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  • Unreported Judgment

Walder v Finance Technology Australia Pty Ltd

 

[2007] QSC 100

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Walder v Finance Technology Australia Pty Ltd (ACN 099 983 150) [2007] QSC 100

PARTIES:

WILLIAM RUSSELL WALDER
(applicant)
v
FINANCE TECHNOLOGY AUSTRALIA PTY LTD (ACN 099 983 150)
(respondent)

FILE NO/S:

BS 3766 of 2007

DIVISION:

Trial Division

PROCEEDING:

Ex parte Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2007

JUDGE:

Byrne J

ORDER:

The application is refused

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – GENERALLY – “ANTON PILLER” ORDER – WHEN AVAILABLE – NATURE OF ORDER – the applicant sought an Anton Piller order to inspect and take copies of books of accounts and other records of the respondent which related to transactions involving individuals and corporations with whom the applicant had no connection with – the form of order did not identify the persons sought to be bound by it nor did it contain any of the protections usually contained in Anton Piller relief.

Memory Corporation PLC v Sidhu (No 2) [2000] 1 WLR 1443

COUNSEL:

G D Sheahan for the applicant

SOLICITORS:

Bennett & Philp Solicitors for the applicant

 

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

 

IN THE MATTER OF FINANCE TECHNOLOGY AUSTRALIA PTY LTD (ACN 099 983 150)

 

WILLIAM RUSSELL WALDER

Applicant

and

 

FINANCE TECHNOLOGY AUSTRALIA PTY LTD (ACN 099 983 150)

Respondent

BRISBANE

..DATE 30/04/2007

ORDER

 

HIS HONOUR:  This is an application for injunctive relief, said to be in the nature of an Anton Piller order. 

 

The proposed form of order is curious.  It is not directed to any individual or corporation.  Rather it is expressed in these terms:  that the applicant "and/or" his solicitors be "permitted" to do certain things.  It does not say by whom.  That is one curiosity. 

 

Beyond that,  what it is sought that the applicant and/or his solicitors be permitted to do is to enter upon premises and inspect and take copies of books of account and other records of the respondent company which relate to transactions involving named individuals and corporations.  The applicant, however, has no connection with any of them. 

 

It is also sought that the applicant and/or his solicitors be permitted to remove into the applicant's solicitor's custody copies of those records of third parties. 

 

An order is also sought that the applicant or his solicitors be permitted to inspect and take copies of documents held by the National Australia Bank.  It is through that bank that the transactions involving the respondent, whose activities are said to involve misapplications or misappropriations, were transacted. 

 

The applicant is a former shareholder of the respondent.  He lent about $260,000 to it.  The debt is repayable on demand.  No demand has been made.  The applicant's status appears to be therefore that of a creditor whose debt is not yet due.

 

The orders sought today are said to be ancillary to an application for a winding up of the corporation on the just and equitable ground.  It is unnecessary for present purposes to consider whether it is appropriate that such a ground be called in aid by a creditor whose debt is not yet due.  There are more fundamental difficulties associated with this application.

 

The form of order proposed contains none of the protections usually contained in Anton Piller relief.  Anton Piller relief has, generally speaking, a significant capacity to cause parties affected by it to suffer considerable trouble and expense.  And since it is an order granted ex parte, it has become common for such orders to include provision for a supervising solicitor to advise those affected by the order about their rights.  Neither this nor any of the other ordinary protections for the interests of parties to be affected by an Anton Piller order are proposed in the draft. As I have said, the proposed order does not even identify the persons sought to be bound by it; and on one view it extends to bank officers.  I gather that this is intentional, Mr Sheahan indicating that the applicant wishes to require the bank to disclose transactions with others of its customers for the purpose of enabling the applicant to see if a case can be fished out of the bank's records which would justify the claim that it is just and equitable that the respondent be wound up. There are many, and fundamental, difficulties with the orders sought.

 

In Memory Corporation PLC v. Sidhu (No 2) [2000] 1 WLR 1443, at page 1459-1460, Mummery LJ, speaking of the English Chancery practice, said:

 

"It cannot be emphasised too strongly that at an urgent without notice hearing for a freezing order, as well as for a search order or any other form of interim injunction, there is a high duty to make full, fair and accurate disclosure of material information to the Court and to draw the Court's attention to significant factual, legal and procedural aspects of the case.  It is the particular duty of the advocate to see that the correct legal procedures and forms are used; that a written skeleton argument and a properly drafted order are prepared by him personally...and that at the hearing the Court's attention is drawn by him to unusual features of the evidence adduced, to the applicable law and to the formalities and procedure to be observed."

 

These observations have equal application in Queensland.

 

There is, in short, no justification for the relief sought. 

 

The application will therefore be refused.

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Editorial Notes

  • Published Case Name:

    Walder v Finance Technology Australia Pty Ltd

  • Shortened Case Name:

    Walder v Finance Technology Australia Pty Ltd

  • MNC:

    [2007] QSC 100

  • Court:

    QSC

  • Judge(s):

    Byrne J

  • Date:

    30 Apr 2007

Litigation History

No Litigation History

Appeal Status

No Status