In the matter of FSM Development Pty Ltd (in liq)

Each of Ray White Capital Pty Ltd (“RWC”) and several of its employees (“RW Employees”); Keyview Investment Management Pty Ltd (“Keyview”) and several of its employees (“Keyview Employees”); and Mr Guo sought orders setting aside examination orders and orders for production made by the Court on the application of Stingray Management Pty Ltd (“Stingray”). The position as to orders for production was resolved in the course of the hearing before me on 25 August 2025 and I stayed, but did not set aside, the examinations of the RW Employees, the Keyview Employees, and Mr Guo, with liberty to resume them when further steps had been taken by Stingray to manage the risk of duplications between these examinations and ongoing examinations conducted by the liquidators (“Liquidators”) appointed to FSM Development Pty Ltd (“FSM”) concerning the same transactions in the Federal Court of Australia (“FCA”). These are my reasons for taking that course.

By Interlocutory Process filed on 1 August 2025, the RW Employees and RWC sought orders setting aside a Summons for Examination issued under s 596B of the Corporations Act 2001 (Cth) (“Act”) addressed to the RW Employees and setting aside orders for production also addressed to RWC and the RW Employees and setting aside an order for production issued to RWC.

Some aspects of the application were narrowed in submissions, because the applicant for the examinations, Stingray, did not press for production of documents by RWC, where it has had access to documents produced in the Liquidators’ examinations in the FCA; Stingray accepted that orders for production directed to the RW Employees should be limited to documents not already produced by their employer; and, on that basis, the RW Employees had no further documents to produce. Mr Thomas, with whom Mr Michael appeared for the RW Employees and RWC, sought to expand the scope of the application in one respect, to raise an additional issue that I address below. It is ultimately possible and appropriate to determine the issues in this application on a narrow basis, and I only reach findings as to matters necessary to that narrow determination.

By way of background, a third party lender had made a loan to FSM secured by a property at Ashfield. FSM and guarantor companies under that loan were owned by Mr Guo, who also brings an application which I will address below. Subsequently, another company associated with Mr Guo entered a loan facility with Zagga Investments Pty Ltd (“Zagga”) in respect of a property at Lindfield, secured by a second ranking mortgage over the Ashfield property. On 7 September 2023, the first lender and Zagga entered into a deed of priority, which was subsequently amended in May 2024.

On 7 August 2024, a trust managed by RWC acquired the first of those loans by assignment from the first of the lenders and the loan facility was also amended in a manner that is now challenged by FSM, the Liquidators and Stingray. At the time, that facility was amended by a Deed of Amendment and Restatement to increase the interest rate from 7.79% to 32.4% per annum, specify a minimum interest payable of $11.99 million and provide for an establishment fee of $1.22 million inclusive of GST. On 20 August 2024, under a Substitution Agreement, the trusts associated with RWC sold down over 50% of the loan to FSM to a trust which was a nominee of Keyview. Stingray also seeks to examine representatives of Keyview and Keyview also brings an application to set aside those examinations which I address below.

Zagga subsequently contended that the first lender’s securities under the deed of priority did not extend to FSM’s increased indebtedness arising under the amended facility and commenced proceedings in this Court in respect of that dispute. Zagga subsequently paid out the first mortgage, assigned its debt to Stingray and discontinued those proceedings; and Stingray then appointed voluntary administrators to FSM who have now become the Liquidators.

On 24 December 2024, the Liquidators commenced proceedings in the FCA seeking orders that various persons attend for examination, including the RW Employees. RWC has also produced documents and mobile phone messages in response to orders for production in the FCA, although it appears that a large number of documents have been withheld or redacted for legal professional privilege, some other documents are the subject of claims for commercial confidentiality and there are existing or anticipated disputes as to those matters in the FCA. On 2 July 2025, after examination orders and orders for production were made in the FCA, Stingray served orders for production by this Court on RWC, in substantially the same terms as the orders for production issued at the Liquidators’ request by the FCA. On 29 July 2025, Stingray served the RW Employees with summonses and orders for production.

The RW Employees and RWC then filed this application promptly, on 1 August 2025. Subsequently, Stingray raised a proposal to transfer the examinations to the FCA under s 1337H of the Act, but did not proceed with that proposal, where it appears that doubts had arisen as to whether this Court had power to make such an order, to which I refer below. At some time after 15 August 2025, the FCA made orders by consent allowing Stingray access to documents produced by RWC in the Liquidators’ examinations in the FCA, other than documents over which RWC has claimed confidentiality or legal professional privilege.

Turning now to the affidavit evidence, the RW Employees and RWC relied on an affidavit dated 1 August 2025 of their solicitor, Ms Tatasciore and a voluminous exhibit to that affidavit. Ms Tatasciore there addresses the relationship between the parties and the subsequent appointment of administrators to FSM by Stingray, who, as I noted above, later became the Liquidators. Ms Tatasciore also refers to Stingray’s entry into a funding agreement with the voluntary administrators and a subsequent funding agreement with the Liquidators and to the Liquidators’ commencement of liquidator’s examinations in the FCA in which orders for production were issued to RWC and orders for examination were issued to the RW Employees. Ms Tatasciore refers to disputes in the FCA concerning the scope of the orders for production and confidentiality claims made by RWC and to documents which had been produced in response to the orders for production in the FCA and the then pending examinations of the RW Employees in the FCA. Ms Tatasciore also refers to the subsequent issue, on Stingray’s application, of an order for production addressed to RWC in this Court and to the summonses for examination and orders for production issued to the RW Employees in this Court.

By a second affidavit dated 21 August 2025, Ms Tatasciore responds to the affidavit dated 14 August 2025 of Mr Greenstein, on which Stingray relies to resist the applications brought by the RW Employees and RWC. She refers to subsequent correspondence between the parties, to a successful application by Stingray for access to documents produced in the FCA, and to developments in respect of the examinations in the FCA including examinations of the RW Employees that took place in early August 2025. Ms Tatasciore also refers to other aspects of Mr Greenstein’s evidence which it is not necessary for me to address.

Stingray in turn reads the affidavit dated 14 August 2025 of Mr Greenstein in response to the application by RW Employees and RWC and by other applicants. Mr Greenstein also refers to the financing arrangements involving FSM and Mr Guo and to the examinations conducted and documents required for production on the application of the Liquidators in the FCA. Mr Greenstein acknowledges that Stingray has similarly sought to issue summons for examination and orders for production to the majority of the same entities and persons in this Court, dealing with similar issues tom those addressed in the Liquidators’ examinations in the FCA. Mr Greenstein’s evidence (Greenstein 14.8.25 [40]) is that:

Mr Greenstein denies any suggestion that Stingray commenced the further examinations with any intention to prejudice RWC or Keyview. Mr Greenstein also refers to the availability of dates for examinations in this Court and the limited availability of dates for examination in the FCA and notes his concern that delay in seeking examinations in that Court would be contrary to Stingray’s interests. Mr Greenstein also responded to other matters raised in Ms Tatasciore’s first affidavit and Mr Forrest’s affidavit which it is not necessary for me to address.

Mr Thomas submits, and I accept, that the Court has power to set aside or vary an order made by a Registrar, including for an examination, under s 121(3) of the Supreme Court Act 1970 (NSW) or under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Mr Thomas also submits, and I accept, that, although an examination summons is issued for a proper purpose, it may be set aside if it is unjustifiably oppressive: Re LED (South Coast) Pty Ltd (2009) 76 NSWLR 428 at 430; [2009] NSWSC 946.

I also have regard to the purpose and scope of liquidators’ examinations, and the circumstances in which they may be at aside, as summarised in Re New Tel Ltd (in liq); Evans v Wainter Pty Ltd (2005) 145 FCR 176; (2005) 54 ACSR 284; [2005] FCAFC 114 (“New Tel”), although I bear in mind that the scope of a proper purpose of an examination has likely been expanded by the High Court’s decision in Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) (2022) 275 CLR 508; (2022) 158 ACSR 391; [2022] HCA 3 (“Arrium”) to which I refer below. In New Tel at [252], Lander J (Ryan and Crennan JJ concurring) observed that:

Mr Thomas also rightly draws attention to the possibility that duplicative examinations may give rise to abuse of process, which I had noted at first instance in Re ACN 004 410 833 Ltd (formerly Arrium) (subject to a Deed of Company Arrangement) [2019] NSWSC 1606 at [51] as follows:

When that matter reached the High Court on appeal in Arrium, Gageler J also observed (at [92]–[93] and [125]–[126]) that:

Edelman and Steward JJ also there observed (at [130], [169]–[170] and [175]) that:

I also bear in mind that, in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 (at [1], [59]), the plurality observed that:

Mr Thomas refers to Stingray’s acquisition of the loan and securities assigned to it by Zagga as a second-ranking lender to FSM, refers to the conduct of the Liquidators’ examinations in the FCA and points out that Stingray has been funding, and Stingray’s solicitors have been attending, those examinations. Mr Thomas also provides a detailed outline of the background facts, to which I have referred above.

Mr Thomas submits that the duplication of examination proceedings in different jurisdictions is oppressive to the RW Employees and will expose them to the prospect of examinations that duplicate those conducted in the FCA and require additional costs and additional time and Court resources. Mr Thomas also points out that Stingray did not apply to participate in the Liquidators’ examinations in the FCA and has not sought to transfer the examinations in this Court to the FCA. He submits that:

Mr Thomas also submits that the risk of duplication is exacerbated by the fact that the Liquidators have indicated that they will be recalling examinees at a future time in the FCA, with the risk that the RW Employees will therefore be examined in the FCA, then in this Court, then again in the FCA. Mr Thomas accepts that, in the ordinary course, the risk of duplicative questions could be addressed by the Court’s supervision of the conduct of the examination. He submits that that is more difficult where the examinations are in two different Courts. I do not accept that submission, but I do accept that a Registrar, even in the same Court, would face difficulties in addressing issues of duplication, where a second examination or a third examination is conducted sometime after an earlier examination. Mr Thomas also points to practical difficulties arising from different examination bundles, although it seems to me that those could be readily addressed to identify overlapping documents by a process of comparison. Mr Thomas also submits that Stingray’s examination proceedings carry the risks associated with multiplicity of proceedings generally. Mr Thomas submits that the examinations should be set aside for that reason.

Mr Cook, with whom Mr Nolan appears for Stingray, accepts that:

Mr Cook responds, and I accept, that that is legitimate where the investigation of the same matters is necessary in order to advance potentially different claims; but that is not an answer to the need to manage the risk duplication in order to avoid oppression.

Mr Cook also relies on the observations of Brereton J in Re Mustang Marine Australia Services Pty Ltd (2014) 292 FLR 228; [2014] NSWSC 136 at [47], where his Honour observed, in a somewhat different context, that:

I do not disagree with that observation. However, in the context of a potential substantial overlap between the questions asked at the Liquidators’ examination in the FCA and Stingray’s examinations in this Court, it seems to me that more is required to manage the risk of overlaps, so as to avoid oppression, than for Stingray’s Counsel to say that he will seek to avoid overlap or that a Registrar will be able to avoid overlap, to the extent that it is apparent to the Registrar where he or she did not preside over the examinations in the other Court. That matter can and should be addressed, in a more structured and transparent way, by Stingray identifying those matters as to which it needs to examine, having regard to the information that is already available to it from the Liquidators’ examinations and production of documents in the FCA. Mr Cook also submits that, in any event, having now obtained transcripts of examinations in the FCA, Stingray now considers it would not be efficient to proceed with examinations of the RW Employees or the Keyview Employees, or possibly Mr Guo, in the days presently allocated for examinations in this Court commencing in early September, with a qualification referable to the production of further documents does not now arise.

I do not accept the wider version of the RW Employees’ and RWC’s submission. It is common ground that Stingray has standing to seek the examination orders and it is plain that its potential claims are different to the claims that are available to the Liquidators and that it has separate interests to pursue in respect of those claims. In principle, it is no more an abuse of process and no more oppressive for Stingray to conduct separate examinations to the Liquidators’ examinations, than it would be for Stingray to conduct separate proceedings to any proceedings which may subsequently be taken by the Liquidators, whether in the same Court or in a different Court. I do not accept that, as a practical matter, it is more difficult for a Registrar of this Court to monitor the question of duplication between examinations than it would be for a Registrar of the FCA to do so.

Having said that, it seems to me that there is here a real practical connection between the two sets of examinations, where Stingray was funding the Liquidators’ examinations in the FCA and its solicitors were present and observing those examinations, and where Stingray knew of the FCA examinations and the scope of the document production sought in those examinations. At least in those circumstances, it was at least oppressive for Stingray to conduct examinations in this Court (or likely in the FCA) without taking active steps to avoid unnecessary duplication between the Liquidators’ examinations and document production in them and its examinations are requests for document production, where that would expose the examinees and the community to the wasted time and costs of conducting duplicative examinations.

Stingray has now, albeit belatedly, taken those steps to avoid duplication in respect of document production. It could have taken steps to avoid or minimise duplication in respect of the examinations of the RW Employees. First, as the RW Employees and RWC point out, it could have sought to conduct its examinations of the RW Employees in the FCA at the same time as the Liquidators’ examinations, which would have allowed a Registrar of the FCA readily to address the risk of duplication between the two examinations of a single examinee. I accept that it was not inevitable that the FCA would permit that course, but here Stingray did not seek to adopt that course. Second, and alternatively, it would have been possible for Stingray to access the transcripts of examinations in the FCA, as it has now done, and identify those matters which were not covered or in its view were not adequately covered, in the Liquidators’ examinations in the FCA, and identify matters for examination which fell within that more limited category so as to minimise the risk of duplication. It has not taken that course, in any structured way, and instead contends that its Counsel will seek to avoid duplication of questions at the examination in this Court without any transparency as to the areas that he will or will not examine about.

It seems to me that the absence of structured steps taken by Stingray to reduce the extent of duplication between the Liquidators’ examinations in the FCA and Stingray’s examination in this Court is a sufficient basis to stay the examinations of the RW Employees, unless and until Stingray completes its review of transcripts in the FCA and identifies the matters as to which it can properly proceed with an examination in this Court, without duplicating matters that have already been addressed in the Liquidators’ examinations in the FCA to which it has had access.

For these reasons, I stayed the examinations of the RW Employees reserving liberty for Stingray to apply for leave to undertake those examinations, once it has taken the course of identifying matters which can properly be addressed without duplication.

Second, the RW Employees and RWC submit that the purpose of examinations falls outside the ambit of s 596B of the Act because the examinations and orders for production do not involve upholding the requirements of the Act or investigating misconduct on the part of FSM’s officers; that the examinations have a predominant purpose which is foreign to that permitted under s 596B of the Act; and that they constitute an abuse of process. Mr Thomas further submits that:

I do not accept that submission, which seems to me to turn upon a false dichotomy. It appears that Stingray’s potential claims against RWC or Keyview or their associates turn, at least in part, upon claims for breach of director’s duties against Mr Guo and the potential for accessorial liability against RWC or Keyview, and the exploration of those matters serves the purposes of enforcement of the Act, the promotion of compliance with the Act and the protection of FSM’s creditors from corporate misconduct, all of which are proper purposes of an examination under ss 596A–596B of the Act.

Mr Cook responds, and I accept, that an allegation of abuse of process is not easily established: Re Global Medical Imaging Management Ltd (in liq) [2001] NSWSC 481 at [13]; Re Newheadspace Pty Ltd (in liq) (2020) 144 ACSR 224 at [105]; [2020] NSWSC 173. He also submits that there is a plainly arguable case that Mr Guo may have breached his duties as a director of FSM in causing FSM to enter into the amended loan arrangements, given their arguably onerous terms and in the circumstances to which I referred above. Mr Cook also contends that:

Mr Cook submits, and I accept that, so far as claims that are available to Stingray arise from Mr Guo’s conduct as a director of FSM, in entering that arrangement on behalf of FSM, that is within the scope of the examinable affairs of FSM; the investigation of an arguably uncommercial transaction between FSM and Guo on the one hand and RWC and Keyview on the other, is within the proper scope of s 596A-596B of the Act; and the High Court’s decision in Arrium establishes that it is not necessary that FSM obtain a direct benefit from any claim that may be made by its creditors against its officers in that respect.

It seems to me that neither an illegitimate purpose on Stingray’s part nor abuse of process is established here for the reasons noted in paragraphs [27] and [32]–[33] above.

Alternatively, Mr Thomas submits that the examination proceedings should be transferred to the FCA under s 1337 of the Act, by the Court of its own motion.

As I have noted above, there is a dispute between the parties as to whether the Court has power to transfer an examination to another Court under s 1337 of the Act, which turns upon the correctness of the decision in Re Westgate Wool Co Pty Ltd (in liq) (2006) 206 FLR 190 at [27]–[29]; [2006] SASC 372 (“Westgate Wool”), which held that the Court has no such power. Mr Thomas contends that decision was wrongly decided. Mr Cook responds that there is at least doubt as to whether the Court has power to transfer the examinations to the FCA under that section, by reason of that decision, and points to the disadvantage of such a transfer to Stingray arising from the limited availability of examination dates in the FCA in any event. I do not consider that it is necessary to determine the dispute as to the correctness of Westgate Wool in this application, both because I have stayed the examinations for the reasons set out above, and because there are several reasons why the Court should not exercise its power to transfer the examinations to the FCA of its own motion.

The first is that the RW Employees and RWC did not themselves bring an application for transfer of the examinations to the FCA, apparently because they consider they are not parties to the proceedings and do not have standing to bring such an application. It seems to me that it would be inconsistent with that proposition for the RW Employees and RWC, on the premise that they do not have standing to seek a transfer, then to urge the Court to make that transfer of its own motion so as to avoid their lack of standing. Second, it seems to me that there would be no, or no significant advantage, in transferring the examinations to the FCA, since substantially the same issues as to duplication would arise in the FCA, where it is now too late for the examinations of the RW Employees by Stingray to take place together with the examinations undertaken by the Liquidators, which have already occurred. Third, it seems to me that a transfer of examinations would generally not be appropriate under s 1337H of the Act, particularly where it is sought immediately before examinations are due to take place before the transferring Court. The transferring Court would often limited knowledge as to when the transferee Court could list those examinations and there is every likelihood that a transfer of examinations to another Court would delay them by a significant period. The evidence here suggests that it would likely be some time before the FCA could list such examinations and that a transfer to the FCA would result in significant delay, although I recognise that the effect of that delay would be mitigated, at least to some extent, by the fact that, as I noted above, Stingray does not now seek to proceed with the examinations of the RW Employees commencing next week in this Court. For all these reasons, even if I had power to transfer the examinations, which it is not necessary to decide, I would not have done so.

The Keyview Employees similarly seek an order that summonses for examination under s 596B of the Act issued to them be discharged or set aside, and orders are also sought by them and Keyview setting aside orders for production made in this Court. The issue as to orders for production has been displaced for the reasons noted above.

Keyview reads the affidavits dated 4 August and 21 August 2025 of its solicitor, Mr Forrest and also tenders a substantial exhibit. By his first affidavit, Mr Forrest also outlines the sequence of events to which I referred above, by which a trust associated with Keyview became a substituted lender to FSM on the amended terms arising from the restatement of the loan facility to which I referred above. Mr Forrest also refers to the Liquidators’ examinations in the FCA, which included the issue of an order for production to Keyview and summonses for examination to the Keyview Employees; the production of documents by Keyview in the FCA; and to orders for production subsequently issued on the application of Stingray brought in this Court to Keyview, seeking similar categories of documents to those which had been sought by the Liquidators in the FCA and summons for examinations issued to the Keyview Employees in this Court. Mr Forrest also asserted the existence of confidentiality issues on the basis that Zagga and Keyview are competitors in the private credit market, but it is not necessary to address any question as to that matter to determine this application.

By his second affidavit, Mr Forrest addressed the further conduct of the examinations in the FCA, including the Liquidator’s examinations of the Keyview Employees in the FCA and the topics as to which they were examined. Mr Forrest also addressed the production of documents by Keyview in the FCA and discussions as to the possibility of the transfer of the examinations in this Court to the FCA, of a similar kind to those which had arisen in respect of the RW Employees.

By her submission on behalf of the Keyview Employees and Keyview, Ms Scott advances much the same submissions as Mr Thomas for the RW Employees and RWC and similarly submits that the summonses for examination addressed to the Keyview Employees and the orders for production addressed to the Keyview Employees and Keyview should be set aside. As I noted above, issues concerning the orders for production were substantially resolved in the course of the hearing. Ms Scott also submits that parallel proceedings in the FCA and this Court, in respect of the Liquidators’ examinations and Stingray’s proposed examinations would cause “obvious prejudice” to the Keyview Employees who had already been examined in the FCA where the Liquidators had also foreshadowed their further examinations in the FCA.

Ms Scott submits that, having regard to a suggested “paucity of evidence” about Stingray’s purpose in seeking to conduct the examinations, the Court would not consider it an appropriate and efficient use of public money and Court resources to allow “duplicative” proceedings to be maintained. I do not accept that submission, once the risk of duplication has been properly managed, where it is plain enough that the examinations in this Court would be directed to Stingray’s investigation of matters including potential breaches of director’s duties by Mr Guo and any involvement by Keyview and the Keyview Employees in those breaches.

Ms Scott also points to a potential risk of inconsistent findings in respect of claims for legal professional privilege and confidentiality in respect of the production of documents in FCA and in this Court. That risk would arise in any case where the same documents were produced in more than one Court and such disputes arose, but that question no longer arises here given the approach which has been adopted in respect of the production of documents. She also refers to potential inconvenience and cost to the Keyview Employees who had already been examined in the FCA. I do not accept that the Keyview employees have any proper expectation that, because they have been examined by the Liquidators in respect of proceedings which may be brought by the Liquidators against Keyview or against them, they will not in future be examined by other persons who have standing to conduct such examinations in respect of separate proceedings which may be brought by those persons against Keyview or against them, provided that proper steps are taken to manage the risk of duplication between those examinations.

Ms Scott also submits that there is prima facie duplication, where Stingray is funding the examinations in the FCA and conducting its own examinations in this Court. I also do not accept that submission, where the fact that Stingray has funded the Liquidators’ examinations, directed to advancing the interests of FSM and its creditors generally, does not provide reason to disregard the difference in interests between FSM or the Liquidators as plaintiffs and Stingray as a plaintiff, where they likely have different claims, albeit arising from common factual circumstances.

I have addressed Mr Cook’s submissions in response in dealing with the application by the RW Employees and RWC above.

I do not consider that a basis to set aside the examinations of the Keyview Employees in this Court has been established, for the same reasons that a basis for that order was not established in respect of the examinations of the RW Employees. I am satisfied that I should stay those examinations on the same basis as the examination summonses issued to the RW Employees was stayed, until Stingray takes appropriate steps to manage the risk of duplication between the Liquidators’ examinations of the Keyview Employees in the FCA and its proposed examinations of those persons in this Court.

By an Interlocutory Process belatedly filed on 15 August 2025, Mr Guo sought an order extending the time allowed by r 11.5(2) of the Supreme Court (Corporations) Rules 1999 (NSW) (“Corporations Rules”) to bring an application to discharge the examination summons issued to him under s 596A of the Act, and an order that that summons be set aside.

Mr Guo relied on his affidavits dated 15 and 22 August 2025 and the affidavit dated 25 August 2025 of his solicitor, Mr Chong. By his first affidavit, Mr Guo refers to the summons for examination issued at the request of Stingray in these proceedings and to the fact that he was previously examined by the legal representatives of Stingray in this Court on 3 June 2025; and to a subsequent summons for examination issued by the Liquidators in the FCA and the fact that he has also been examined by the legal representatives of the Liquidators in the FCA on 12 August 2025, and that is now required for examination by Stingray in this Court in the period from 1 September 2025 and potentially for further examination by the Liquidators in the FCA.

By his second affidavit, Mr Guo refers to orders for production made in this Court and his production of documents in this Court; and to orders for production made in the FCA, with a significant number of overlapping categories, and his production of documents in the FCA. He also elaborates in that affidavit on the topics on which he was examined on 3 June 2025 in this Court and on 12 August 2025 in the FCA and expresses the view that he was then being asked the same questions again. He also refers to his concern about duplication of legal costs if he is to be further examined by Stingray and then by the Liquidators and his evidence is that that concern has prompted him now to seek to set aside Stingray’s examination summons in this Court.

By his affidavit dated 25 August 2025, Mr Chong refers to his service of this application on the Australian Securities and Investments Commission, which has not sought to appear in these proceedings.

I summarised the purpose of the time limit under r 11.5 of the Corporations Rules in Re Ji Woo International Education Centre Pty Ltd (2019) 134 ACSR 448; [2019] NSWSC 93 at [24] as follows:

I also accept that the Court has power to extend the time to bring such an application under r 1.12 of the UCPR, and there are cases where that has occurred, including Bridgeport – Advisers and Asset Managers Pty Ltd (2005) 221 ALR 146; [2005] NSWSC 757. Mr Haines, who appears for Mr Guo in this application, also refers to my identification of the relevant factors in extending the time for such an application Re Kurmond Industries Pty Ltd (in liq) [2021] NSWSC 147 and in Re Stewart Free as Liquidator of Future Power Developments Pty Ltd (in liq) [2025] NSWSC 619 at [7].

Mr Haines sets out the history of service of examination summonses on Mr Guo, which differs from the position in respect of the RW Employees and the Keyview Employees because Mr Guo was previously examined in this Court on 3 June 2025, before he was examined by the Liquidators in the FCA on 12 August 2025 and was again to be examined in this Court in early September 2025. Mr Haines also refers, with some force, to the fact that Mr Guo has now participated in examinations by both Stingray and the Liquidators in this Court and the FCA, respectively, and that his decision to bring this application, albeit it late, is explicable by the fact that it has now emerged that both Stingray and the Liquidators are contemplating further examinations of him. Mr Haines also points to the fact that hearing his application, where the Court will already be hearing corresponding applications by the RW Employees and RWC and by the Keyview Employees and Keyview, will cause no real disadvantage to Stingray or to the community.

Mr Haines otherwise refers to submissions made by Mr Thomas and Ms Scott in respect of oppression and submits that the duplication caused by having the two examinations continue will be oppressive to Mr Guo where, he submits, there is no apparent need for parallel proceedings. Mr Haines also submits that, while Stingray may be investigating its own claims, that is not a reason why an examination by the Liquidators will not satisfy Stingray’s needs. He also submits that the examinations sought by Stingray expose Mr Guo to financial prejudice and consequently oppression arising from his costs of attending those examinations and will deplete or delay the use of Court resources by other parties. I have addressed Mr Cook’s submissions in response in dealing with the application by the RW Employees and RWC above.

I have borne in mind the lateness of Mr Guo’s application to set aside the examination summons in this Court. However, on balance, it seemed to me that there is sufficient basis to grant an extension of time for him to bring his application to set aside the examination summons in this Court, where he appeared in the FCA for examination by the liquidators on 12 August 2025, and his evidence is that the alleged duplication as between the earlier examination in this Court and the Liquidators examination in FCA has prompted his application to set aside the further examination in this Court, which was to take place less than a month after the Liquidators’ examination in the FCA. I am not persuaded that I should set aside the examination summons issued to Mr Guo, but I am satisfied that I should stay it on the same basis as the examination summonses issued to the RW Employees and the Keyview Employees, until Stingray takes appropriate steps to manage the risk of duplication between the Liquidators examinations in the FCA and its proposed examinations in this Court.

For these reasons, I made the following orders at the conclusion of the hearing on 25 August 2025: