Examinations under sections 596A and 596B of the Corporations Act 2001
Available dates
Examinations are now held Monday to Friday at 10 am. Most dates for the balance of 2008 after May are available.
We sometimes have cancelled dates that become available. We can arrange for an urgent examination at short notice.
New Developments
A specific form has been approved for orders for production (UCPR Form 23A).
Contact information
For information about available dates, including dates for urgent matters, and dates for lengthy examinations contact Senior Deputy Registrar Flaskas or Senior Deputy Registrar Musgrave or contact the Supreme Court on 9230 8111 or by email (see below).
Examination procedure
The Corporations Act 2001 (Part 5.9), the Supreme Court (Corporations) Rules (Division 11), and the Uniform Civil Procedure Rules 2005 govern the procedure for these examinations.
Chamber appointments
The summons and orders for production are issued in a chamber appointment. Practitioners wishing to reserve dates and arrange a chamber appointment should contact the Court (see above for contact details).
Chamber appointments are available on Wednesday afternoons:
Urgent chamber appointments can be arranged on application.
Filing fees
From 1 July 2007 the NSW Supreme Court fee (individual rate) for filing an initiating process is $685, and for an interlocutory process the fee is $158.
Relevant case law
New South Wales Supreme Court cases that are relevant to examinations under the Corporations Act 2001 are:
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PRACTICE & PROCEDURE - subpoenaed documents - claims to privilege - application of Evidence Act principles under UCP Rules – EVIDENCE - client legal privilege - liquidator's examination proceedings - litigation funding agreement - participation by funder in conferences and correspondence with lawyers - whether privileged under s 118 or s 119 - whether privilege waived under s 122(2) or (4) - common interest privilege under s 122(5)(b) - loss of privilege through abuse of power under s 125 - whether grounds to attribute creditor's improper purpose to liquidator |
| co-operative societies - application of Corporations Act provisions - CORPORATIONS - winding up - examination of officers - examination summonses previously issued but no longer extant - whether liquidator entitled to obtain issue of further examination summonses directed to same persons - whether also entitled to order that some of such persons file affidavit of assets and liabilities - concept of "examinable affairs" - whether persons concerned should have opportunity to be heard. |
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application to set aside examination summonses made pursuant to s596B of the Corporations Act - whether summonses satisfied the jurisdictional requirements of s596B – whether claimants ‘may be able to give information about the examinable affairs of the corporation’ - meaning of ‘examinable affairs’ – whether s596B operates so as to exclude client legal privilege – client legal privilege under the Evidence Act 1995 (NSW) – whether significant number of communications the subject of the summonses and orders for production were likely to be privileged – whether summonses were oppressive or otherwise an abuse of process - PRIVILEGE – consideration of sections 117 and 118 the Evidence Act 1995 (NSW) – whether Evidence Act 1995 (NSW) or Evidence Act 1995 Act (Cth) applies – whether Corporations Act excludes operation of Evidence Act –whether client legal privilege provides an immunity from answering questions under s596B of the Corporations Act – whether an examination is a ‘proceeding’ for the purposes of the Evidence Act – whether the reports the subject of a possible claim for privilege obtained by solicitor acting on instructions of client – consideration of use of solicitors to obtain reports as a mere ‘stratagem’ or ‘sham’ – whether claimants agents of the client or agents of its solicitors – consideration of the definitions of ‘agent’, ‘client’ and ‘lawyer’ in s117 of the Evidence Act and under common law - PROCEDURE – order for production under Part 36 rule 12 of the Supreme Court Rules – whether privilege attaches to documents the subject of the order – consideration of Part 36 rule 13 - whether significant number of communications the subject of the orders for production were likely to be privileged – whether orders were oppressive or otherwise an abuse of process |
| security for costs - no matter of principle |
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CORPORATIONS - COSTS - non-party - whether power to order costs against non-party to proceedings under Corporations Act 2001 ( Cth) - proceedings under this Act - "party to the proceedings" - relationship between Corporations Act 2001 (Cth) s1335(2) and Civil Procedure Act 2005 (NSW ) s 98 and Uniform Civil Procedure Rules 2005 (NSW) r 42.27 - whether examinees party to proceedings. |
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examination by liquidator - whether court should entertain application for payment made by examinee before examination complete - whether evidence of co-operation by liquidator with outside party indicates arguable case of abuse of process - whether s.536 is appropriate vehicle for abuse of process claim against liquidator - s.536 procedure discussed.
- Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864
| external administration - winding up - liquidator's examination - failure of examinee to attend when summoned - warrant for arrest - grounds for issue - relevant discretionary considerations - whether order should be made ex parte - whether warrant should lie in the Registry before execution - whether provision should be made in warrant for examinee to give security for attendance - PROCEDURE - warrant for arrest to secure attendance of witness - grounds for issue - relevant discretionary considerations - whether order should be made ex parte - whether warrant should lie in the Registry before execution - whether provision should be made in warrant for witness to give security for attendance |
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- Bridgeport - Advisers & Asset Managers Pty Ltd [2005] NSWSC 757
Examinees' application for orders discharging examination summonses and setting aside orders for production refused. Applications for review of various decisions of deed administrators refused - examinations under Part 5.9 - whether examinations to be undertaken for impermissible purposes - whether abuse of process - whether three day time limit in rule 11.5(2) may be extended - CORPORATIONS - deed of company arrangement - deed administrators defer consideration of claimants claim - whether court should review administrators' decisions
Declaration that transcripts of examinations are written records made under s.597(13) - winding up - examination of officers - statutory right under s.597(14) to inspect "written record made under subsection (13 - s.597(13) contemplates order for making of written record and requirement that examinee sign it - where latter imposed but former not explicitly made - whether, having regard to actual course of events, words spoken included or implied order for making of written record - meaning of "order" in the particular context
winding up - examination of officers - rights to inspect written record of question and answers made under s.597(13) - whether s.597(14A) creates rights or is
merely concerned with payment of fees - distinction between "records of the examination", "written record made under subsection (13)" and "transcript
of an examination" - whether direction under s.596F(1)(e) may deny s.597(14A) right to inspect - "subject to"
summary dismissal - default in complying with Court orders - discovery before particulars - not available without evidence where plaintiff liquidator had the benefit of examinations in the winding up after service of statement of claim
Examination- Examination of officers of and experts retained by solicitors for company's insurer- Whether oppressive or abuse of process. Privilege- Insurer's solicitors retain experts after disaster but before claim made- Whether reports privileged -Application to set aside summonses for examination dismissed
Evidence- Client Legal Privilege - Express waiver - Evidence Act 1995, s 122(2) - Failure to claim privilege for documents produced under order of the court - Time pressures preventing all but skimming of documents - Whether documents knowingly and voluntarily disclosed - Whether documents subject to implied waiver
Application for an order adjourning examination - Whether use of examination summons an abuse of process - Proposed Federal Court proceedings to set aside summons - Whether comity required adjournment.
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Reported: 49 ACSR 166
winding up - examination summonses issued by special purpose liquidator - no benefit in examinations at this stage |
Voluntary administration - Summons for examination of employees of proposed defendant - Proposal for litigation funding - Whether proposed arrangement champertous - Whether summons for proper purpose.
examination of person connected with corporate collapse - application for order prohibiting mass media from publishing changed surname of examinee and her children - factors relevant to whether discretion to make such an order should be exercised - Corporations Act 2001 (Cth)
winding up - examination under s.596B - whether examination summons should be issued - whether court should issue letter of request seeking assistance of foreign court in conducting examination - conditions to be met before letter of request is ordered
- Re Pan Pharmaceuticals Ltd [2003] NSWSC 1204
- winding up - public examination of officers - application for direction precluding publication of certain questions and answers - whether grounds exist - whether direction may be made before questions asked and answered
- Total Entity Pty Limited (In Liquidation) [2003] NSWSC 924
Reported: (2003) 47 ACSR 577
- winding up - liquidator's examination - order for production of documents - whether court has jurisdiction to set aside - whether oppressive - whether order should be set aside - whether confidentiality order should be made as to some documents - whether liquidator should be ordered to pay expenses in advance of production
- Apple Computer v Wily [2003] NSWSC719 revised - 2/09/2003
Reported: (2003) 46ASCR 729
- winding up - application for order removing liquidator or directing inquiry into his conduct - alleged partisanship of liquidator - alleged failure to cooperate with major creditor - alleged lack of independent decision making - whether examination summonses should be set aside or confined
- Re: Eurostar Pty Ltd (In Liquidation) (Receivers and Managers Appointed) & Ors [2003] NSWSC 633
- receivers managers and controllers - when receiver appointed "eligible applicant" for purpose of conducting examinations under Part 5.9 Corporations Act 2001 - circumstances for receiver to disclose documents produced under compulsory process for such an examination - CORPORATIONS - winding up - "eligible applicant" appointed to conduct examinations - circumstances in which that "eligible applicant" can disclose documents produced on compulsory process for purpose of the examination
- In the matter of Allstate Explorations NL [2003] NSWSC 626
Reported: (2003) 45 ACSR 379
- deed of company arrangement - deed administrators seek to examine officer of insurer after insurer withdraws from indemnifying entity in dispute with company - whether examination relates to examinable affairs and is an abuse of process
- Domino Hire v Pioneer Park [2003] NSWSC 496
- winding up - application for removal of liquidator - whether cause shown - independence and impartiality, in fact and in perception - whether liquidator should be replaced with a liquidator prepared to appoint himself as administrator so that the deed of company arrangement may be propounded - whether Court should consider application for leave to permit liquidator to appoint himself administrator before the liquidator is appointed
- ASIC v Karl Suleman Enterprizes Pty Ltd (in liq) [2003] NSWSC 278
- winding up - liquidator's examination - failure of witness to attend when summoned - "reasonable cause" - costs of liquidator's application for bench warrant
- Re Clutha Limited (in liquidation) [2003] NSWSC 235
Reported: 44 ACSR 734
- winding up - Application to set aside summons for examination and order for production - Inquiry as to remaining level of indemnity under policy indemnifying officers of the corporation - Proceedings by liquidator against officers - Whether inquiry oppressive - Order for production issued to insurer and summons for examination to its officer - Whether inquiry limited to defendants or potential defendants - A creditor funding liquidator and acquiring debts from other creditors - Whether inquiry in aid of third party - Whether abuse of process - Directions as to matters to be inquired into at examination. - PROCEDURE - Discovery - Whether access to affidavit in support of summons for examination should be granted - Covering up portions of documents said to be privileged or confidential
- Town & Country Marketing Pty Limited (in liq) [2003] NSWSC 195
- winding up - examination summons - whether examination to proceed when there is an unresolved conflict in evidence about whether personal service has been effected
- ASIC v Karl Suleman Enterprizes: Application of Stoliar [2003] 163
Reported: (2003) 44 ACSR 694
- winding up - liquidators' examinations - whether Court has power to stand the examination over with liberty to restore - whether adjourned examination should be vacated on discretionary grounds
- Karasmanis v Weston & Anor; In the matter of Karl Suleman Enterprizes Pty Limited [2002] NSWSC 1001
- witnesses expenses - corporations law examinations
- DCT v Currockbilly [2002] NSWSC 1061
- winding up. Application under s564 of the Corporations Act by creditor who granted indemnity and provided funds for liquidator to conduct examinations under Part 5.9. - Held: Litigation in the first limb of s564(a) included examinations under Part 5.9. A cause of action is property within the second limb of s564(a) which may be preserved so long as there has been a settlement of the cause of action and the proceeds recovered
- ASIC v Karl Suleman Enterprizes [2002] NSWSC 1039
- winding up - summons for examination of witnesses - whether summons should issue to minors - INFANTS AND CHILDREN - whether order for examination of a minor by a liquidator should be made
- Hill v Smithfield Service Centre [2002] NSWSC 999
Reported: (2002) 45 ACSR 470
- examination summons - "eligible applicant" - whether eligible applicant authorised by ASIC continues to have standing if bankruptcy intervenes between authorisation and commencement of examination proceeding - PRACTICE AND PROCEDURE - abuse of process - whether plaintiff in examination proceeding abuses process by continuing after bankruptcy
- Re Chircan Holdings [2002] NSWSC 988
- winding up - examination summons and orders for production served by liquidator - whether Corporations Act provisions impliedly prohibit use by liquidator of orders for production - whether a corporation can be made subject of examination summons - breadth of "examinable affairs" concept
- Re Orana Barellan Aboriginal Corporation (In Liq) [2002] NSWSC 990
- Re NSW Grains Board [2002] NSWSC 913
- Apple v Wily [2002] NSWSC 855 revised - 20/09/2002
- In the matter of ACN 076 673 875 Ltd [2002] NSWSC 578
Reported: (2002) 42 ACSR 296
liquidation - approval under s 477(2B) of litigation funding agreement - agreement to fund examination of former directors, with option for financier to take proceedings - relevant considerations, including extent to which liquidator must have investigated potential causes of action
- National Australia Bank Ltd v Wily [2002] NSWSC 573
- Actwane Pty Limited (In Liquidation) (Receiver & Manager Appointed) [2002] NSWSC 512
- Moage Ltd (in liq) [2002] NSWSC 419
Reported: (2002) 41 ACSR 487
- winding up - summons for examination - liquidator's continuing interest in defendant's financial means - whether fear of media misreporting warrants order that examination be in private
- Re Akai Pty Limited (in liq) [2002] NSWSC 346
- winding up - examination by liquidators - whether examination for impermissible purpose of unfairly obtaining forensic advantage - whether abuse of process
- Leisure Developments (Qld), application of [2002] NSWSC 248
Reported: (2002) 41 ACSR 276
- interlocutory process by examinees to set aside examination summonses and orders for production on grounds, inter alia, of abuse of process - examinees' application for access to liquidator's affidavits supporting issue of examination summonses - examinees' notice to produce to liquidator to support application to set aside examination summonses - relevant principles
- Doran Constructions Pty Limited (in liq) [2002] NSWSC 215
Reported: (2002) 194 ALR 101; (2002) 168 FLR 116; (2002) 20 ACLC 909
- winding up - liquidator's examination - circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation - EVIDENCE - liquidator's examinations - whether evidence given at is governed by Evidence Act 1995 (NSW) - EVIDENCE - legal professional privilege - circumstances in which joint retainer of solicitor exists - EVIDENCE - procedure to adopt when deciding whether legal professional privilege does not exist - EVIDENCE - waiver of client legal privilege - disclosure of substance of advice - disclosure made knowingly and voluntarily - disclosure by agent or employee authorised to make it - disclosure made under compulsion of law
- Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 1051
- Madden as Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 966
- supervision, regulation and correction - Examinations - Scope of examination - Matters for inquiry - Examination of third party - Investigation by liquidators as to whether to bring proceedings and prospects of success - Whether documents required beyond proper ambit of order for examination - EVIDENCE - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - Waiver of privilege - Effect of Evidence Act 1995 - Effect of Supreme Court Rules Part 36 r 13 - Whether Evidence Act or common law rules relating to privilege apply to production of documents in response to order under Part 36 r 12 - Whether privilege in documents lost - PROCEDURE - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Other matters - Order to produce documents - Whether Evidence Act or common law rules relating to privilege apply - Whether privilege lost
- New Cap Reinsurance Corporation Holdings Limited (ARBN 0761372490 and the Corporations Law: [2001] NSWSC 835
- access sought by creditor of company in liquidation to documents produced to the liquidator for examinations for purposes of proceedings to be brought by that creditor against third parties associated with the company - Basis for such access as a matter of statutory power or discretion - relevant considerations. - WORDS AND PHRASES - Meaning of "books of the company" in case of a company in liquidation.
- Re Network Welding Pty Ltd (in liq) (No 1) [2001] NSWSC 808
- examination- Persons allegedly having knowledge of corporation's property- Liquidator under creditors' voluntary liquidation- Whether an eligible applicant. WORDS & PHRASES- "Eligible applicant"- "Liquidator".
- In the matter of Agriculture.com Pty Ltd (In liq); Application of Sherman [2001] NSWSC 628
- examination by Administrator under s.596B - application by examinees for postponement of examinations - pending application under s.445D to terminate deed of company arrangement - insufficient time for examinees' Counsel to take instructions on documents to be examined upon - whether unfairness to examinees - the role of Counsel representing examinees - no ground shown for postponement of examinations.
- Re Global Medical Imaging Management Limited (in liq) [2001] NSWSC 481 revised – 8/06/2001
Reported: (2001) 38 ACSR 214
- compulsory Examination under s596B of the Corporations Law - Pursuit of forensic advantage - Abuse of process - No peripherality of information sought - Examinations permitted.
- Re Ezishop.Net Limited [2001] NSWSC 458
Reported: (2001) 38 ACSR 349; (2001) 162 FLR 124; [2001] NSWSC 458; [2001] ACL Rep 120 NSW 72
- examination of non-directors- Oppression- Mere inconvenience insufficient
All these cases are available on the Supreme Court website: http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/index
Currency: This information was updated on 30 June 2006.
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