Anthony Milton Sims (as Liquidator of Liverpool Hotels Pty Limited) [2009] NSWSC 885

New South Wales Supreme Court

CITATION : Anthony Milton Sims (as Liquidator of Liverpool Hotels Pty Limited) [2009] NSWSC 885

HEARING DATE(S) : 25 and 26 August 2009 JURISDICTION : Equity Division

JUDGMENT OF : Bergin CJ in Eq

EX TEMPORE JUDGMENT DATE : 26 August 2009

DECISION : Stay granted

CATCHWORDS : CORPORATIONS - Where corporation reinstated without notice to directors - where Examination Summonses issued to director - application for access to liquidator's affidavit - application for stay of Examination Summonses

LEGISLATION CITED : Corporations Act 2001

CASES CITED : Miltonbrook Pty Limited v Westbury Holdings Kiama Pty Ltd (2008) 65 ACSR 545

PARTIES : John Palasty (Applicant) Anthony Milton Sims (Plaintiff/Respondent)

FILE NUMBER(S) : SC 3328/09

COUNSEL : NJ Allan (Applicant) N Cotman SC/RA Parsons (Plaintiff/Respondent)

SOLICITORS : Ziman & Ziman Solicitors (Applicant) Dennis & Company (Plaintiff/Respondent)

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

BERGIN CJ in Eq

26 AUGUST 2009

3328 OF 2009 ANTHONY MILTON SIMS (AS LIQUIDATOR OF LIVERPOOL HOTELS PTY LIMITED) JUDGMENT 1 The applicant, John Palasty, moves for order 12 in the Interlocutory Process filed on 20 August 2009 that until the determination of the other relief sought in the Interlocutory Process, all examinations presently scheduled for this week be stayed. The respondent to the application is the plaintiff, Anthony Milton Sims (as Liquidator of Liverpool Hotels Pty Limited). This application is brought consequent upon a hearing yesterday in respect of the order sought in paragraph 2 of the Interlocutory Process that Mr Palasty be granted access to the affidavits in support of the plaintiff's application for the issue of the Examination Summonses addressed to the various persons identified in the Interlocutory Process. 2 In support of his application in respect of the order in paragraph 2 in the Interlocutory Process for access to the affidavit, Mr Palasty relied upon his affidavit of 20 August 2009 and material was tendered by the plaintiff which became exhibit 1. 3 Yesterday afternoon I indicated to the respective counsel, and in particular Mr Cotman SC, counsel for the plaintiff, that it appeared to me that there was a serious issue or an arguable case in respect of the liquidator's conduct such that I would, in a preliminary way, be minded to grant access to the affidavit as sought in paragraph 2 of the Interlocutory Process. For various reasons, Mr Cotman was to take further instructions overnight and this morning indicated that there is no resistance to the applicant, Mr Palasty, having access to the affidavit of the liquidator in support of the application for the issue of the Examination Summonses. I have made orders to that effect. 4 The application for a stay of the examinations is sought on the basis that it will enable a fair hearing of the further matters in the Interlocutory Process. Mr NJ Allan, of counsel, who appears for Mr Palasty, submits that there are serious issues to be tried in respect of a number of matters in the Interlocutory Process. 5 This is not a straight forward case. The Company, Liverpool Hotels Pty Ltd, was reinstated after having been deregistered when the present liquidator was the then liquidator of the Company. Reinstatement pursuant to section 601AH(2) of the Corporations Act 2001 was ordered on 7 April 2009. It is common ground that there was no notification given to the directors, one of whom is Mr Palasty, at the time of the application for reinstatement. There is within the Interlocutory Process an application to set aside the reinstatement order which is to be heard at a later time. The applicant relies upon the following paragraphs of Spigelman CJ's judgment in Miltonbrook Pty Limited v Westbury Holdings Kiama Pty Ltd (2008) 65 ACSR 545: