Federal Court of Australia

Capital Options (Aust) Pty Ltd v Hazratwala, in the matter of Weststate Consortium (in liq) [2023] FCA 458

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth), the time for making the interlocutory application filed on 30 January 2023 is extended to that date.

2.    Orders 1 to 5 of the Orders of Registrar Lynch dated 19 December 2022 be set aside.

3.    The summonses for public examination issued to:

(a)    Dr Kaushik Hazratwala;

(b)    Dr Kiran Hazratwala;

(c)    Dr Peter McEwan;

(d)    Mr David Kippin; and

(e)    Mr Michele Falconieri

be discharged.

4.    The originating application be dismissed.

5.    By 4pm on 24 May 2023, the defendants file and serve written submissions no longer than 5 pages on the question of costs.

6.    By 4pm on 31 May 2023, the plaintiff file and serve any written submissions no longer than 5 pages in reply on the question of costs.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

1    On 19 December 2022, a Registrar of the Court ordered (Orders) that summonses pursuant to ss 596A and 596B of the Corporations Act 2001 (Cth) respectively be issued to:

(1)    Dr Kiran Hazratwala, Dr Peter McEwen, Dr Kaushik Hazratwala, and Moira Carter (the mandatory examinees); and

(2)    David Kippin; Michele Falconieri, and Anthony Miskiewicz (the discretionary examinees)

to be examined about the examinable affairs of Weststate Consortium Pty Ltd (Consortium) and to produce to the Court all books and records in their possession relating to Consortium’s examinable affairs.

2    The summonses were issued on the originating application of Capital Options (Aust) Pty Ltd supported by an affidavit of Craig Stephen Bax dated 17 October 2022 (Aff-CSB) and an affidavit of service of Mr Bax dated 11 November 2022. Both the originating application and Mr Bax’s affidavits remain confidential pursuant to s 596C(2) of the Corporations Act and the Orders. Mr Bax is the sole director and shareholder of Capital Options and is a former solicitor. Mr Bax represented Capital Options on the hearing of the originating application, leave having been given by the Registrar.

3    Three interlocutory applications were filed seeking review of the Registrar’s exercise of power: r 3.11 Federal Court Rules 2011 (Cth). The interlocutory application filed on behalf of Moira Carter has been discontinued by consent. Mr Miskiewicz has not filed any relevant application. Before the Court now are the two remaining interlocutory applications.

4    The first application, filed on behalf of Dr Kiran Hazratwala, Dr Peter McEwen, Dr Kaushik Hazratwala, and Mr David Kippin on 18 January 2023, seeks orders pursuant to r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) discharging them from summonses for public examination on the facts stated in the affidavit of Dr Kaushik Hazratwala filed 18 January 2023 (Aff-KH) in support of the application.

5    The second application, filed on behalf of Mr Michele Falconieri on 30 January 2023, seeks an extension of time to discharge the summons for examination pursuant to r 1.10 of the Corporations Rules and/or r 1.39 of the Rules, an order for a review of the exercise of the Registrar’s power in making the Orders pursuant to r 3.11 of the Rules, an order that the affidavits filed by Capital Options dated 17 October 2022 and 11 November 2022 be made available for inspection pursuant to s 596C(2) of the Corporations Act and/or r 11.3(7) of the Corporations Rules, and an order setting aside order 2(b) of the Orders pursuant to r 3.11 of the Rules, and further, or in the alternative, an order discharging the summons for examination pursuant to r 11.5 of the Corporations Rules.

6    In the event that the summonses are not discharged, both applications seek payment to each of the examinees of conduct money in the sum of $2,063.00.

Background

7    Capital Options, is a company which acquires debts and securities and enforces the same. As explained in his affidavit, Capital Options’ business involves it acquiring debts and securities and enforcing those debts and securities with Capital Options acting for itself where possible: Aff-CSB at [12].

8    On 16 March 2020, Capital Options acquired a debt from Dr Sugeet Baveja in the sum of $593,007.46 (alleged debt), which was described in the Deed of Assignment as being a debt that “is immediately due and payable” by Consortium to Dr Baveja: Aff-KH at [30], Exhibit p 47.

