FEDERAL COURT OF AUSTRALIA

Yeo and Rambaldi (as liquidators), in the matter of Rennie Produce (Aust) Pty Ltd (in liquidation) (No 3) [2017] FCA 442

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 597(9) of the Corporations Act 2001 (Cth) the proper officer of the Mizrahi Tefahot Bank produce or cause to be produced to the Federal Court of Australia, Melbourne Registry, Level 7, 305 William Street, copies of the following documents by no later than 10.00 a.m. on 31 July 2017:

(a)    The account opening form or application (or equivalent) for each of the accounts listed in Schedule 1.

(b)    Documents including bank statements recording the movement of funds into and out of the account listed in Schedule 1 for the period 3 October 2012 to date.

(c)    Documents identifying the account holders, contact details, contact persons, addresses and signatories, of each of the accounts listed in Schedule 1, including copies of the signatures of each of the signatories to those accounts.

2.    The Applicants have leave to uplift, inspect and copy documents produced pursuant to this order.

3.    The Applicants pay Mizrahi Tefahot Bank’s reasonable costs of complying with this order.

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

SCHEDULE 1

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 597(9) of the Corporations Act 2001 (Cth) the proper officer of Deutsche Bank (Switzerland) Ltd of Place des Bergues, 3, Geneva, Switzerland (“Deutsche Bank”) produce or cause to be produced to the Federal Court of Australia, Melbourne Registry, Level 7, 305 William Street, copies of the following documents by no later than 10.00 a.m. on 31 July 2017:

(a)    The account opening form or application (or equivalent) for the account listed in Schedule 1.

(b)    Documents including bank statements recording the movement of funds into and out of the account listed in Schedule 1 for the period 3 October 2012 to date.

(c)    Documents identifying the account holders, contact details, contact persons, addresses and signatories, of the account listed in Schedule 1, including copies of the signatures of each of the signatories to those accounts.

2.    The Applicants have leave to uplift, inspect and copy documents produced pursuant to this order.

3.    The Applicants pay Deutsche Bank’s reasonable costs of complying with this order.

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

SCHEDULE 1

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 597(9) of the Corporations Act 2001 (Cth) the proper officer of Bank of Communications Co Ltd (Hong Kong) of 1/F Far East Consortium Building, 121 Des Voeux, Central, Hong Kong (“Bank of Communications”) produce or cause to be produced to the Federal Court of Australia, Melbourne Registry, Level 7, 305 William Street, copies of the following documents by no later than 10.00 a.m. on 31 July 2017:

(a)    The account opening form or application (or equivalent) for the account listed in Schedule 1.

(b)    Documents including bank statements recording the movement of funds into and out of the account listed in Schedule 1 for the period 3 October 2012 to date.

(c)    Documents identifying the account holders, contact details, contact persons, addresses and signatories, of the account listed in Schedule 1, including copies of the signatures of each of the signatories to those accounts.

2.    The Applicants have leave to uplift, inspect and copy documents produced pursuant to this order.

3.    The Applicants pay Bank of Communications’ reasonable costs of complying with this order.

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

SCHEDULE 1

ORDERS

THE COURT ORDERS THAT:

1.    The time for compliance by Deutsche Bank (Switzerland) Ltd with paragraph 1 of the orders made by this Court on 14 August 2015 and varied by this Court on 29 April 2016 and 28 July 2016 be extended to 31 July 2017.

2.    The time for compliance by UBS AG (Switzerland) with paragraph 1 of the orders made by this Court on 29 April 2016 and varied by this Court on 28 July 2016 be extended to 31 July 2017.

3.    The time for compliance Mizrahi Tefahot Bank (previously United Bank of Mizrahi) with paragraph 1 of the orders made by this Court on 29 April 2016 and varied by this Court on 28 July 2016 be extended to 31 July 2017.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    The applicants seek four orders in this application, which are broadly as follows:

(1)    An order pursuant to s 597(9) of the Corporations Act 2001 (Cth) (the ‘Act’) that certain overseas financial institutions by their respective proper officers, produce or cause to be produced certain documents to the Federal Court of Australia.

(2)    An order that the applicants have leave to uplift, inspect and copy those documents.

(3)    An order that the applicants pay the costs of compliance with the above orders.

(4)    An order for an extension of time for certain overseas financial institutions to comply with previous orders of this Court.

BACKGROUND

2    These proceedings relate to ongoing investigations concerning Rennie Produce (Aust) Pty Ltd (in liquidation) (‘RPA’).

3    On 14 August 2015, I made orders in Yeo and Rambaldi (as liquidators), in the matter of Rennie Produce (Aust) Pty Ltd (in liquidation) [2015] FCA 849 (the ‘First Orders’) in respect of the production of documents by several foreign financial entities, and subsequently signed letters directed to several foreign courts requesting their aid in enforcing orders in respect of the production of documents.

4    On 29 April 2016, I made further orders of a similar nature in Yeo and Rambaldi (as liquidators), in the matter of Rennie Produce (Aust) Pty Ltd (in liquidation) (No 2) [2016] FCA 449 (the ‘Second Orders’).

5    In my Reasons in relation to the First Orders, I set out at paragraphs [2]-[5] the relevant background to the applicants’ application for overseas financial institutions to produce the necessary documents to this Court. In my Reasons in relation to the Second Orders, I set out at paragraphs [7]-[12] the additional information relevant to the applicants’ subsequent application for further (similar) orders.

6    The applicants in this proceeding rely upon my Reasons in relation to the First Orders and Second Orders, as well as an affidavit of Mr Andrew Reginald Yeo, a joint liquidator of RPA and a plaintiff in this proceeding, sworn on 15 February 2017.

7    In his affidavit, Mr Yeo outlines the progress of his investigations as liquidator. He deposed that:

(1)    On 29 August 2016, the Standard Chartered Bank of New York complied with the summons served on it by the New York Court in accordance with the First Orders of this Court by emailing a large soft copy spreadsheet (‘SCBNY Compliance Spreadsheet’) to Mr Yeo’s legal representative.

(2)    The SCBNY Compliance Spreadsheet discloses additional offshore bank accounts which appear to be Offshore Accounts as defined in the Deed of Settlement. (The Deed of Settlement requires various entities related to RPA to repatriate particular funds or assets located outside Australia.) These accounts are:

(a)    Account 91020520000000128365 at Mizrahi Tefahot Bank (Israel) (‘Offshore Account 12’); and

(b)    Account CH1408263077888015000 at Bank of SAL. Oppenheim Jr. UND CIE (Switzerland) (‘Offshore Account 13’).

(3)    In October 2016, DBS Bank (Honk Kong) Limited provided various documents to Mr Yeo in compliance with a Production Order issued by the High Court of the Hong Kong Special Administration Region in accordance with the First Orders of this Court. These documents included:

(a)    a limited transaction history for a bank account held in the name of Peng Fu Limited (BVI) with number 7884414520 (referred to as Offshore Account 2 in prior proceedings) (the ‘Peng Fu Bank Statement’); and

(b)    Remittance Advice Statements.

(4)    The Peng Fu Bank Statement and the Remittance Advice Statements disclose an additional offshore bank account in which funds were not repatriated to Australia in accordance with the Deed of Settlement. This account is:

(a)    Account 55593008396 at Bank of Communications Co. Ltd. HO (Hong Kong) (‘Offshore Account 14’).

8    Mr Yeo deposed that he required bank records in relation to Offshore Account 12, Offshore Account 13 and Offshore Account 14 in order to determine the extent of RPA’s rights to recover funds held in those accounts, and also to determine whether there were other funds that had not been repatriated pursuant to the Deed of Settlement.

CONSIDERATION

9    The applicants seek orders pursuant to s 597(9) of the Act. That subsection contains the following text:

The Court may direct a person to produce, at an examination of that or any other person, books that are in the first-mentioned person’s possession and are relevant to matters to which the examination relates or will relate.

10    It is common that a person seeking orders pursuant to s 597(9) will also seek directions pursuant to s 581(4), which concerns the sending of a letter of request to a court in the relevant foreign jurisdiction. However, this Court has not now been asked for a further direction, presumably because appropriate directions have already been obtained for (and letters of request sent to) the relevant jurisdictions.

11    In my Reasons in relation to the First Orders, I set out at paragraphs [6]-[15] the legal principles relevant to the application of s 597(9) (and s 581(4)) of the Act. Such principles also apply in respect of this application and do not need to be restated.

12    For the reasons set out in the affidavit of Mr Yeo, when viewed in the context of my previous Reasons in relation to the First Orders and Second Orders, I consider that the orders sought by the applicants in this application pursuant to s 597(9) should be made. The documents sought are relevant to the examinations being conducted by the applicants and, in particular, to identifying the quantum and whereabouts of funds that may have been transferred offshore by various entities related to RPA (including its former director, Mr Paul Rennie) but not repatriated. Any such funds would be an asset of the RPA in liquidation by reason of the terms of the Deed of Settlement entered into by the parties.

13    The documents in respect of which production is sought are documents in the possession of financial institutions that will assist the liquidators in identifying the quantum and whereabouts of offshore funds belonging to RPA and in conducting further examinations of relevant persons if necessary.

CONCLUSION

14    On the basis of the above reasons, I make the orders sought by the applicants in their application. This will include an extension of time in the form proposed by the applicants.

Associate:

Dated:    28 April 2017