A Sydney liquidator who’s been resisting a subpoena he argues would impose unreasonable costs could be asked to justify why his conduct doesn’t warrant an inquiry, a judge said this week.
In proceedings before Corporations List judge Ashley Black on Monday the court heard that Balance Insolvency’s Tim Cook had been resisting compliance with a subpoena issued by a creditor of Bailey Roberts Group Pty Ltd (BRG).
Cook was appointed administrator of BRG on October 24, 2022 and became liquidator of the company on November 28, 2022.
The subpoena was issued in November last year and in response to iNO’s inquiries Cook said it was extremely broad and his legal advisors from Mills Oakley had been corresponding with the plaintiff’s lawyers at HWL Ebsworth about the cost of compliance given he was unfunded.
“The matter generally (not the subpoena) to which I’m not a party was returnable yesterday (Monday), not clear why the subpoena was raised without notice to us,” Cook said.
Banco Chambers’ Sebastian Hartford-Davis for the plaintiff creditor told the court that the subpoena was returnable before a Registrar today, prompting Justice Black to say that if Cook maintained his resistance then a date would need to be set so the liquidator could be heard on the question of whether the court should inquire into his conduct.
The court also heard that another creditor – Sustain Capital – was now operating the BRG business.
We asked Cook if he was investigating the circumstances of the business transfer – there was no mention of any such transaction in his February 2023 Report – but no response was forthcoming prior to publication.
Cook didn’t seem to be aware that the subpoena hearing is scheduled for this morning but iNO will update the story after Easter when the court should know if the subpoena has been complied with or not, and if the latter, whether or not its scope is unreasonably broad, whether the costs of compliance would be onerous to impose on an unfunded liquidator or whether an inquiry is justified.
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