Federal Court of Australia

Jane v Secatore (Liquidator), in the matter of Last Lap Pty Ltd (in liq) [2021] FCAFC 108

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal be refused.

2.    The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In 2019, a registrar issued summonses to various entities under s 596B of the Corporations Act 2001 (Cth) (the Act) for the production of documents and to be examined about the examinable affairs of Last Lap Pty Ltd (in liq) (the Company/Last Lap). The summonses were issued on the application of the respondent (the liquidator), the liquidator of the Company and included a summons directed to the applicant (Mr Jane). Mr Jane unsuccessfully applied to have the summonses dismissed (Secatore, in the matter of Last Lap Pty Ltd (in liq) (No 3) [2020] FCA 1289) and now seeks leave to appeal the dismissal of his application. He requires an extension of time to seek leave because he was late by 13 days in filing his leave application. The delay was minimal and satisfactorily explained by Mr Jane’s solicitor, Richard Mereine, in an affidavit supporting the application for an extension of time. However, we have concluded that an extension of time and grant of leave should not be given because the proposed grounds of appeal are without any merit.

2    The power to issue the examination summons is conferred by s 596B of the Act. That section provides:

The Court may summon a person for examination about a corporation’s examinable affairs if:

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

(b)     the Court is satisfied that the person:

(i)     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

(ii)     may be able to give information about examinable affairs of the corporation.

3    An “eligible applicant” includes a liquidator: s 9 of the Act.

4    Section 596D(2) of the Act provides:

A summons to a person under section … 596B may require the person to produce at the examination specified books that:

(a)    are in the person’s possession; and

(b)    relate to the corporation or to any of its examinable affairs.

5    The expression “examinable affairs” is defined in s 9 of the Act to mean:

(a)     the promotion, formation, management, administration, restructuring or winding up of the corporation; or

(b)     any other affairs of the corporation (including anything that is included in the corporation's affairs because of section 53); or

(c)     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 to anything that is included in the corporation's examinable affairs because of paragraph (a) or (b).

6    Section 53 of the Act relevantly provides as follows:

For the purposes of the definition of examinable affairs in section 9 … the affairs of a body corporate include:

(a)     the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and

….

(d)     any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when:

…

(iv)    the body is being wound up;

and without limiting the generality of the foregoing, any conduct of … an administrator of the body, … or of a liquidator … of the body; and ….

7    Sections 9 and 53 of the Act, read together, thus prescribe a very wide definition of “examinable affairs”.

8    Two primary submissions were made by Mr Jane in the court below in support of his application for the discharge of the summons that was issued to him. The first primary submission was that the Court’s exercise of power under s 596B is preconditioned on the requirement that the matters for examination and documents for production are within the “examinable affairs” of the Company. Mr Jane argued that precondition was not met, as some of the categories of documents that he was directed to produce did not relate to the examinable affairs of Last Lap and it was beyond the scope of the Court’s power under s 596B to require him to attend an examination to give information about matters that were not within the examinable affairs of Last Lap. That contention was rejected by the primary judge, who was satisfied that the categories and subject matter upon which Mr Jane may be examined, based on those categories, “prima facie” fell within Last Lap’s examinable affairs and did not afford a basis to set aside the summons before the examination commenced (Secatore, in the matter of Last Lap Pty Ltd (in liq) (No 3) [2020] FCA 1289 at [53] and [80]). His Honour stated that to the extent that a particular question asked or particular documents produced at the examination might not be about Last Lap’s examinable affairs, such matters should be dealt with at the examination (at [81]). The second primary submission was a claim that the liquidator’s affidavit contained serious and material non-disclosures and the summonses should consequentially be discharged. The primary judge rejected that contention, finding either that disclosure was made or in respect of matters not disclosed, that the non-disclosure was not material (at [82], [99]–[100]).

9    Mr Jane advanced five proposed grounds of appeal which, in substance, raise three issues:

(a)    whether a court must be satisfied that the issues the subject of the proposed examination and the documents to be produced fall within the examinable affairs of the Company, before exercising the discretion to issue a summons under s 596B(1) of the Act;

(b)    whether six categories of documents set out in the schedule to the summons that issued to Mr Jane were beyond the scope of the examinable affairs of Last Lap (the contested documents); and

(c)    whether the liquidator failed to disclose all material facts in his application for the issue of the summons.

