Ariff v Fong [2007] NSWCA 183

Reported Decision: 63 ACSR 384(2007) 25 ACLC 1,079

New South Wales Court of Appeal

CITATION: Ariff v Fong [2007] NSWCA 183 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 June 2007

JUDGMENT DATE: 25 July 2007

JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Santow JA at 1

DECISION: 1. Leave to appeal granted; 2. Order the claimants to file their Notice of Appeal within 7 days of the making of these Orders and to pay the filing fee thereon; 3. Appeal allowed; 4. Set aside the orders made by the trial judge on 3 October 2006; 5. Order that the claimants have access to the affidavit filed by the opponent in support of the issue of examination summonses to Stuart Karim Ariff, Jo Drysdale and John Sewerle; 6. Order that, subject to any other order, access to the affidavit be limited to access by the claimants' legal representatives; 7. Grant liberty to the claimants' legal representatives to apply to a judge in the Equity Division of the Supreme Court for any other order in respect of access to those documents, such liberty to be exercised on seven days' notice to the opponent; 8. Order that the opponent pay the costs of the appeal and of the applications before Barrett J; 9. The opponent to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

CATCHWORDS: CORPORATIONS – Corporations Act 2001 (Cth) Pt 5.9 - examination summonses – application by eligible applicant for examination of persons about a corporation's examinable affairs – application for examination summonses to be supported by affidavit – affidavit not available for inspection except so far as court orders – court must be satisfied claimants have arguable case that examination summonses issued for an improper purpose before inspection allowed – whether trial judge erred in finding claimants had not shown arguable case of improper purpose