9    By proceedings commenced in the District Court of Queensland on 20 March 2020, Capital Options claims the sum of $593,007.46 as a debt due and owing by Consortium (District Court Proceedings). In its defence, Consortium denies that any debt due and owing by it to Dr Baveja is payable on demand. On 28 August 2020, Capital Options applied for summary judgment on that claim: Aff-KH at [23], Exhibit pp 53-68. By Order of Barlow DCJ on that date, the District Court Proceedings were stayed until notice was given that Capital Options was represented by a solicitor in those proceedings: Affidavit of Daniel John Morton dated 25 April 2023, which annexes the transcript of the hearing. No such notice has been given: Aff-KH at [23].

10    The issues for determination are threefold:

(1)    whether there is an arguable case of non-disclosure or abuse of process by Capital Options? And if so,

(a)    whether the examination summonses should be set aside?

(b)    does it establish a basis for access on the part of Mr Falconieri to the confidential s 596C affidavits and, if so, should access be granted?

Consortium, Private and Investments

11    Consortium was registered on 4 August 2015 for the purpose of being the corporate entity to investigate the feasibility of establishing and operating a private hospital or health facility in Townsville. Six directors were appointed – Drs Kaushik Hazratwala, Geoffrey Dance, Kiran Hazratwala, Peter McEwen, Matthew Wilkinson, and Sugeet Baveja: Aff-KH at [8]. Each provided loans of varying amounts to Consortium (Aff-KH at [14]), which would in turn fund the expenditure of Weststate Private Pty Ltd (Private), which was to be the start up trading entity: Aff-KH at [9]-[10].

12    Dr Kaushik Hazratwala deposes that the loans were provided on the basis that they would not attract interest and would only be repaid in the event that a subsidiary of Consortium became the operator of a private hospital and was thereafter able to make repayments: Aff-KH at [10].

13    Consortium held the only share in Private: Aff-KH at [29], Exhibit pp 88-108, the BDO Report. That share was transferred to Weststate Investments Pty Ltd on 1 July 2020 for the consideration of $1 (the transfer). A report dated 20 August 2020 conducted by Offermans Partners (Offermans Report) on the value of Private as at 30 June 2020 valued it at NIL.

14    The BDO Report also noted, at p 7, that as at 30 June 2020, Consortium was owed $2,324,794.60 by Private, being the approximate total of the amounts loaned to Consortium by the directors. On 1 July 2020, that debt was assigned to Investments for consideration of $9,999.00 (the assignment).

15    Private was never profitable and was placed into liquidation on 1 August 2021. Its affairs were administered and there were no realisable assets: Aff-KH at [26].

16    On 5 September 2020, Ms Moira Carter was appointed Administrator for Consortium: Affidavit of Moira Kathleen Carter dated 1 February 2023 (Aff-MKC) at [12]. On 6 October 2020, Consortium was put into liquidation and Ms Carter was appointed liquidator: Aff-MKC at [22]. She was subsequently removed and replaced on 2 December 2021 by David James Hambleton, who was in turn replaced by Todd William Kelly. Mr Kelly published a Statutory Report on 22 April 2022, the BDO Report. He observed that, having regard to the fact that Private had been placed into liquidation, together with there being no evidence that Investments was repaid any of the $2,324,794.60 by Private, “the amount of $9,999 [the assignment] represents a reasonable commercial outcome and compares favourably with the nil return to Investments”: BDO Report at p 7. The BDO Report concluded, inter alia, “there is no viable claim worth pursuing (e.g. in relation to director’s duties or pursuant to Part 5.7B of the Corporations Act 2001 (Cth) (Act) arising from the assignment of the debt”.

17    Mr Kelly also concurred with the findings of the Offermans Report (BDO Report at pp 5-6), and concluded, inter alia, “there is no viable claim worth pursuing (e.g. in relation to director’s duties or pursuant to Part 5.7B of the Corporations Act 2001 (Cth) (Act) arising from the transfer of the share”.

18    In respect of the transfer and the assignment, the BDO Report notes, at p 12:

I have not been able to identify any compensation or damages that would result from those transactions. In those circumstances, as to matters involving the transfer of the share and the assignment of the debt, I cannot indicate a general preparedness to enter into an assignment of a cause of action in circumstances where:

1.    The cause of action is not readily identifiable;

2.    The likely proceeds of any proceeding is, at best, uncertain; and

3.    Any assignment would have the effect of prolonging the litigation.

19    Further, the BDO Report recorded, at p 11, the terms of a letter from ASIC to Ms Carter, dated 16 December 2021, in which ASIC advised it had concluded its investigation of the conduct of the officers of Consortium and did not propose to investigate the matter further.

The alleged debt

20    In or around October 2015, Dr Baveja agreed to loan funds to Consortium. His contribution was $593,007.46: Aff-KH at [10] and [14].

21    On 27 January 2020, Dr Baveja resigned as a director of Consortium: Aff-KH at [14].

22    On 5 February 2020, Capital Options wrote to Consortium informing it they acted for Dr Baveja and had been instructed to make arrangements for the alleged debt to be discharged: Aff-KH at [16]. On 26 February 2020, Dr Bajeva issued a statutory demand to Consortium pursuant to s 459E(2)(e) of the Corporations Act for payment of the alleged debt: Aff-KH at [20], Exhibit p 42.

23    Subsequently, on 16 March 2020, Dr Baveja purported to assign the alleged debt to Capital Options (Aff-KH at [21]) and the District Court Proceedings were commenced four days later. Those proceedings are currently stayed.

Legislative Framework

24    The applicants in the interlocutory applications comprise both mandatory examinees, whose susceptibility to being summoned is governed by s 596A of the Corporations Act, and discretionary examinees, whose susceptibility is governed by s 596B.

25    Section 596A provides:

Mandatory examination

The Court is to 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 is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending:

    …

(iii)     if the corporation is being, or has been, wound up--when the winding up began; or…

26    The issue of a summons pursuant to s 596A is mandatory once the criteria contained therein are met. In other words, “the court has no discretion to decline to issue a summons if an application is made under s 596A and the criteria identified in paras (a) and (b) of the section are satisfied”: Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) [2022] HCA 3; 399 ALR 1 at [152] per Edelman and Steward JJ. As their Honours pointed out, however, this is “subject to the doctrine of abuse of process”. (Emphasis added.)

27    Section 596B provides:

Discretionary examination

(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.

28    The applicants’ essential grounds for seeking to have the summonses set aside are first, material non-disclosure, and secondly, the contention that the issue of the summonses was an abuse of the Court’s process. The applicants submitted that the circumstances as they have arisen in this case fall within the third category of the doctrine of abuse of process as described by Edelman and Steward JJ in Walton at [130] as

a category which might be described as concerned with the integrity of the court and not merely its processes, and which is sometimes described as concerned with bringing the administration of justice into disrepute.

Non-disclosure

29    The principles relevant to an ex parte application for an examination summons are well-settled. There is a “heavy obligation upon the person applying for the examination summons to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporations [sic] examinable affairs”: In the matter of Mendarma Pty Ltd (in liq) [2006] NSWSC 1306 at [45], cited with approval in Re Hunter Bulk Material (subject to a deed of company arrangement) [2011] NSWSC 467; 83 ACSR 436 at [51] per Ward J. The obligation has been variously described as, “no lesser than that imposed upon a party seeking an injunction ex parte” (Re Southern Equities Corporation Ltd (in liq); Bond v England (1997) 25 ACSR 394 at 422 per Lander J); requiring the party “to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application” (Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38] per Allsop J citing Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J), “ an absolute one, owed to the Court… materiality is to be decided by the Court, and not by the assessment of the plaintiff or his legal advisers” (Orpen v Tarantello [2009] VSC 143 at [27] per Beach J).

30    The consequence of obtaining an ex parte order in breach of the duty of disclosure is that it is liable to be discharged without any hearing on the merits. The necessity for such a consequence was explained by Fisher J in Town & Country Sports Resorts (Holdings) Pty Ltd & Ors v Partnership Pacific Ltd [1988] FCA 557; 20 FCR 540 at 543:

The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts.

