Supreme Court New South Wales Medium Neutral Citation: In the matter of Asheville Pacific Pty Limited [2016] NSWSC 1969 Hearing dates: Friday, 12 February 2016 Date of orders: 12 February 2016 Decision date: 12 February 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Order to issue arrest warrant refused Catchwords: CORPORATIONS – examinations relating to insolvency – procedural matters – where arrest warrant sought for failure to attend court for examination – proving service of summons on examinee – where evidence identifying examinee was hearsay of unknown person – summons not left in presence of examinee if server merely described nature of document to examinee but failed to hand over the documents – placing documents in letterbox is not leaving it in examinee's presence Legislation Cited: (NSW) Civil Procedure Act 2005, s 97 (NSW) Supreme Court (Corporations) Rules 1999, r 11.10, r 11.4 Cases Cited: Struthers; Re PACI Pty Ltd (No 3) [2005] NSWSC 1113 Category: Procedural and other rulings Parties: Angus Carnegie Gordon in his capacity as liquidator of Asheville Pacific Pty Ltd (in liquidation)(plaintiff) Representation: Counsel: T Orlizki (solicitor) File Number(s): 2015/376015 Judgment (EX TEMPORE) 1. HIS HONOUR: Para 3 of the interlocutory process seeks an order – said to be pursuant to (NSW) Civil Procedure Act 2005, s 97, but for an examination summons under the (CTH) Corporations Act 2001, the appropriate head of power is (NSW) Supreme Court (Corporations) Rules 1999, r 11.10 – for the issue of a warrant for the arrest of Jeffrey Keith Marriott for disobedience of an order to attend court for examination under Corporations Act, s 597B. 2. Obviously, the first step on such an application requires establishing that the examinee has been summoned to attend for examination. That involves proving service of the examination summons on the examinee. Supreme Court (Corporations) Rules, r 11.4, provides: An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 1. While substituted service may be ordered if personal service is impractical, no direction of the kind referred to in r 11.4 has, to this point, been made. 2. (NSW) Uniform Civil Procedure Rules 2005, r 10.21 describes how personal service is effected, namely by: Leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. 1. The evidence of the licensed process server Stephen Goodwin, in an affidavit sworn on 25 January 2016, is that he attended the premises Unit 19, 4-6 Ethel Road, Kirrawee – which, according to other evidence, is the principal place of business of a company of which Jeffrey Keith Marriott is an officer – and said to a male person, "I am looking for Jeffrey Keith Marriott." That person pointed to a man driving a forklift, and said, "That is him driving the forklift." Mr Goodwin approached the forklift driver, and said, "Are you Jeffrey Keith Marriott, the person referred to in these documents?" The forklift driver answered, "No". Mr Goodwin said, "I have been told by the other employee that you are Jeffrey Keith Marriott. I have a letter and summons for examination for you". The forklift driver drove away before Mr Goodwin could hand him the documents, and he left the documents in the letterbox. 2. That evidence does not establish that the document was left with Jeffrey Keith Marriott. First, the evidence identifying the person said to be Jeffrey Keith Marriott is hearsay of an unknown person. Even if evidence on information and belief were admissible for this purpose, it would be necessary to identify the source of the information beyond "an unnamed male person present at the site". 3. Secondly, even though the process server described the nature of the document as a summons for examination, it cannot be said that he left it in the presence of the forklift driver, who drove away before he could be handed the documents. Placing the documents in the letterbox does not amount to leaving them in his presence. 4. In those circumstances, I do not think I can be satisfied that Jeffrey Keith Marriott has been summoned to attend for examination – the first of the three matters that must be established on an application under r 11.10. [1] Accordingly, I decline to make the order sought in paragraph 3 of the interlocutory process. I refer the balance of the interlocutory process to the Registrar. ********** Endnote 1. Struthers; Re: PACI Pty Ltd (No 3) [2005] NSWSC 1113. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2018