10    The contested documents are:

(a)    documents concerning the financial position of Calder Park Raceway Pty Ltd (Calder Park Raceway) both in around 30 June 2009 and presently (item 10);

(b)    documents concerning the sale by Bob Jane Properties Pty Ltd (Bob Jane Properties) of one or more of its properties in or around Queen Street, Melbourne on about 30 June 2009 (item 11);

(c)    documents concerning the loan agreement between Calder Park Raceway and Bob Jane Corporation Pty Ltd (Bob Jane Corporation) dated on or around 24 September 2009 (item 13);

(d)    documents concerning the equity held in the property at 377 and 479 Calder Freeway, Calder Park, Victoria held by Calder Park Raceway (item 14);

(e)    documents concerning the current financial position of Bob Jane Properties (item 16); and

(f)    documents concerning the transfer of car parks and storage spaces from Bob Jane Properties to Kushinda Pty Ltd (Kushinda) in June 2009 (item 20).

11    Mr Jane advanced two central contentions in support of his proposed appeal grounds. The first was that the liquidator failed to bring to the attention of the registrar that there is a real and substantive dispute concerning whether the legal and beneficial ownership of the shares in Bob Jane Properties (which, in turn, owns the shares in Calder Park Raceway) are owned by Last Lap or another entity, namely ACN 005 490 540 Pty Ltd (formerly known as Mimulus Pty Ltd, as trustee for the Mimulus Trust) (Mimulus). The second was that the liquidator also failed to bring to the attention of the registrar that Bob Jane Corporation is neither related to Last Lap nor an entity that is, or has been, connected with Last Lap. It was submitted that these matters impacted the exercise of power to issue the summons to Mr Jane by reason that:

(a)    if Mimulus, not Last Lap, owns the shares in Bob Jane Properties, then none of the contested documents relate to the examinable affairs of Last Lap because those categories presuppose that the shares in Bob Jane Properties are owned by Last Lap; and

(b)    since Bob Jane Corporation is neither related to Last Lap nor an entity that is, or has been, connected with Last Lap, issues related to the business affairs of Bob Jane Corporation are not examinable affairs of Last Lap.

It was further submitted that both matters warranted the discharge of the summons for material non-disclosure by reason that both matters impacted on the scope of the examinable affairs of Last Lap and, thus, the decision to issue the summons.

12    It was thus submitted that the primary judge erred in finding that there had not been material non-disclosure (grounds 4 and 5). Correlatively, it was submitted that the primary judge erred:

(a)    in finding that the contested documents are “prima facie” within the examinable affairs of Last Lap (ground 2); and

(b)    in not holding that the contested documents and the liquidator’s failure to draw the registrar’s attention to the fact that Bob Jane Corporation is neither related to Last Lap, nor an entity that is, or has been, connected with Last Lap, established a real risk that some of the matters the liquidator intends to examine about are not about the examinable affairs of Last Lap (ground 3).

13    Ground 1 is a challenge to the primary judge’s statement at [3] that “to the extent a particular question asked or particular documents produced at the examination might not be about Last Lap’s examinable affairs, any such issue should be dealt with at the examination”. The argument, in short, was that the registrar must be satisfied before issuing a s 596B summons that the information to be sought by the liquidator at the examination falls within the examinable affairs of the Company, as the power to issue a summons is preconditioned on the requirement that a person can only be summonsed to give information about the examinable affairs of a company and can only be summonsed to produce documents that relate to the examinable affairs of a company. It was submitted that the registrar could not have been satisfied that the precondition for the issue of the summons was met, in light of the dispute over the ownership of the shares in Bob Jane Properties and because the business affairs of Bob Jane Corporation are outside the scope of the examinable affairs of Last Lap.

14    Ground 1 proceeds on the misconception that the examination process cannot be used to investigate and ascertain whether something does, or does not, form part of the examinable affairs of a corporation. There must be a factual basis for the Court to form a view that the purpose for which the eligible applicant has applied for a summons relates to the examinable affairs of the Company, and not for some extraneous purpose, but where on the known facts a relationship with the examinable affairs of the corporation is shown, that relationship is sufficient to enliven the Court’s power under s 596B. The Court need only be satisfied that the proposed examinee is a person who “may” be able to give information “about” examinable affairs of the corporation – that is, about matters bearing on the examinable affairs of a company. So too in respect of the exercise of power under s 596D – where there is a factual basis for the Court to be satisfied that the documents which the eligible applicant seeks production of “relate to” the examinable affairs of the corporation, in the sense that the known facts show a nexus between those documents and the examinable affairs of the company, it is within the scope of the power of the Court to make an order for production under s 596D(2) of the Act. It is not the function of the court issuing the summons to determine the scope of the examinable affairs of the corporation. That takes place within the context of the examination, the very purpose of which is to enable an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation and to identify the corporation’s assets and liabilities, amongst other purposes: Wainter Pty Ltd, in the matter of New Tel Limited (in liq) ACN 009 068 955 (2005) 145 FCR 176; [2005] FCAFC 114 at [252]. The purpose of the examination is not to be pre-empted by the court determining for itself, in an application for the issue of a summons under s 596B, the very matter to be the subject of the examination, where the eligible applicant is able to demonstrate that the subject matter relates to, or arises, from the examinable affairs of the company. The primary judge was correct to hold that it is for the court conducting the examination to deal with questions as to whether a matter does not concern the corporation’s examinable affairs: Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91 at [16]–[17]; s 597 of the Act.

15    Ground 1 accordingly has no substance. The question of whether it is Last Lap or Mimulus that owns the shares in Bob Jane Properties is plainly a matter that relates to the examinable affairs of Last Lap and a basis for the issue of the summons. It follows that the complaint that the business affairs of Bob Jane Corporation is outside the scope of the examinable affairs of Last Lap must also fall away, to the extent that there are matters concerning those affairs that relate to the examinable affairs of Last Lap. Thus, although it is apparent that the registrar thought that Bob Jane Corporation was a member of the Bob Jane Group – which fact is apparent from the summons that issued to the National Australia Bank at the same time as the summons that issued to Mr Jane – the registrar’s misunderstanding has no bearing on the exercise of the power by the registrar to issue the summons to Mr Jane. There is no suggestion at all that the liquidator is seeking to use the examination process for a collateral or ulterior purpose extraneous to the examinable affairs of Last Lap, insofar as the subject matter of the examination relates to the affairs of Bob Jane Corporation.

16    Ground 2 is a challenge to the primary judge’s finding that the contested documents are “prima facie within the examinable affairs of Last Lap” (at [53]). Ground 3 is that the primary judge erred in holding that the contested documents do not “establish a real risk that the matters the liquidator intends to examine are not ‘about’ the examinable affairs of Last Lap”. In view of our conclusion on ground 1, grounds 2 and 3 must also fail, insofar as they relied on the same contentions advanced in support of ground 1, which have been rejected. Ground 2 also raises some additional matters concerning the specific categories.

17    First, it was contended that the primary judge erroneously found that the current financial position of Bob Jane Properties (item 16) “appears to be relevant to Last Lap”, on the basis of a share transaction that purportedly occurred when Last Lap was being wound up, when the document to which the primary judge had regard to recorded the share transfer as having occurred on 1 July 1990, which was before the Company commenced to be wound up. The contention mischaracterises the reasoning of the primary judge. The document to which the primary judge had regard in making that finding was a Form 484 lodged by Bob Jane Properties in May 2005, detailing a change of shareholder from Mimulus to Last Lap on 1 July 1990. The basis of his Honour’s finding was not that the share transfer happened at a time when the Company was being wound up, but that the Form 484 was lodged at a time when the Company was being wound up and that document was an “act or thing done” “in relation to” Last Lap when Last Lap was being wound up: s 53(d)(iv); [77]. The passage at [102] upon which Mr Jane relied was in a different context and related to a different topic, being whether there was material disclosure of the fact that Bob Jane Properties maintains that its shares are, and have always been, held by Mimulus. His Honour dealt with that contention at [99]–[103]. At [102] his Honour stated:

… the concept of “examinable affairs” is broad and, even if the position in the 5 November 2015 Letter is accepted, it is not sufficiently clear that there would be a material effect on the “examinable affairs” of Last Lap. By way of example, the purported transfer which is referred to in the 5 November 2015 Letter would still be an “act or thing done ... in relation to” Last Lap “at a time when” Last Lap is being wound up.