31    In the present case, the interlocutory applicants contended that the Orders appeared to be irregular in that no order was made pursuant to r 1.34 of the Rules dispensing with compliance with r 4.01(2), which prohibits a corporation proceeding in the Court other than by a lawyer. In circumstances where Mr Bax appeared before the Registrar and evidently prepared the summonses issued to the applicants, this raised an arguable case that there had been a failure to inform the Court not merely that he had been struck off the roll of solicitors on 12 May 1998 (Attorney-General v Bax [1999] 2 Qd R 9) but also the reasons why he had been struck off, and the subsequent refusal by the Court of Appeal for his readmission in 2021: Bax v Legal Practitioners Admission Board [2021] QCA 93 (Bax QCA).

32    Secondly, it was submitted that the basis on which the Queensland Court of Appeal refused Mr Bax’s readmission raised an arguable case that the full and frank disclosure required of an ex parte applicant has not been made and that there was therefore a basis to permit the applicants’ lawyers access to the s 596C affidavits and the transcript of the hearing before the Registrar. As to the latter, no transcript is available.

33    The parties urged that, if I were satisfied that an arguable case of non-disclosure had been raised, then I should adopt the approach of Ward J in Re Hunter Bulk Materials at [44] and inspect the s 596C affidavits myself in order to determine the issue as to whether access should be given based on my review thereof. I formed the view that there was an arguable case of non-disclosure to which the content of the affidavits must logically be relevant. I therefore reviewed the affidavits in chambers. That review confirmed that disclosure had been less than adequate.

34    In the course of oral submissions by counsel for Capital Options, it transpired that the Registrar had in fact granted Mr Bax leave to appear on behalf of Capital Options. To the extent that it was submitted that the Orders were irregular because leave was not given, the submission must be rejected. That does not detract from the application brought under r 3.11 of the Rules for the Court to review the exercise by the Registrar of the power to issue the summonses.

35    In his affidavit, Mr Bax referred to the “unfettered discretion to dispense with the requirements of r 4.01(b)” but did not apparently refer the Registrar to the principles relevant to the exercise of the discretion. Nor did Mr Bax’s affidavit disclose that he was the sole shareholder and director of Capital Options, only that he was “a” director.

36    Mr Bax did disclose that he was struck off the roll. He did not, however, disclose that his application for re-admission in 2020 was dismissed by the Court of Appeal in 2021, nor the Court of Appeal’s very dim view of his conduct as described by Holmes CJ (Mullins JA and Crow J concurring) in Bax QCA at [71]:

Nor do I consider that the public interest and the interests of the profession would appropriately be safeguarded were the applicant to be readmitted, whatever conditions might be applied. Indeed, it seems to me that if the public were made aware that an applicant were readmitted in circumstances where he had displayed an indifference to requirements of the Corporations Act and some of his obligations as a tax agent; had not only failed to follow proper procedure in the collection of evidence, but apparently had been oblivious to the need to do so; had generally behaved in an unforthcoming way in his dealing with a regulatory authority; and had been unable to grasp what it was that was required of him, notwithstanding the clear statement of the Court in his presence; their confidence would in fact be eroded.

37    Further, over three paragraphs of his affidavit, Mr Bax represented that he had appeared, with leave, for Capital Options in many previous matters including in the Federal Circuit Court of Australia, and the Supreme Court of Queensland, and for other corporations of which he was a director at the relevant time in the Magistrates Court of Queensland, the Local Court of New South Wales, the District Court of Queensland and the Queensland Civil and Administrative Tribunal. He did not disclose the dates of those appearances. Most significantly, he did not disclose that he had been refused leave in 2020 to appear in the District Court Proceedings.

38    Moreover, Mr Bax deposed that he “knew how to conduct” himself in Court: Aff-CSB at [16]. He did not disclose the following passages of the Court of Appeal’s judgment [68]-[69]:

Another matter of concern is the applicant’s apparent inattention to the Court’s intimation on the first hearing date as to the need for evidence showing that he believed himself a director. That was the very basis on which an adjournment was granted. It is difficult to understand how somebody who sought to practise in law could manage not to take any note, literally or figuratively, of what the Court had indicated was required (nor apparently, make any enquiry of his solicitors, if he were unable to hear what was said), before setting about the preparation of material for the resumed hearing.

