England v Purves and Others
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1998 |
| Date | 21 January 1998 |
| Court | Chancery Division |
Chancery Division
Before Mr Justice Evans-Lombe
Insolvency - inter-jurisdictional co-operation - request to order examination of witnesses refused
The provisions of section 596B of the Australian Corporations Law 1992 and section 236 of the Insolvency Act 1986 conferred an absolute discretion on the court whether or not to order an oral examination of witnesses and although the powers which were granted did not appear to differ materially in effect there was a sharp divergence in the practice of the English and Australian courts in the exercise of the discretion.
Whereas the Australian courts had decided that it was immaterial whether the application for examination orders was made before or after the liquidator had instituted proceedings, the English courts were disinclined to order an examination under section 236, at least, where proceedings had been commenced and pursued against a proposed examinee or third party with which he was connected, in which proceedings he was likely to be a witness.
Accordingly, it was difficult to accept that an examinee, resident in England, could be ordered pursuant to section 426 of the 1986 Act to answer questions put by a foreign liquidator in an examination held in England in circumstances where had the liquidator been English he could not have been compelled to answer them.
Mr Justice Evans-Lombe so held in a reserved judgment in the Chancery Division when refusing applications by Mr Richard England, liquidator of JN Taylor Finance Pty Ltd ("JNTF") and Fenbury Ltd seeking orders, inter alia, for examinations of, inter alia, the first to third respondents, respectively, Sir William Purves, Mr Paul Selway-Swift and Mr Michael McIntyre.
The applications were made pursuant to letters of request from the Supreme Court of South Australia under section 426 of the 1986 Act. The first to third respondents were senior officers of the eighth respondent, the Hong Kong and Shanghai Banking Corporation Ltd ("HSBC") incorporated in Hong Kong, and were now resident in England but at the times material to the application were working in Hong Kong.
The first respondent was the chairman of HSBC. JNTF and Fenbury were members of a group of companies now all in liquidation in Australia.
Mr Richard Sheldon, QC, Mr Tom Gray QC, of the Australian Bar, and Mr Lloyd Tamlyn for the applicant liquidator; Mr Robin Dicker for the respondents.
MR JUSTICE EVANS-LOMBE said...
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