Case: Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301
Outcome: applied
It is plain that the examinable affairs of a company (as defined in s 53 of the Act) may include information as to the capacity of a person who is or may be liable to the company in the event of successful proceedings against that person: see Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301 at 311-312; Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1993) 61 SASR 557; Re BPTC Ltd (In Liq) (1994) 14 ACSR 460. A liquidator may seek to be in a position to determine, in a commercial sense as well as a legal sense, how the liquidator is best able to discharge duties to the company in liquidation. 24 I do not accept that the November Order could not, in the exercise of the Court's discretion under s 596D, require the production of documents relating to Mr Viscariello's capacity to meet any judgment. The authorities are plain that that topic falls within the examinable affairs of a corporation. In Grosvenor 48 FCR, the Full Court (Beaumont, Spender and Cooper JJ) at 311 distinguished between the power of the Court to have made such an order on the one hand, and the control of the examining officer in the course of an examination on the other. Consequently, I do not accept the contention that seeking information about Mr Viscariello's capacity to meet any judgment, even at an early stage of the investigation process, was necessarily inappropriate or that the Court did not have power to order production of documents for that purpose. However, I do not regard the scope of the documents required to be produced by the summons as limited to seeking practical information as to the actual worth of any claim that might be made against Mr Viscariello. 25 The width of pars 2-4 of the schedule to the summons is self-evident. They are in the following terms: "2. All documents, which are in your possession or control, including but not limited to letters, memoranda, notes, invoices, statements or schedules, whether in electronic or hardcopy format, relating to or otherwise concerning your personal financial position from December 2001 to the present, including but not limited to: 2.1 taxation returns; 2.2 contracts of employment; 2.3 share certificates; 2.4 bank account statements; 2.5 title deeds; 2.6 mortgages; 2.7 certificates of registration; and 2.8 superannuation returns of you personally, any trust of which you are a beneficiary, trustee or settlor, or of any private company of which you are a shareholder or member. 3. For the purpose of paragraph 2 above, 'personal financial position' includes, but is not limited to, details of: 3.1 income received; 3.2 legal or equitable interests in chattels, including motor vehicles, boats, furniture, jewellery, whitegoods and the like; 3.3 legal or equitable interests in real property; 3.4 cash in bank accounts; 3.5 investment portfolios (including but not limited to share portfolios, managed investment funds, property trusts) in which any interest is held whatsoever; 3.6 liabilities or debts, including but not limited to credit cards, mortgages and loan facilities, including any such facility relating to either real property or chattels. 4. All documents which are in your possession or control, including but not limited to letters, memoranda, notes, invoices or schedules, whether in electronic or hardcopy format, relating to all transfers of any interests in real property or chattels, whether legal or equitable, taking place in the period from December 2001 to the present." 26 Counsel for Mr Lock first sought to justify those paragraphs of the schedule in their terms, but subsequently on instructions proposed that they be somewhat varied so that pars 2.2-2.7 be struck out, and that the documents to be produced be confined to those "referring to or relating to assets or transactions with a value of at least $5000". It was also proposed that par 4 be varied, but not in a way which, in my view, limited its scope. It was proposed to remove the words "whether legal or equitable' and substitute the words "any trust of which [Mr Viscariello] is a beneficiary, trustee or settlor, or of any private company of which [Mr Viscariello] is a shareholder or member."