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JN Taylor Finance Pty Ltd, Re Also known as: England v Purves Chancery Division Case Analysis [1999] B.C.C. 197; [1999] 2 B.C.L.C. 256; [1998] B.P.I.R. 347; Times, January 29, 1998 Subject: Insolvency Keywords: Examinations; Liquidators; Witnesses Summary: corporate insolvency; liquidators; examination of witnesses alleged to be involved in fraud; letters of request from Australian court Abstract: JNTF and F, both in liquidation in Australia, brought proceedings against HSBC and HKBA there alleging, inter alia, that they had knowingly assisted F's directors in a dishonest breach of trust in respect of an indemnity agreement and ship mortgage entered into by F and that they were therefore liable as constructive trustees. In the course of those proceedings, JNTF and F's liquidator, E, obtained orders from the Australian court for oral examination of P, S and M, senior officers of HSBC said to be closely concerned in the relevant transactions. Pursuant to those orders, the Australian court submitted letters of request to the English court under the Insolvency Act 1986 s.426 and E applied to the English court for examination of P, S and M, who were resident in England. Held, refusing the applications, that the English court would comply with a letter of request issued pursuant to s.426 provided that there was not some compelling reason to do otherwise. Public policy was not the only reason why assistance might not be offered and the court had a discretion as to what form the assistance might take. An order for examination of a witness could be made either under the 1986 Act s.236 or under the Australian Corporations Law s.596B and, while the powers conferred on the court under each statute appeared to be similar, there was a substantial difference in the way those powers were exercised by the English and Australian courts http://www.ukassignment.org . While the English courts would generally refuse to order an examination in respect of a witness against whom the liquidator had commenced proceedings, that was not considered a ground for refusing an examination in Australia. In the circumstances, given that an application under s.236 would almost certainly have been refused as oppressive in the light of the allegations made against P, S and M, the applications and request for assistance would be refused. Judge: Evans-Lombe, J. Counsel: For the liquidator: Richard Sheldon Q.C., Tom Gray Q.C. and Lloyd Tamlyn. For the respondents: Robin Dicker Solicitor: For the liquidator: Withers. For the respondents: Clifford Chance International insolvency assistance Public policy and international co-operation between courts exercising insolvency jurisdiction: s.426 Insolvency Act 1986 Applications for assistance under s.426 of the Insolvency Act 1986 Australian liquidator could not obtain order for examination Applications against banks under section 236 of the Insolvency Act 1986 |
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