Sheahan & Ian Lock as administrators of Valofo Pty Ltd [2009] NSWSC 1039

New South Wales Supreme Court

CITATION : Sheahan & Ian Lock as administrators of Valofo Pty Ltd [2009] NSWSC 1039

HEARING DATE(S) : 14/09/09

JUDGMENT DATE : 14 September 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 14 September 2009

DECISION : Order in accordance with para 6 of the interlocutory process.

CATCHWORDS : CORPORATIONS – examination summons – application for access to affidavit filed by administrators on their application for examination summonses – applicant demonstrates arguable case for an order that examination summons be set aside - no prejudice to administrators if affidavit disclosed – affidavit made available for inspection

LEGISLATION CITED : Corporations Act 2001 (Cth)

Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 CASES CITED : Ariff v Fong [2007] NSWCA 183; (2007) 25 ACLC 1079 Flanders v Beatty (1995) 16 ACSR 324

PARTIES : John Sheahan and Ian Lock as administrators of Valofo Pty Ltd

FILE NUMBER(S) : SC 4058/09

COUNSEL : Applicants: S Burchett Respondent: P Braham

SOLICITORS : Applicants: Purcell Insolvency Lawyers Respondent: n/a

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

WHITE J

Monday, 14 September 2009

4058/09 John Sheahan and Ian Lock as administrators of Valofo Pty Ltd JUDGMENT 1 HIS HONOUR: The applicant, Mr Peter Londish, seeks, amongst other relief, a declaration that the respondents have not been validly appointed as administrators of Valofo Pty Ltd. 2 On 13 August 2009, a summons for examination of the applicant and orders for production of documents were issued by the Court on the application of the respondent administrators. Mr Peter Londish also seeks orders that the summons for examination and the orders for production be set aside. Those applications are listed for hearing on 2 October. 3 In the present application, Mr Peter Londish seeks access to the affidavit filed by the administrators on their application for summonses under s 596B of the Corporations Act 2001 (Cth). 4 In Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36, Basten JA said at [141]: "... As is illustrated by Fetzer v Irving as Liquidator of Mawson KLM Holdings Pty Ltd (In Liq) (2005) 91 SASR 54 at 59 [27]–[28], an applicant for disclosure of the affidavit will generally be able to obtain access to the affidavit if he or she can demonstrate an arguable case that the issue of the summons exceeded the power of the court under s 596B and that access to the affidavit is likely to assist in determining the correctness of the challenge. ... If [the claimants] had an arguable case, they had good prospects of obtaining access to the affidavit. ... "