As to the preparation of that material, one of the most perturbing features of this case is the applicant’s willingness to prepare affidavits for other witnesses by cutting and pasting from his own. It was not merely a matter of infelicitous language. It did, contrary to submission, bear on the credibility of the evidence … If the applicant were, for example, an inexperienced first-time applicant for admission, this disregard for the need to ensure that witnesses gave their versions independently might be forgivable. But the applicant had practised as a lawyer at the level of partner and indeed had continued to litigate over recent years.

39    The statement in his affidavit that, “No disadvantage was suggested to either the Plaintiff or any Defendant by the grant of leave to me to represent the Plaintiff” (Aff-CSB at [24]), is evidence of his continuing failure to grasp the proper conduct of proceedings, particularly in the context of an ex parte application.

40    The principles relating to the exercise of the Court’s discretion to permit a company to commence and carry on proceedings other than by a solicitor were discussed at some length by the Full Court in Molnar Engineering Pty Ltd v Burns, E.J [1984] FCA 201; 3 FCR 68. As was said by Smithers J at 75:

it has been regarded as appropriate that when a trader decides to use the corporate form in which to carry on his business for the advantages flowing thereform his accessibility to the courts as plaintiff and his appearance as a defendant should be made conditional as set forth in [r 4.01(2)].

41    Relevant factors for the Court to consider include: the consequence of depriving the Court of assistance on matters of law; the possibility it might render difficult the proper assessment of fact; whether the company has insufficient funds to engage legal assistance; the class and financial structure of the company; the identity of the shareholders; and the spread of shareholding.

42    In exercising the discretion to permit Capital Options to proceed with its application other than by a solicitor, and in granting Mr Bax leave to appear for Capital Options, the Registrar was not made aware of several of the various matters in relation to Mr Bax outlined above, from which it could reasonably be concluded that Mr Bax was not a proper person to conduct the proceedings on behalf of Capital Options: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878 at [34] per Collier J. The failure of Capital Options, through Mr Bax, to disclose those matters is sufficient to discharge the Orders.

43    There were, however, other undisclosed matters going beyond the issue of leave to appear and which touch upon whether the summonses ought to have issued at all.

44    In respect of both the mandatory examinees and the discretionary examinees, there was no dispute that Capital Options was authorised by ASIC as an “eligible applicant” for the purposes of Div 1 of Part 5.9 of the Corporations Act in relation to Consortium. I interpolate that the mandatory examinees and Mr Kippin filed an application for judicial review of ASIC’s authorisation decision on 24 April 2023. (It was agreed that application should await the outcome of these applications.) There was also no dispute that the mandatory examinees were officers of Consortium during or after the 2 years ending when the winding up began.

45    As to the discretionary examinees, it was submitted for Mr Kippin that there was no justification or practical utility to issue an examination summons directed at him given his role as an advisor to the Board of Directors. It is submitted that it appears the purpose of the summons directed to Mr Kippin is to obtain information about the transfer and the assignment.

46    On behalf of Mr Falconieri, who was the solicitor with the conduct of Consortium’s defence in the District Court Proceedings, it was submitted similarly that the proposed examination is neither sufficiently justified, nor would it have any practical utility, in the sense explained by the Full Court in Kimberley Diamonds Ltd v Arnautoviuc [2017] FCAFC 91; 252 FCR 244 at [24]. Similarly to Mr Kippin, it appears the purpose of the summons directed to Mr Falconieri is to obtain information about the transfer and the assignment.

47    Relevant to the Court’s review of the exercise by the Registrar of the power to issue summonses to the discretionary examinees, the following matters were not disclosed on the ex parte application:

(1)    the nature or existence of the District Court Proceedings;

(2)    the BDO Report.

48    The failure of Capital Options, through Mr Bax, to disclose those matters is sufficient to discharge the summonses directed to Messrs Kippin and Falconieri.

49    Further, non-disclosure of the nature and existence of the District Court Proceedings and the BDO Report taints the summonses directed to both the mandatory examinees and the discretionary examinees. That is because perusal of that material would have revealed to the Registrar that the predominant purpose of the examinations sought under both s 596A and s 596B was collateral to the external administration.

Abuse of process

50    As Kiefel CJ and Keane J explained in Walton at [19]:

There can be no doubt that if the predominant purpose of the examination for which an application is made under s 596A, or s 596B, is collateral or foreign to the statutory purpose of such an examination, the application will amount to an abuse of process… Two purposes must therefore be considered: first, the statutory purpose, and then the applicant’s purpose in light of the statute’s purpose.

51    It is unnecessary to recount Kiefel CJ and Keane J’s exposition of the historical context and purpose of the provisions that are now enacted as s 596A and 596B: Walton at [34]-[86]. That exposition is, however, critical to understanding the statutory purpose of the public examination and whether that purpose places limits upon when a summons may properly issue, given, as their Honours observed, “The text of s 596A does not provide mush assistance in determining the statutory purpose …”: Walton at [26].

52    In identifying the extraordinary nature of the powers of examination, as they were described by Chitty J in Re Imperial Continental Water Corp (1886) 33 Ch D 314, their Honours observed that “the general powers have always been framed largely by reference to [the] administration and never by reference to litigation by individuals for their benefit”: Walton at [77]-[78]. Their Honours continued, at [83]-[84]:

So far as concerns the conduct of the examination, Pt 5.9 provides that its subject is the “examinable affairs” of the company, as defined. Both the Harmer Report and the Explanatory Memorandum explain that it was considered desirable to adopt the wider definition of “examinable affairs” in s 5(1) of the Bankruptcy Act 1966 (Cth). No wider purpose…can be discerned by that adoption.

The decided cases have consistently identified the purposes of the examination power. In no way do they depart from those identified In re Imperial Continental Water Corporation. The decision in [Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512] confirms that decision’s currency in recent time. Whilst the Harmer Report acknowledged that they may include the investigation of possible causes of action, this was as part of the general recovery of property, which, in the context of insolvency, is for the benefit of the company’s creditors or contributories. The decided cases referred to above, and in particular Hong Kong Bank and [Re Excel Finance Corporation Ltd (rec and mgr apptd); Worthley v England (1994) 52 FCR 69], have consistently held an order for an examination summons for some other, foreign purpose to be an abuse of the power and process of the court. The decision In re Imperial Continental Water Corporation has never been doubted, consistently with an acceptance that the law on this subject has been settled.

53    In the present case, particularly having regard to the pleadings in the District Court Proceedings (instituted more than three years ago), which make a simple claim in debt, and the content of the BDO Report, which concludes there are no viable claims in respect of either the transfer or the assignment, that no dividend is likely to be declared, and that ASIC has concluded its investigations into the officers of Consortium and is not investigating further, it appears that the predominant purpose of the examination is for Capital Options to gain a forensic advantage not otherwise available to it in ordinary pre-trial processes in the District Court of Queensland. This purpose is being pursued exclusively for the benefit of Capital Options and not to confer a benefit on Consortium or its creditors of contributories considered as a whole. Section 596A does not authorise an examination to facilitate the investigation or prosecution of a claim that has nothing to do with the external administration of Consortium: Walton at [87].

54    For these reasons, I am not satisfied that the examination summonses issued either to the mandatory examinees or to the discretionary examinees were issued for a proper purpose. They must be discharged.

Disposition

55    Orders 1 to 5 of the Orders must be set aside.

56    There should be an order that the summonses for public examination issued to Dr Kaushik Hazratwala, Dr Kiran Hazratwala, Dr Peter McEwan, Mr David Kippin, and Mr Michele Falconieri be discharged.

57    To the extent that it is necessary to extend the time for the making of Mr Falconieri’s application beyond the 21 day time limit prescribed by r 3.11 of the Rules, time is extended to 30 January 2023 pursuant to r 1.39 of the Rules.

58    Given the approach that I took to the confidential affidavits, it is unnecessary for any order to be made permitting their inspection by the applicants or their legal advisors.

59    It is also unnecessary to deal with the question of the appropriate quantum of conduct money.

60    Capital Options should pay the costs of Dr Kaushik Hazratwala, Dr Kiran Hazratwala, Dr Peter McEwan, Mr David Kippin, and Mr Michele Falconieri.

61    The matter should otherwise be dismissed.

Associate:

Dated:    15 May 2023