FEDERAL COURT OF AUSTRALIA

Blue Ridge WA Pty Ltd (In Liquidation) [2015] FCA 567

IN THE MATTER OF BLUE RIDGE WA PTY LTD (IN LIQUIDATION)

THE COURT ORDERS THAT:

1.    Orders 1 and 2 made by a Deputy District Registrar of the Court on 27 January 2015 are varied by:

(a)    requiring that they specify a time and date and place for Alan Neil Mackenzie and Janet Laird Mackenzie to produce to the Court the books and records specified in terms of Schedules A and B to those Orders respectively, such time and date and place to be the same time and date and place as the resumed examination of Alan Neil Mackenzie under ss 596A and 596D of the Corporations Act 2001 (Cth);

(b)    deleting from the definition of “Associated Entity” in Schedule A of the said Orders the words and punctuation “, parent, sibling” so that that part of the definition reads: “any spouse or child of Alan Neil Mackenzie,”.

2.    The fixing of the time and date and place referred to in Order 1 hereof is remitted to the Deputy District Registrar.

3.    There be no order as to the costs of the application by Alan Neil Mackenzie and Janet Laird Mackenzie, save that the costs of the applicant be proper costs of the Liquidators in the winding-up of the applicant.

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

IN THE MATTER OF BLUE RIDGE WA PTY LTD (IN LIQUIDATION)

REASONS FOR JUDGMENT

INTRODUCTION

1    This judgment concerns the application by Alan Neil Mackenzie and Janet Laird Mackenzie for an order, firstly extending the time within which they might make the application, and more substantively, to review under s 35(5) of the Federal Court of Australia Act 1976 (Cth) the Orders of a Deputy District Registrar of the Court made on 27 January 2015 under s 596D and 597(9) of the Corporations Act 2001 (Cth) (the Act), in particular:

1.    that Alan Neil Mackenzie and/or any “Associated Entity” of Blue Ridge WA Pty Ltd set out or disclose details of all books, documents, records and accounts (however compiled, recorded or stored) of any assets held either in Australia or in any other jurisdiction for the period 23 April 2013 to 4 December 2014;

2.    that Janet Laird Mackenzie set out, disclose details or provide all bank account statements for any and all bank accounts maintained by her for the period 15 December 2014 to 4 December 2014; ...

2    The orders made on 25 January 2014, also required an accountant, Paul Mahar of Spectra Business Developments to produce certain documents to the Court pursuant to s 597(9) of the Corporations Act 2001 (Cth) (the Act), but there has been no application to set aside or review that order. The order in respect of Mr Mackenzie was made under s 596B of the Act, and that in respect of Mrs Mackenzie under s 597(9) of the Act.

3    The interlocutory orders sought effectively encapsulate the respective schedules to the Orders made on 27 January 2015 requiring the production of the documents described in a Schedule. In Mr Mackenzie’s case, the relevant Schedule requires him to produce:

1.    All bank account statements for any and all accounts maintained by any ‘Associated Entity’ of Blue Ridge WA Pty Ltd for the period from 19 April 2013 to 4 December 2014; and

2.    All books, documents, records and accounts (however compiled, recorded or stored) that set out or disclose details of any assets held either in Australia or in any other jurisdiction by Alan Neil Mackenzie and/or any ‘Associated Entity’ of Blue Ridge WA Pty Ltd for the period from 15 December 2010 to 4 December 2014.

4    In the case of Mrs Mackenzie, the interlocutory order sought reflects para 1 of that Schedule and the Order of 27 January 2015.

5    The term “Associated Entity” is defined to include Mr Mackenzie, seven nominated companies; and

•    any spouse, parent, sibling or child of Alan Neil Mackenzie; and/or

•    any other “related entity” (as that term is defined in the [Act] of [Blue Ridge] at the time of the relevant Act.

As the Schedule requires the production of bank account statements, and disclosure of assets, it is not clear what is meant by “the relevant Act” in the definition as the obligation of disclosure relates to a particular period. Perhaps it is intended to say “during the specified period” or at the date of liquidation of Blue Ridge. The Order was made on the basis of a proposed summons put forward by the Liquidators (as defined below) so they may need to revisit that part of the definition.

6    Under r 3.11 of the Federal Court Rules 2011 (Cth), the time by which an application for review of a Registrar’s decision under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) is 21 days. That time may be extended. The application was made 28 days after the Registrar’s Orders. No prejudice is asserted by the Liquidators by the delay. The reason for the delay is explained briefly in the affidavit of Mr Mackenzie. I will extend the date of the interlocutory application to the time within which it may be made.

BACKGROUND

7    John Sheahan and Ian Russell Lock (the Liquidators) are the joint and several liquidators of Blue Ridge WA Pty Ltd (Blue Ridge). Blue Ridge was voluntarily wound up by members’ resolution on 19 April 2013, and the then liquidator conducted an investigation into its affairs. On 25 March 2014, the then liquidator circulated a Final Report to its creditors, advising that his investigations had concluded and that, following a final meeting of creditors of Blue Ridge, he intended to lodge a Final Report with the Australian Securities and Investments Commission and to procure the deregistration of Blue Ridge. That did not occur. On the application of a creditor of Blue Ridge, the Liquidators were then appointed by the Court as the liquidators of Blue Ridge on 22 July 2014 in lieu of the previous liquidator.

8    By order of a Deputy Registrar of the Court made on 25 September 2014, firstly it was ordered that Mr Mackenzie attend for examination pursuant to s 596A of the Act in relation to the examinable affairs of Blue Ridge, and to produce pursuant to s 596D of the Act all books and records in his possession concerning its examinable affairs as set out in Schedule A to the summons for his examination. The schedule is a little different from the Schedule to the summons presently under consideration. It required the same category of books and records, except that the present Schedule explicitly requires the disclosure of assets “held either in Australia or in any other jurisdiction”. It uses the term “held” whereas the earlier summons referred to assets in which Mr Mackenzie had any “legal or beneficial interest”. It covered the period from 15 December 2010, without an end date. The present Schedule also extends the obligation for the disclosure of assets concerning any “Associated Entity” of Blue Ridge. The earlier summons required the production of books etc recording or evidencing any transaction or dealing of Blue Ridge with any Associate Entity, or any movement in any loan account between Blue Ridge and any Associated Entity, and a complementary request that the records of the Associated Entity reflecting that transaction or movement in loan account also be produced. It was confined to the period 15 December 2010 to 19 April 2013.

9    Hence, as can be seen, that the present Order under challenge relates to bank account statements of any Associated Entity of Blue Ridge for the period from 19 April 2013 to 4 December 2014, and books and records disclosing assets held either in Australia or any other jurisdiction by Mr Mackenzie or by any Associated Entity between 15 December 2010 and 4 December 2014.

10    The examination duly took place on 4 December 2014. At the completion of the examination it was adjourned to a date to be fixed. Subsequently, the liquidators wrote to the accountant for Mr Mackenzie, and apparently previously the accountant for Blue Ridge.

11    Following that examination, on 8 December 2004, the liquidators by letter requested Mr Mackenzie through his accountant to produce documents, generally speaking, meeting the description of the present summons. That request was to be met by 18 December 2014. Mr Mackenzie through his accountant responded on 18 December 2014 that the documents requested would not be made available without the provision of a Court order setting out what documents are reasonably required.

12    Subsequently, the order of 25 January 2015 was made which is the subject of the present issue.

CONSIDERATION

13    The “first glance” consideration of the submissions of Mr Mackenzie and Mrs Mackenzie indicates that their contentions have merit.

14    The scope of any proper request for production (or any examination) is the “examinable affairs” of Blue Ridge, as defined in s 9 of the Act as follows:

(a)    the promotion, formation, management, administration 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).

15    It is not immediately obvious that the bank accounts of any “Associated Entity” of Blue Ridge between 19 April 2013 and 4 December 2013, or that the assets of Mr Mackenzie or of any Associated Entity of Blue Ridge after 19 April 2013, could provide any information relevant to its examinable affairs. From the date of liquidation, the affairs of Blue Ridge have been under the control first of the earlier liquidator and then of the Liquidators. It is also said that there is no evidence to suggest Mrs Mackenzie had any dealings with, or in relation to, Blue Ridge or its assets at any material time. In her case, too, her banking records after 19 April 2013 are not apparently relevant to its examinable affairs in any event, as it is after the date of the liquidation.

16    Moreover, in the case of Mr Mackenzie, as he points out, he has been required by the original summons to produce all documents he has concerning Blue Ridge and its affairs, and there is no apparent suggestion that he has not done so. The Liquidators are said to have, or have access to, the affidavits he filed in a separate proceeding in the Court (Matter SAD 269/2012) in which Transverse Pty Ltd on 26 October 2012 commenced proceedings against Blue Ridge and himself (the Transverse action). The claim against Blue Ridge was stayed following its liquidation. As against Mr Mackenzie, the trial has occurred and judgment is reserved. On 13 May 2014, the Court in that proceeding made orders by consent freezing his assets, and requiring him to disclose his assets by affidavit. His affidavits in that proceeding of 30 May 2014 and 7 July 2014 (and confirmed by his accountant’s affidavit also of that date) are said to comply with that order. Those documents have been exhibited to his affidavit in support of the present application.

(1)    Procedural Objection

17    Before further considering those general issues, it is necessary to deal with a technical objection to the Orders of the Deputy Registrar. Mr Mackenzie says that ss 596D(2) and 597(9) of the Act do not empower the Court to order the production of documents except “at an examination”, and not in advance of an examination. Moreover, he says the Orders of 27 January 2015 required the production of the documents to the Court, but did not specify a time by which that should be done.

18    The point is correct. Section 596D complements the examination power under s 596A, so (as might be expected), it says the summons to attend for examination must specify a time and date and place to do so, and the summons may require the person to be examined to produce specified documents. In the case of Mr Mackenzie, strictly speaking, the Deputy Registrar would call on the adjourned examination, make an order adjoining it to a fixed date, make the order for further production (subject to the resolution of the substantive issues in this application) in the terms of the order made on 25 January 2015, have the order complied with by Mr Mackenzie attending and producing the documents, directing that the Liquidators should have access to the documents under (s 596F(1)(e), and probably then further adjourning the examination to a further date so that the Liquidators could examine and consider the documents produced before further conducting the examination.

19    In the case of Mrs Mackenzie, the order for production was made under s 597(9). It does not expressly say the order must be made at an examination, but permits an order to be made for the production, at an examination of a person, the documents of another person. Again, the procedure of the Deputy Registrar would have been to fix a time for the resumption of Mr Mackenzie’s examination, make the order for the production by Mrs Mackenzie (again subject to resolution of the substantive issues on this application) of the documents required of her, fixing a date for the further adjournment of the examination, and then further adjourning the examination to a particular date (with the process for production, adjournment and later examination referred to above).

20    The point, although valid, involves only practical inconvenience for Mr and Mrs Mackenzie. It is readily accommodated but at their potential inconvenience. I assume that the Deputy Registrar has, or will either by consent or after hearing the parties, adopt that procedure. It is a standard procedure. The course adopted by the Deputy Registrar appears to be an attempt to avoid that inconvenience. It can readily be corrected by specifying a date for the resumed examination, and thus for the date for the production of documents.

21    It is clear, in my view, that the Court has the power under Div 1, Part 5.9 of the Act to make orders for the production of documents in the course of an examination, as has been done here. Commonsense says that must be so. Otherwise, a critical issue may emerge in the course of an examination which may not be able to be addressed properly or at all. Section 597(16) expressly permits the adjournment of an examination. That, therefore, would accommodate orders such as further production orders, rather than the making of a fresh examination order. See also at s 33(1), Acts Interpretation Act 1918 (Cth).

(ii)    The Liquidators’ Contention

22    The Liquidators point out that s 53 of the Act means that the examinable affairs of Blue Ridge include:

(1)    the 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), outgoings and expenditure of the company; and

(2)    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 the company is being wound up.

23    The justification for the Orders sought and granted is said to derive from the course of Mr Mackenzie’s examination. The transcript of that examination (exhibited to the affidavit of Oliver Sheahan affirmed on 20 January 2015) indicates the following matters.

24    Kintail Nominees (WA) Pty Ltd (Kintail Nominees) is the trustee of the Kintail Family Trust. Blue Ridge would, from time to time, transfer surplus cash into an account operated by Kintail Nominees. Going the other way, Mr Mackenzie said that where Blue Ridge required additional working capital, funds would be loaned to it from Kintail Nominees. The material, he acknowledged, showed that as at 1 July 2012, Blue Ridge had an outstanding loan due to Kintail Nominees in the sum of $669,550. In addition, he agreed that certain records showed in October 2012 that Blue Ridge made payments to other related entities totalling $668,000 and $260,000 purportedly to reduce its loan liabilities to those entities, and on 15 November 2012, Blue Ridge made a transfer of $900,000 to Kintail Nominees which was described in its books and accounts as “Alan Mackenzie”, and which amount was to be “re-distributed”. He said that where the accounts of Blue Ridge state that various transfers of funds were made to “Alan Mackenzie” of over $1.8 million in the 12 months prior to the liquidation of Blue Ridge, those transfers were not to him personally as he had no bank account in Australia but they were transfers to either Kintail Nominees or to other related entities.

25    Mr Mackenzie also acknowledged that he had said, during a break in the examination, to an employee of the Liquidators that nothing could be recovered from him because he had moved his money overseas. When questioned further, he said that was a sarcastic remark, and he denied having any assets or bank accounts outside Australia or that he had transferred any funds of Blue Ridge outside Australia.

26    He also said that funds transferred from Blue Ridge, generally recorded as transferred to him, were through his actions transferred to an associated entity, which may have included on occasion Kintail Nominees trustee for the Kintail Family Trust and that distributions from that Trust, arranged by his accountant, may have included distributions to his wife. He also agreed that the net proceeds of the sale of two properties in Perth owned by him and sold after December 2010 were paid to his wife, but he had no knowledge of the bank account or accounts which she operated.

27    I note that the Liquidators refer to another passage in the transcript of his examination where (it is submitted) Mr Mackenzie said some payments by Blue Ridge recorded as payments to him and by his action paid to others, included some payments to Kintail Nominees. It is also submitted that he said they may also have been paid to Mrs Mackenzie. The reference given does not support that last proposition, and I have not identified on my perusal of the transcript that Mr Mackenzie in fact said that. I proceed on the basis that he did not do so. However, he also said that his own salary from Blue Ridge was paid into his wife’s bank account, and then was withdrawn for his use in his day to day activities.

28    The Liquidators say that, as a result of the information available to them including Mr Mackenzie’s examination thus far, they are investigating:

(1)    the extent of Blue Ridge’s loans to or dealings with Kintail Nominees and/or to other Associated Entities;

(2)    whether funds transferred from Blue Ridge to Kintail Nominees and/or to entities or persons associated with Blue Ridge, have subsequently been disbursed and if so, when those funds were disbursed, including up to the current date, and where those funds are now held;

(3)    whether Kintail Nominees and/or entities or persons associated with Blue Ridge have received payments in contravention of s 588FA of the Act – that is whether such payments are unfair preferences; and

(4)    whether Mr Mackenzie has breached his fiduciary duties to Blue Ridge in transferring funds to Kintail Nominees and/or to entities or persons associated with Blue Ridge.

They say also that the documents they are seeking will assist them in tracing the ultimate recipient of any loan repayments or other transfers of funds from Blue Ridge, in identifying who the proper respondent(s) are to any action for contraventions of s 588FA of the Act; in revealing whether any loan repayments have subsequently been distributed to the beneficiaries of the Kintail Family Trust; in revealing whether funds transferred from Blue Ridge recorded as transfers to Alan Mackenzie, but which he now claims were deposited in other individual or corporate bank accounts, have been disbursed, and if so where; and in assisting them to assess whether the recipient(s) of the transfers have sufficient assets to meet a claim against them.

29    In relation to Mrs Mackenzie, they say they are also investigating:

(1)    the extent of the assets held by Mrs Mackenzie on trust for Mr Mackenzie; and

(2)    whether Mrs Mackenzie has received distributions from the Kintail Family Trust, and if so, whether those distributions were made from monies received from Blue Ridge;

and further that her bank records sought from Mrs Mackenzie will also assist them to assess whether Mr Mackenzie has sufficient assets to meet a claim against him; whether Kintail Nominees has sufficient assets to meet a claim made against it; and whether a cause of action lies against Mrs Mackenzie, or others to whom she may have transferred funds, and if so whether she has sufficient assets to meet a claim against her, and if not, where those funds have been disbursed to, when they were disbursed and whether the entities or persons now holding those funds have sufficient assets to meet a claim against them.

30    It is in that general factual context that the present application is to be resolved.

(iii)    Power of the Court

31    I do not accept that the Court does not have power to have made the Orders, because it does not (as Mr Mackenzie asserts) “have jurisdiction to deal with assets outside Australia”.

32    Without the need to consider that particular proposition, it wrongly conflates dealing with assets outside Australia and dealing with persons or entities within Australia. The power to do that clearly exists. Nor can it be said that the Liquidators cannot properly pursue their investigation concerning the affairs of an Australian company merely because it has or may have assets outside Australia.

33    Secondly, in my view there is evidence sufficient to “give rise to a suggestion” (an expression used in Mr Mackenzie’s submission) that his wife or children, as beneficiaries of the Kintail Family Trust, may have been the recipients of monies of Blue Ridge nominally paid to Mr Mackenzie but possibly paid to Kintail Nominees as trustee of that Trust, and then distributed to one or more of them. In particular, I note his evidence that Mrs Mackenzie received the net proceeds of sale of two properties of Mr Mackenzie, and receives and apparently allows access to her bank account to Mr Mackenzie to deal with his salary from Blue Ridge, and that she is a beneficiary of the Trust and Kintail Nominees has received some of the payments by Blue Ridge recorded as payments to Mr Mackenzie.

34    Thirdly, I do not accept the claim that the Orders under review were procured for an improper purpose. There is no basis for a finding (as asserted) that the Liquidators are seeking to serve the interests of Transverse in the Transverse action, by enabling it to better enforce any judgment it may obtain against Mr Mackenzie.

(iv)    Substantive Issues

35    There remain the contentions that the documents sought are not relevant to the examinable affairs of Blue Ridge, or at least are too widely expressed in a number of respects to all fall within that description, and additionally or alternatively are oppressive having regard to the documentary material available to the Liquidators.

36    I accept the contention on behalf of the Mackenzies that the predominant purpose of the examination must be for the benefit of the corporation, its contributories or its creditors: Re Excel Finance Corporation Ltd; Worthley v England (1994) 52 FCR 69 at 93; Re New Tel Ltd (In Liq); Evans v Wainter Pty Ltd (2005) 145 FCR 176.

37    Moreover, even if that test is satisfied, orders for production of documents will be set aside if they are oppressive, unfair or an abuse of process of the Court. A summons may be set aside for being too broad: see Re Nielsen & Moller Autoglass (NSW) Pty Ltd (In Liq) (2008) 222 FLR 21. Whether or not the scope of documents sought is oppressive is a question of fact: Re Geneva Finance Ltd (receiver and manager appointed); ex parte Quigley [2001] WASC 302. Obviously, too, there must be a connection between the order for production of documents and the purposes of the examination. If there is not, the order will be oppressive: Re BPTC Ltd (in liq) (1993) 10 ACSR 756 at 762-3; Re Southland Coal Pty Ltd (rec and mgrs apptd) (in liq) (2006) 58 ACSR 113.

38    The cases indicate that documents which enable the Liquidator to assess whether there is a viable cause of action available to them, which may permit the tracing payments from the company, which may identify the ultimate recipient of any loan repayments and when those payments were received, and which may indicate whether particular persons or entities have the means to satisfy any judgment that may follow successful proceedings are all within the examinable affairs of a corporation: see generally Grosvenor Hill (Queensland) Pty Ltd v Barber [1994] FCA 921 at [25]; and Gerah Imports Pty Ltd v The Duke Group Ltd (in liq) [1993] SASC 4359 at [34].

39    I will address the terms of the Schedules to the Orders under review in sequence for the purpose of considering, in the light of what I consider the evidence shows, whether either of those two remaining grounds of challenge to the orders is made out.

40    In the case of the documents required to be produced by Mr Mackenzie, as there is material suggesting that Blue Ridge made payments to its Associated Entities from time to time, and that in its records Mr Mackenzie was the designated recipient of those payments, but they were then applied by him elsewhere (precise details of which he has not provided), I consider that the production of banking records as required by Item 1 in his Schedule is a proper request in general terms.

41    However, in view of the date of insolvency, and as the evidence presently does not suggest any such payments were or could have been made after the date of its liquidation, I do not see a proper reason for extending that requirement to 4 December 2014. It should extend to allow for the recording of payments made by Blue Ridge prior to 19 April 2013 and accounted for after that date. It is very unlikely such payments were held but unaccounted for up to December 2014. In my view, subject to the following paragraph, the reasonable outer limit is 31 December 2013.

42    It is also said that “Associated Entity” for this purpose should not include “any spouse, parent, sibling or child” of him. Mr Mackenzie has said that the use of Kintail Nominees as trustee for the Kintail Family Trust may have received certain of those funds and distributed them to beneficiaries of that Trust. There are two things to observe about that. There is clearly an evidentiary basis for the Liquidators to wish to investigate the deployment of monies by Kintail Nominees to the beneficiaries of the Trust, as it may well have received Blue Ridge monies through the intervention of Mr Mackenzie. Mr Mackenzie acknowledged that the beneficiaries are his wife and children. There is no apparent foundation for asserting that the beneficiaries include his parents or siblings. Those words should be removed from the relevant part of the definition of “Associated Entity”. The second concerns the relevant period for the production of the bank records of Kintail Nominees, Mrs Mackenzie and their children. The selection of the date 31 December 2013 in the preceding paragraph may not be the reasonable outer limit of when funds transferred from Blue Ridge (up to 19 April 2013) to Kintail Nominees were distributed by it. In my view, that period can reasonably be extended to 4 December 2014 to allow investigation of distributions made or resolved to be made in the succeeding financial year or the implementation of the decision of the Trustee made up to the end of financial year 30 June 2014. It follows that the period for the production of banking records of Kintail Nominees is properly expressed to 4 December 2014.

43    The purpose of Item 2 of the Schedule is apparently twofold:

(1)    to see how the respective asset position has changed, so that any relevant change in the asset position of Mr Mackenzie and/or an Associated Entity may indicate that that person or entity has acquired an asset reflecting the receipt of, or the benefit of the receipt of, Blue Ridge monies; and

(2)    to see the asset position of potential defendants/respondents in any claim by the Liquidators against that entity or person.

Either purpose is a legitimate one.

44    In my view, the required documents are properly relevant to the examinable affairs of Blue Ridge. That is so more particularly because the examination of Mr Mackenzie left unresolved questions about the amount of the Blue Ridge payments to “Mark Mackenzie” as recorded in its documents that were paid to any of the Associated Entities, or how then those amounts were applied, although there were some very significant payments made.

45    I also do not consider that the order in its terms is oppressive. It requires documents that “set out or disclose details of any assets held”. That is a narrow description. It does not on its face suggest a vast quantity of documents. There is no evidence to suggest the task is very substantial.

46    I would confine the period of such records to be produced to 31 December 2013 if their purpose was confined to (1) in [40] above, but having regard to purpose (2) in the same paragraph, I see no reason to regard it as oppressive to require documents concerning the asset position to be produced up to 4 December 2014.

47    In the case of Mr Mackenzie himself, the Liquidators now have access to his affidavits as to his assets filed in the Transverse action as he has produced them as exhibits to his affidavit in support of the present application. It is not clear if they had access to them earlier. The affidavits do not lead to the conclusion that the summons directs production of documents which are not relevant, or which it would be oppressive to require.

48    In relation to Mrs Mackenzie, for reasons which are apparent from the above, I do not consider that the production of her bank records is a requirement for documents not relevant to the examinable affairs of Blue Ridge. Nor do I consider it oppressive. That assessment has been made largely upon the evidence procured from Mr Mackenzie during his examination, and in particular his inability to give much detail about the monies she may have received through the Kintail Family Trust, or perhaps even directly, which was received from Blue Ridge and recorded by it as paid to Mr Mackenzie. I consider that the date 4 December 2014 as the outer date is not itself inappropriate for the reasons already given.

ORDERS

49    The Orders of the Deputy Registrar, expressly made under ss 596D and 597(9) have the technical, though understandable, flaw referred to above. For that reason, it is necessary to review the orders. I will do so, in effect by directing the fixing of a date for the resumed examination of Mr Mackenzie, and for the production of those documents on that time and date. It is up to the Liquidators, by arrangement with the Registrar presiding at the examination, as to whether the examination is then further adjourned once the documents have been produced and orders made (if appropriate) for their inspection by the Liquidators.

50    The one respect in which I have otherwise directed that, on review, the terms of the orders should be more limited are reflected in the orders made.

51    Having regard to the limited success of the Mackenzies on their application, there is no order as to costs made on the application. I indicate that the costs of the Liquidators in the winding up should properly include their costs of and incidental to resisting the current application.

Associate:

Dated:    10 June 2015