The 5 November 2015 letter was from HWL Ebsworth, the solicitors for Bob Jane Properties, advising that the purported transfer of shares in Bob Jane Properties from Mimulus to Last Lap in July 1990, as recorded in the May 2005 Form 484 document, was ineffective or a nullity. Whilst it does appear that his Honour wrongly made reference to the purported transfer as an “act or thing done ... in relation to” Last Lap “at a time when” Last Lap is being wound up, that incorrect reference does not gainsay the clear finding made earlier at [77], when dealing with the Form 484 document where, after noting that the effect of that document and its evidentiary basis was contested by Mr Jane, his Honour stated:

However, that document was an “act or thing done” “in relation to” Last Lap at a time when Last Lap was being wound up. (emphasis added)

18    Next, it was argued that the primary judge erroneously found that Bob Jane Properties’ ownership of the shares in Calder Park Raceway “appears to be relevant to Last Lap because…there appears to be an issue as to whether Calder Park Raceway Pty Ltd owes a debt to Last Lap” and therefore documents related to the equity in any property held by Calder Park Raceway (item 14), the loan agreement between Calder Park Raceway and Bob Jane Corporation (item 13) and the financial position of Calder Park Raceway (item 10) were beyond the examinable affairs of Last Lap. It was submitted that the primary judge erred by linking the issue as to whether Calder Park Raceway owes a debt to Last Lap with the fact that Bob Jane Properties owns the shares in Calder Park Raceway. It was submitted that the mere fact that Bob Jane Properties owns the shares in Calder Park Raceway does not make that a business affair of Bob Jane Properties, an examinable affair of Last Lap or relevant to anything otherwise included in Last Lap’s examinable affairs. That contention, once again, is not based on a fair reading of his Honour’s reasons at [67]. His Honour’s reasons at [66] and [67] should be set out in full:

Calder Park Raceway

Mr Jane submitted that certain of the documents which are required to be produced at the examination “relate to transactions that occurred on or around 30 June 2009” and “in September 2009”, “more than 5 years before Last Lap was placed into a creditors’ voluntary winding up”. To make good that proposition, Mr Jane referred to the following categories of documents listed in the summonses:

(1)     The summons sought documents concerning the assignment to Calder Park Raceway Pty Ltd on around 30 June 2009 of a receivable owed to Last Lap by Bob Jane T-Marts Unit Trust (Summons to Rodney Jane, Schedule, item 9).

(2)     The summons sought documents concerning the financial position of Calder Park Raceway Pty Ltd both in around 30 June 2009 and presently, including but not limited to the ability of Calder Park Raceway Pty Ltd to repay a purported outstanding debt to Last Lap.

(3)     The Liquidator also sought documents concerning a loan agreement between Calder Park Raceway Pty Ltd and Bob Jane Corporation Pty Ltd, pursuant to which it is said Bob Jane Corporation Pty Ltd appointed itself controller of a property at 377 and 479 Calder Freeway, Calder Park, Victoria (Summons to Rodney Jane, Schedule, items 10 and 13).

These categories are about “act[s] or thing[s] done ... in relation to [Last Lap] or its business or property, at a time when ... [Last Lap] is being wound up ... and ... any conduct ... of a liquidator ... of [Last Lap]” or the transactions or dealings of Last Lap. They are within Last Lap’s examinable affairs. By way of example:

(1)     There is a document which at least indicates that Last Lap assigned a debt to Calder Park Raceway Pty Ltd. This appears to have occurred while Last Lap was in liquidation – it is an act or thing done in relation to Last Lap. It appears a trustee of a certain trust was indebted to Last Lap and there is an issue whether Last Lap agreed to assign this debt to Calder Park Raceway Pty Ltd. This also appears to be a “transaction or dealing” of Last Lap and would form part of Last Lap’s examinable affairs on that basis as well.

(2)     There is an issue concerning what the effect of that document was. There appears to be an issue concerning the basis for this transaction – there appears to be a question why the debt was assigned in circumstances where the trustee of the trust might have been able to repay this debt to Last Lap, but, by reason of other documents identified by the Liquidator, there is a question whether Calder Park Raceway Pty Ltd can repay that debt. This transaction was dated 30 June 2009 and appears to be signed by the relevant liquidator at the time. It is therefore relevant to the “conduct ... of a liquidator ... of” Last Lap.

(3)     In addition, there is a letter to the Deputy Commissioner of Taxation from Deloitte dated 8 December 2009 (the Deloitte Letter). The letter is signed by two proposed examinees, Mr Bradica and Mr Nanos. The letter sought an amended assessment which was said to be required “to correctly reflect the agreement in relation to a loan from Bob Jane Corporation Pty Ltd ... to Calder Park Raceway Pty Ltd ..., a member of the Last Lap Pty Ltd (in liquidation) tax consolidated group (Last Lap Group)”. This “tax consolidated group” appears to be a transaction or dealing of Last Lap. There is also an Australian Taxation Office position paper which identifies as an issue whether income generated by certain activities carried out at, it appears, a property at Calder Park “is assessable to Last Lap” for certain income years. These matters appear to fall within the “business” of Last Lap, or its “transactions and dealings” or perhaps its “liabilities” or “other income”.

(4)     Mr Jane also took issue with the Liquidator seeking categories of documents concerning the equity in any property held by Calder Park Raceway Pty Ltd. Mr Jane submitted this was outside the examinable affairs of Last Lap. However, “examinable affairs” includes “the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation” (Corporations Act, s 9 (definition of “examinable affairs”)). A “connected entity” includes “a body corporate that is, or has been, related to the corporation” (Corporations Act, s 9 (definition of “connected entity”). Where corporation “A” is a “subsidiary of a holding company” of corporation “B”, corporation “A” and corporation “B” “are related to each other” (see Corporations Act, s 50).

In this regard, Bob Jane Properties Pty Ltd (Bob Jane Properties) and Last Lap relevantly share a holding company. Bob Jane Properties is therefore a “subsidiary of a holding company” of Last Lap. Bob Jane Properties and Last Lap are, as a result, related bodies corporate and are therefore also “connected entities”. In these circumstances, to the extent the “business affairs” of Bob Jane Properties “appear to be” “relevant to” Last Lap, they are within Last Lap’s examinable affairs.

One of the business affairs of Bob Jane Properties is Bob Jane Properties’ ownership of all of the shares in Calder Park Raceway Pty Ltd. That appears to be relevant to Last Lap because, as stated above, there appears to be an issue as to whether Calder Park Raceway Pty Ltd owes a debt to Last Lap. To the extent the equity in any property held by Calder Park Raceway Pty Ltd is properly referable to Bob Jane Properties’ business, transactions or dealings, property, profits and other income, or internal management and proceedings, it is within the examinable affairs of Last Lap. That might be the type of issue which needs to be addressed by reference to a particular document or question at the examination. However, given the matters I have set out above, I am not presently satisfied that documents related to the equity in any property held by Calder Park Raceway Pty Ltd are beyond the examinable affairs of Last Lap.

19    As those paragraphs demonstrate, his Honour was attuned to the fact that item 14 must have a relevant connection with Bob Jane Properties’ “business affairs” to fall within the examinable affairs of Last Lap. Contrary to Mr Jane’s submission, on the facts as presently known, the question of whether or not Calder Park Raceway owes a debt to Last Lap and, if so, has the capacity to repay it, prima facie provides a sufficient link with Bob Jane Properties’ “business affairs” so as to relate to the examinable affairs of Last Lap. Also contrary to Mr Jane’s submission, para (c) of the definition of “examinable affairs” in s 9 of the Act does not require it to be established that the specific “business affair” of Bob Jane Properties is relevant to Last Lap – it is sufficient that the business affairs “appear to be” relevant. That threshold was met in the present case for the reasons given by the primary judge.

20    Next, it was submitted that the primary judge’s finding presupposes that there is a recoverable debt owed by Calder Park Raceway to Last Lap. However, it was said, the deed of assignment did not create a debt on its terms, but extinguished the debt owed by Last Lap to Calder Park Raceway and created a debt owned by Calder Park Raceway to Bob Jane T-Mart Unit Trust to Calder Park Raceway. Moreover, it was argued, even if a debt was owed by Calder Park Raceway to Last Lap, its recovery was statute barred. Neither argument has any substance. It matters not that the liquidator has yet to establish that there is a debt owed by Calder Park Raceway to Last Lap and, if so, whether Last Lap has the right to recover that debt, as the question of the existence of the debt and its recoverability are issues which, on their face, relate to the examinable affairs of Last Lap for the reasons given by the primary judge.

21    Lastly, it was argued that the primary judge erroneously found that documents concerning the transfer of carparks and storage spaces in Elizabeth St in June 2009 from Bob Jane Properties to Kushinda (item 20) related to matters within the examinable affairs of Last Lap. It was submitted that this finding was wrong because it was premised on an unsubstantiated claim in a Form 507, which was contradicted by objective evidence. That error was said to be apparent at [70(2)] of the reasons, where the primary judge stated that “there might be a question as to how these properties were transferred to Bob Jane Properties from Last Lap whilst Last Lap was being wound up”. It was submitted that question did not arise because title searches annexed to the liquidator’s affidavit showed that Last Lap never owned those properties. Once more, the submissions do not fairly record the primary judge’s reasons. His Honour said at [69]–[70]:

Certain car parks

Mr Jane noted that the Liquidator had sought documents concerning the sale by Bob Jane Properties of one or more of its properties near Queen Street in or around June 2009 (Summons to Rodney Jane, Schedule, item 11). The Liquidator has also sought documents concerning the transfer of carparks and storage spaces in Elizabeth Street, Melbourne in June 2009 from Bob Jane Properties to another entity (Summons to Rodney Jane, Schedule, item 20). Mr Jane submitted that these were outside the examinable affairs of Last Lap.

These appear to relate to matters within the examinable affairs of Last Lap for the following reasons:

(1)     As I have stated, Bob Jane Properties is a “connected entity” of Last Lap (by reason of Bob Jane Properties sharing a holding company with, and therefore being a related body corporate of, Last Lap). To the extent the business affairs of Bob Jane Properties are relevant to Last Lap, they are therefore within Last Lap’s examinable affairs.

(2)     These properties are prima facie relevant to Last Lap because the Liquidator has identified a “Form 507” “Report as to affairs” provided to the corporate regulator, [Australian Securities and Investments Commission], in relation to Last Lap. That document listed that Last Lap had an “interest in land” described as the “Queen St Carparks”. There appears to be an issue whether these are the same or different car parks when compared to certain car parks which (the Liquidator has identified) appear to have been sold by Bob Jane Properties in or around June 2009. If they are, other issues may arise (for example, there might be a question as to how these properties were transferred to Bob Jane Properties from Last Lap whilst Last Lap was being wound up).

The example in parenthesis was wrongly given, as there was no evidence to show that Last Lap had ever owned those properties, but that does not gainsay his Honour’s conclusion that item 20 prima facie relates to Last Lap’s examinable affairs for the reasons given.

22    Grounds 4 and 5 similarly must fail because, for the reasons given earlier in respect of ground 1, the precondition for the exercise of power under s 596B was satisfied on the material before the registrar. In any event, we do not accept the contention that the liquidator failed to bring to the attention of the registrar that there was a dispute concerning the ownership of the shares in Bob Jane Properties. First, the liquidator’s affidavit expressly brought to the attention of the registrar that it was unclear to the liquidator whether Last Lap had any beneficial entitlement to the shares in Bob Jane Properties. The liquidator’s affidavit also expressly brought that matter to the attention of the registrar as one of the subject matters of the proposed examination, which plainly it is. Secondly, Mr Jane did not point to any deficiency in the material relevant to that issue which the liquidator put before the registrar. Rather, the complaint was that the liquidator failed to draw the registrar’s attention to “the real and substantive dispute” concerning the legal and beneficial ownership of the shares in Bob Jane Properties and failed to explain the effect of that substantive dispute on the examinable affairs of Last Lap. In particular, it was submitted, the liquidator did not tell the registrar that Bob Jane Properties’ position was that its shares are, and always have been, held by Mimulus. There are two responses. First, it was sufficient to fulfil the obligation of disclosure to annex the correspondence concerning the existence and nature of the dispute to the affidavit and then in the body of the affidavit to make reference to it.  Secondly, the submission that the failure to make such disclosure was material was again premised on the erroneous contention that the registrar could not be satisfied that the precondition for the issue of a summons was met, in light of the dispute over ownership of the shares in Bob Jane Properties. Thus, even if it be correct that the liquidator mischaracterised the issue about the shareholding in Bob Jane Properties, as asserted by Mr Jane, the non-disclosure, if there be non-disclosure, was not significant.

23    In view of our conclusion, it is unnecessary to deal with the liquidator’s application for leave to adduce further evidence.

Associate:

Dated:    22 June 2021