Federal Court of Australia
Yeo, in the matter of Rennie Produce (Aust) Pty Ltd (in liq) [2020] FCA 1171
ORDERS
DATE OF ORDER: | 14 August 2020 |
THE COURT ORDERS THAT:
1. Pursuant to section 596B of the Corporations Act 2001 (Cth) (‘Act’), a summons for public examination of the following persons is to be issued in the form set out in Schedule 1:
(a) Cheung Fong Chau Alan of 16E, Kwun Hoi Mansion, Lei King Wan, Sai Wan Ho, Hong Kong;
(b) Fung Hung Chun of Flat A, 25/F Ying Piu Mansion, 1 Breezy Path, Mid-level, Hong Kong; and
(c) Chong Sze Wai Rebecca of Room 2402 Wun Sha Tower, 33-45 Wun Sha Street, Hong Kong,
together, the Examinees.
2. Pursuant to section 581(4) of the Act, this Court requests the High Court of Hong Kong at 38 Queensway Hong Kong, to act in aid of, and be auxiliary to, this Court in relation to summoning for examination, and examination of, each of the Examinees, such request to be made by the issue of a letter of request in the form set out in Schedule 2.
3. The Applicants have leave to serve the summons for examination on the Examinees, along with a copy of this order and the letter of request, in Hong Kong.
4. The Examinees are excused from compliance with the summons where they comply with orders made by the High Court of Hong Kong pursuant to the letter of request referred to in order 2.
5. A letter of request in the terms initialled on the Court file for identification be transmitted by the solicitors for the applicants to the High Court in Hong Kong.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Schedule 1
Appendix 1
Schedule 1
Appendix 2
Schedule 1
Appendix 3
Schedule 2
The Honourable Mr Justice Poon
Chief Judge of the High Court
High Court of Hong Kong
LG1, High Court Building
38 Queensway
HONG KONG
Dear Judge,
IN THE MATTER OF RENNIE PRODUCE (AUST) PTY LTD (IN LIQUIDATION) ACN: 076 403 542
Case Number: VID 1199/2013
The Federal Court of Australia hereby requests the High Court of Hong Kong to assist this court and to act in aid of and to be auxiliary to this court in respect of the winding up of Rennie Produce (Aust) Pty Ltd (in liquidation) (ACN 076 403 542) by making orders, to the extent it has jurisdiction to do so, as follows:
1. Orders recognising and giving effect to Andrew Reginald Yeo and Gess Michael Rambaldi of Pitcher Partners, Official Liquidators, having been appointed Liquidators of Rennie Produce (Aust) Pty Ltd on 9 August 2010.
2. Orders recognising and giving effect to the attached orders made by the Federal Court of Australia pursuant to section 596B of the Corporations Act 2001 (Cth) on 14 August 2020 that Cheung Fong Chau Alan, Fung Hung Chun and Chong Sze Wai Rebecca be examined about the examinable affairs of Rennie Produce (Aust) Pty Ltd (in liquidation).
3. Such Orders as it would be open to:
(a) the Federal Court of Australia to make if the persons referred to in paragraph 2 above had been within the territorial jurisdiction of the Federal Court of Australia; and
(b) the High Court of Hong Kong to make if Rennie Produce (Aust) Pty Ltd (in liquidation) had been a company formed and incorporated in Hong Kong and was being wound up in Hong Kong,
by way of assisting the Liquidators in the exercise of their powers and the discharge of their duties and functions as Liquidators.
4. Such further orders as the High Court of Hong Kong may consider just and appropriate.
Dated: 14 August 2020
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The Hon. Justice John Eric Middleton
A Judge of the Federal Court of Australia
MIDDLETON J:
INTRODUCTION
1 The applicants seek five orders in this application, which are broadly as follows:
(1) an order pursuant to s 596B of the Corporations Act 2001 (Cth) (the ‘Act’) that a summons for public examination of Cheung Fong Chau Alan, Fung Hung Chun and Chong Sze Wai Rebecca (the ‘Examinees’) be issued;
(2) an order pursuant to s 581(4) of the Act, that this Court requests the High Court of Hong Kong, to act in aid of, and be auxiliary to, this Court in relation to summoning for examination, and examination of, each of the Examinees;
(3) an order that the applicants have leave to serve the summons for examination on the Examinees, along with a copy of this order and a letter of request, in Hong Kong;
(4) an order that the Examinees be excused from compliance with the summons where they comply with orders made by the High Court of Hong Kong pursuant to a letter of request; and
(5) an order that a letter of request be transmitted by the solicitors for the applicants to the High Court in Hong Kong.
2 The factual matters supporting the current application are set out in the affidavit of Andrew Schnaider affirmed 22 July 2020, a partner of the firm SBA Law, solicitors for the applicants, whose evidence I accept.
BACKGROUND
3 These proceedings relate to ongoing investigations concerning Rennie Produce (Aust) Pty Ltd (in liquidation) (the ‘Company’).
4 The detailed background to these proceedings is to be found in my earlier judgments in Yeo and Rambaldi (as liquidators), in the matter of Rennie Produce (Aust) Pty Ltd (in liquidation) [2015] FCA 849 (‘Yeo (No 1)’ ), Yeo and Rambaldi (as liquidators), in the matter of Rennie Produce (Aust) Pty Ltd (in liquidation) (No 2) [2016] FCA 449 (‘Yeo (No 2)’) and Yeo and Rambaldi (as liquidators), in the matter of Rennie Produce (Aust) Pty Ltd (in liquidation) (No 3) [2017] FCA 442 (‘Yeo (No 3)’).
5 For the purposes of the current proceedings, I note the following facts.
6 On 9 August 2010, Andrew Reginald Yeo and Gess Michael Rambaldi were appointed as the joint and several liquidators (the ‘Liquidators’) of the Company by resolution of the Company’s creditors at a meeting of creditors called pursuant to s 497 of the Act.
7 On 14 August 2015, I made orders:
(1) for the production of documents by the proper officers of DBS Bank (Hong Kong) Ltd and the Hong Kong and Shanghai Banking Corporation Ltd (together, the ‘HK Banks’) pursuant to s 597(9) of the Act (the ‘Australian Production Orders’); and
(2) pursuant to s 581(4) of the Act, that the Court send a letter to the High Court of Hong Kong requesting that court act in aid of the Australian Production Orders.
8 The Liquidators have applied to the High Court of Hong Kong for various orders in respect of the HK Banks. As a consequence of that application, by orders made on 26 August 2016, Harris J of the High Court of Hong Kong recognised the appointment of Messrs Yeo and Rambaldi as liquidators of the Company and conferred on them such powers as would be available to them under the laws of Hong Kong as if they had been appointed liquidators of the Company under the laws of Hong Kong (the ‘Recognition Order’).
9 His Lordship also made orders on the same day for the production of documents by Hongkong and Shanghai Banking Corporation and DBS Bank relating to the assets of the Company.
10 The Liquidators subsequently applied to the High Court of Hong Kong, pursuant to Order 2.4 of the Recognition Order, made by way of summons dated 5 December 2019 for the examinations of, and the productions of documents by, the Examinees in relation to the trade, dealings, affairs or property of the Company (the ‘Summons’). Mr Yeo swore an affidavit on 24 October 2019 supporting the application for Summons to be issued to the Examinees, which was exhibited to the affidavit of Mr Schnaider.
11 The Examinees opposed the making of the orders sought in the Summons, and relied upon the affirmation of Mr Chueng dated 24 February 2020.
LEGAL PRINCIPLES
12 Sections 596B and 581(4) of the Act confer discretionary powers on the court.
13 Section 596B provides that:
(1) 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.
(2) This section has effect subject to section 596A.
14 In Cunningham, in the matter of Australasian Liquid Storage Pty Ltd (in liq) [2017] FCA 559, Derrington J set out the legal principles applicable to s 596B, which do not need to be restated. As to the scope of “examinable affairs”, I set out at paragraph 10 of Yeo (No 1) the relevant legal principles. Such principles also apply in respect of the current application.
15 Section 581(4) of the Act provides that:
The Court may request a court of an external Territory, or of a country other than Australia, that has jurisdiction in external administration matters to act in aid of, and be auxiliary to, it in an external administration matter.
16 I set out the legal principles relevant to the application of s 581(4) of the Act in Yeo (No 1) at [6], [11]-[15], which principles apply in relation to the current application. I observe that it is common that a person seeking orders pursuant to s 596B will also seek orders pursuant so s 581(4), which concern the sending of a letter of request to a court in the relevant foreign jurisdiction.
CONSIDERATION
17 For the reasons set out in the affidavits of Messrs Schnaider and Yeo (which I referred to earlier in these reasons), when viewed in the context of my previous reasons in relation to Yeo (No 1), Yeo (No 2) and Yeo (No 3), I consider that the orders sought by the applicants in this application pursuant to ss 596B and 581(4) of the Act should be made. I am satisfied that the Examinees may be able to give information about the examinable affairs of the Company.
CONCLUSION
18 On the basis of the above reasons, I make the orders sought by the applicants in their application.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton. |
Associate:
