In the Matter of Mendarma Pty Ltd (in liquidation) [2006] NSWSC 1306

Reported Decision : (2006) 24 ACLC 1611

New South Wales Supreme Court

CITATION : In the Matter of Mendarma Pty Ltd (in liquidation) [2006] NSWSC 1306

HEARING DATE(S) : 08/11/06

JUDGMENT DATE : 9 November 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 11/09/2006

DECISION : 1. Order that the summons for examination addressed to each of the applicants dated 27 September 2006 be discharged; 2. I direct the parties to provide to my Associate by 5.00 p.m. this Friday their submissions on costs; 3. I reserve costs.

CATCHWORDS : CORPORATIONS – Winding up – Examinations by liquidator – Application to set aside summonses for examination – Applicants' company loaned moneys to company now in liquidation – Moneys secured by mortgage – Applicants gave notice under mortgage and commenced proceedings in Equity Division of Court against company now in liquidation – Directors of company now in liquidation brought cross-claim against applicants and applicants' company – Liquidators appointed to company now in liquidation – Liquidators issued summonses to applicants pursuant to s 596B Corporations Act 2001 (Cth) – Whether summonses should be set aside because applicants unable to give information about "examinable affairs" of company now in liquidation – Words "examinable affairs" as used in ss 9 and 53 Corporations Act considered – Whether summonses should be set aside because they were issued with the improper purpose of conducting a dress-rehearsal of cross examination likely to occur in Equity Division proceedings – Whether summonses should be set aside because liquidators failed to disclose all material matters in affidavit in support of application – Held that affidavit in support of application failed to disclose pendency of Equity Division proceedings – Pendency of Equity Division proceedings a material matter – Application granted.