2014
Sage Solicitors Tips for Directors and Officers
Charly Tannous / 0 Comments /No 1 – What should you do if you receive an Examination Summons from a Liquidator?
The Liquidators position:
Liquidators are appointed to determine the reasons why a company became insolvent. They investigate the company’s trading history and consider the company’s records and other records to determine if assets can be recovered or legal action can be taken for the benefit of creditors.
If the investigations are hindered or they reveal unusual or unexplained transactions of value or breaches of the Law they have several forensic tools to assist them.
Public Examinations are an important tool that is available to Liquidators to assist them with their investigations.
Liquidators can apply to the Supreme Court to have you examined as a Director under section 596A of the Corporations Act and to force you to produce documents to assist in an Examination.
The Examination Summons:
The Summons is a Court Order which must be complied with. Severe penalties result from non-compliance. It specifies a time and place for you to attend Court for you to be examined by the Liquidators’ legal representatives before a Registrar. The only limit on the power to examine is that it is confined to the “Examinable Affairs” of the Company which is wide and includes all conceivable matters connected with the Company.
The Order for Production:
The Order for Production is also a court order requiring you to produce to the Court before the Examination documents in defined categories relevant to the “Examinable Affairs” of the company. The date for production of the documents is usually 4-5 weeks before the Examination takes place.
The Examination:
The Examination takes place before a Registrar of the Court who will ensure the process is fair. You must answer the questions and your answers are recorded. Your answers can be used against you except in certain circumstances.
How Sage Solicitors can help you:
We can represent you throughout the Examination process as follows:
- Obtaining a stay of the Examination in circumstances where it would be considered an abuse of process;
- Seeking to adjourn the Examination on medical grounds or for another legitimate purpose;
- Making arrangements with the Liquidator’s solicitors as to the most convenient time for you to attend the Examination;
- Seeking to ensure that the Liquidators’ agree to cover your reasonable expenses by consent and if not to advise you as to what expenses are recoverable and assist you to make the application;
- seeking the agreement of the Liquidators prior to the Examination as to the topics for questioning and in some cases reaching agreement as to the actual questions;
- Seeking to limit the scope of an Order for Production by agreement and if necessary to make application to strike out parts of the Order; and
- Providing actual representation throughout the course of the Examination to ensure that the questioning remains fair and the questions relate to the company’s affairs and not to other matters.
If you have been served with an Examination Summons or an Order for Production and you require advice on your rights and obligations, please call Charly Tannous or Andrew Rollins at Sage Solicitors to obtain their professional advice.
