Diakou v Yeo (liquidator), in the matter of ACN 152 259 839 Pty Ltd (in liquidation)

The Court refused leave to appeal from a decision dismissing an application to set aside s 596B examination summonses, holding that the applicants' failure to comply with programming orders, file material, or brief alternative counsel over a period of more than one month meant the refusal of an adjournment and subsequent dismissal of their application did not constitute a denial of procedural fairness. On the competency question, Beach J noted that s 24(1AA)(b)(ii) likely barred the appeal as the procedural fairness complaint was the predictable consequence of the failed adjournment application, but declined to dismiss on that basis alone given Treasury Wine, instead resolving the matter on the merits. On the substantive abuse of process arguments, the Court held that a liquidator's examinations are not rendered improper merely because they overlap with a creditor's tax objection process, the creditor funds the liquidation, or hypothetical future proceedings may be affected, and that the Court's powers under ss 596F and 597 provide adequate safeguards against any actual prejudice during examinations.