Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Re Tim Ferrier Pty Ltd (in liquidation)

 

[2006] QSC 222

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

27 June 2006

DELIVERED AT:

Cairns

HEARING DATE:

15 June 2006

JUDGE:

Jones J

ORDER:

  1. Pursuant to section 596A of the Corporations Act 2001, summonses are issued for the public examination of Douglas Alexander Ferrier and Jennifer Lana Ferrier.
  2. Pursuant to section 596B of the Corporations Act 2001, summonses are issued for the public examination of Steven Moore, Andrew Heard, Thomas Stevens and Andrew O’Halloran.
  3. That the public examinations of the Examinees take place in the Magistrates Court at Cairns, in the State of Queensland.
  4. That for the purposes of these examinations the Magistrates Court at Cairns may exercise the same powers as this Court in accordance with section 597(15) of the Corporations Act 2001.
  5. That the Examinees be required to deliver up to the Applicants those books, records and all and any other documents as outlined in the attached Draft Summons.
  6. That the books, records and other documents required to be delivered up must be so delivered to the Applicant’s Solicitors’ business address being MacDonnells Solicitors, Cnr Shields and Grafton Streets, Cairns 4870, in the State of Queensland, ten business days prior to the examination.
  7. That pursuant to s 597(13) a transcript of the examination be taken and the Examinees be required to sign that written record.
  8. Costs of and incidental to this application to be reserved

CATCHWORDS:

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF LIQUIDATION – LIQUIDATORS RIGHTS AND POWERS – PUBLIC EXAMINATIONS – SUMMONSES

SOLICITORS:

MacDonnells Solicitors

[1] This is an application by the liquidator of the company Tim Ferrier Pty Ltd (In Liquidation) pursuant to the Corporations Act 2001 (the Act) seeking the issue of summonses requiring certain persons connected with the company to undergo public examination.

[2] Pursuant to s 596A of the Act, mandatory summonses for examination of a person about a corporation’s examinable affairs will be issued if :

 

(a) an eligible applicant applies for the summons; and

(b) the Court is satisfied that the person is an officer of the corporation or was an officer of the corporation during the two years prior to the corporation being wound up.

[3] (a) The applicant, as liquidator is an eligible applicant pursuant to s 9 of the Act.  The applicant in this instance, Peter John Morris was appointed liquidator of Tim Ferrier Pty Ltd (In Liquidation) on 16 August 2004 and currently acts in that role.

 

(b) Douglas Alexander Ferrier has been a director the company since 1974 and, as such, is an officer of the company pursuant to s 9. Jennifer Lana Ferrier was a director of the company up to 29 March 2004. As such, she was an officer of the company in the two years prior to its winding up which began on 16 August 2004, and is an officer of the company pursuant to s 9.

[4] The liquidator also wishes to examine other persons connected with the corporation under s 598B of the Act. The Court has a discretion to order examination if it is satisfied that the person has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or more importantly for this application, may be able to give information about the examinable affairs of the corporation.

[5] Examinable affairs in relation to a corporation is defined in s 9 to mean the promotion, formation, management, administration or winding up of the corporation or any other affairs of the corporation or the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or the corporation’s examinable affairs.

[6] The Liquidator wishes to carry out public examinations of persons with relevant knowledge of:

a)the history and background of the company and the DA Ferrier Family Trust –  the Trust for which the company was incorporated to be the Trustee;

b)the relationship between the company and its business “Port Douglas Real Estate”;

c)the manner in which that business “Port Douglas Real Estate” was transferred to a new entity, Tim Ferrier (Real Estate) Pty Ltd; and

d)the relationship the company had with its service entity Jentim Trading Fund Pty Ltd as Trustee for the Ferrier Family (Trading) Trust.

[7] Based on the material before me, I am satisfied that Steven Moore, a partner of Harris Orchard Chartered Accountants, was directly involved in the preparation of the financial records of the Company, the DA Ferrier Family Trust and the The Ferrier Family (Trading) Trust and as such will have direct knowledge as to the examinable affairs of the company. Harris Orchard has been the registered office of the company for a substantial period of time.

[8] Andrew Heard, who is a partner at PPB Chartered Accountants in Adelaide was involved in the provision of advice to Mr Tim Ferrier in relation to funds in the DA Ferrier Family Trust, will be able to provide information to the Liquidator as to the trustee relationship between the Company and the DA Ferrier Family Trust.

[9] Thomas Stevens is a partner of the legal firm O’Reilly & Stevens Bovey and was the company solicitor up until the company was placed in liquidation. He was directly involved in a major piece of litigation involving the company and will have direct knowledge about the company’s legal affairs during that time.

[10] Andrew O’Halloran is a partner of the legal firm Kelly & Co in Adelaide. The Liquidator’s investigations indicate that he obtained records of the DA Ferrier Family Trust which were the property of the company and therefore he will have knowledge of the relationship between the Company and the DA Ferrier Family Trust.

[11] It is necessary for these people to be subject to public examination to give the Liquidator’s investigation into the affairs of the company any real meaning.

[12] The Liquidator in this application is also seeking the production of a wide scope of books and records. Pursuant to s 597(9) I direct that the persons identified above to undergo public examination produce all documents in their possession that are relevant to the matters to which the examination relates or will relate. These documents are outlined in the draft summonses.

[13] The power to order production of books under s 597(9) of the Act is limited to production at the examination however an order can be made for pre-examination by the Liquidator of books and records in order to save time and expense: Re Equiticorp Finance Limited (1992)); Ex parte Brock (No. 1) 10 ACLC 382. Because such a large volume of material needs to be examined by the Liquidator in this matter I order that the books, records and other documents required to be produced must be delivered to the Applicant’s solicitors 10 business days prior to the examination.

Close

Editorial Notes

  • Published Case Name:

    Re: Tim Ferrier Pty Ltd (in liquidation)

  • Shortened Case Name:

    Re Tim Ferrier Pty Ltd (in liquidation)

  • MNC:

    [2006] QSC 222

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    27 Jun 2006

Litigation History

No Litigation History

Appeal Status

No Status