shares in BP were sold on that date. The three persons in due course became the recipients of examination summons issued upon the liquidator's application. This appears to be the source of their interest in whether he should continue in office. 2 There have been a number of interlocutory applications. Several have already been disposed of (see, for example, Re Bauhaus Pyrmont Pty Ltd [2006] NSWSC 543). This judgment deals with three further interlocutory applications, being (a) an application expressed to be under s.536 of the Corporations Act 2001 (Cth) by the three persons just mentioned (Mr A.T. Roberts, Mr R.A. McDiven and Ms K.M. Pederson) for an order that the liquidator give them access to all of the accounting books and records of BP since 20 April 2002 (or, in the alternative, that the liquidator file and serve an affidavit as to what books and records are in his possession and the action or inquiries he has taken or made to gain access to, or possession of, such books and records) – "the Books and Records Application"; (b) an application also expressed to be made under s.536 by the same applicants for an order that the liquidator produce to them all documents containing records of "time incurred by" parties and staff of the liquidator's firm in relation to the winding up of BP – "the Time Sheets Application"; and (c) an application by a non-party, Multiplex Limited ("Multiplex"), for an order that it be joined as a party for the purpose of pursuing the application for an order that a notice served by the liquidator on Multiplex be set aside – "the Multiplex Application"). 3 I shall deal with these applications in turn. First, however, it is appropriate to say something about the way the Books and Records Application and the Time Sheets Application are advanced. As I shall mention in greater detail presently, Austin J made certain directions of relevance on 27 April 2006. It is clear that those directions were of a case management kind relevant to administration of the pre-trial phase of the proceedings in which removal of the liquidator is sought. In the subsequent interlocutory processes by which the Books and Records Application and the Time Sheets Application were initiated, however, the applicants purported to rely on s.536 of the Corporations Act. It is pertinent to set out that section in full: