In the matter of Asheville Pacific Pty Limited

HIS HONOUR: Para 3 of the interlocutory process seeks an order – said to be pursuant to (NSW) Civil Procedure Act 2005, s 97, but for an examination summons under the (CTH) Corporations Act 2001, the appropriate head of power is (NSW) Supreme Court (Corporations) Rules 1999, r 11.10 – for the issue of a warrant for the arrest of Jeffrey Keith Marriott for disobedience of an order to attend court for examination under Corporations Act, s 597B.

Obviously, the first step on such an application requires establishing that the examinee has been summoned to attend for examination. That involves proving service of the examination summons on the examinee. Supreme Court (Corporations) Rules, r 11.4, provides:

While substituted service may be ordered if personal service is impractical, no direction of the kind referred to in r 11.4 has, to this point, been made.

(NSW) Uniform Civil Procedure Rules 2005, r 10.21 describes how personal service is effected, namely by:

The evidence of the licensed process server Stephen Goodwin, in an affidavit sworn on 25 January 2016, is that he attended the premises Unit 19, 4-6 Ethel Road, Kirrawee – which, according to other evidence, is the principal place of business of a company of which Jeffrey Keith Marriott is an officer – and said to a male person, “I am looking for Jeffrey Keith Marriott.” That person pointed to a man driving a forklift, and said, “That is him driving the forklift.” Mr Goodwin approached the forklift driver, and said, “Are you Jeffrey Keith Marriott, the person referred to in these documents?" The forklift driver answered, “No”. Mr Goodwin said, “I have been told by the other employee that you are Jeffrey Keith Marriott. I have a letter and summons for examination for you”. The forklift driver drove away before Mr Goodwin could hand him the documents, and he left the documents in the letterbox.

That evidence does not establish that the document was left with Jeffrey Keith Marriott. First, the evidence identifying the person said to be Jeffrey Keith Marriott is hearsay of an unknown person. Even if evidence on information and belief were admissible for this purpose, it would be necessary to identify the source of the information beyond "an unnamed male person present at the site”.

Secondly, even though the process server described the nature of the document as a summons for examination, it cannot be said that he left it in the presence of the forklift driver, who drove away before he could be handed the documents. Placing the documents in the letterbox does not amount to leaving them in his presence.

In those circumstances, I do not think I can be satisfied that Jeffrey Keith Marriott has been summoned to attend for examination – the first of the three matters that must be established on an application under r 11.10. [1] Accordingly, I decline to make the order sought in paragraph 3 of the interlocutory process. I refer the balance of the interlocutory process to the Registrar.