Obtaining AFP seized documents as a liquidator is tricky!

Hard drives seized by search warrant from a company by the Australian Federal Police ARE books and records that MAY need to be delivered to a liquidator, according to a Full Federal Court case last Friday.

Caratti v Harris & Kirman as Joint Liquidators of GH1 Pty Ltd [2019] FCAFC 124

** It all depends on who the request is made to **

4-ish things I learnt from the case:

1. a request directly to the AFP to obtain the hard drives is made via s3N of the Crimes Act;

2. 3N requires the applicant to be an ‘occupier individual’ (eg director/shareholder) who was present at the seizure;

3. if an individual makes a request under s3N, and obtains the hard drives, then:

(A) legal professional privilege will not (as of right) bar the liquidator;

(B) if the individual is a director/related of the company, the liquidator can request the docs under s530A of the Corporations Act; and

(C) if not a director/related, the liquidator will be required to make the request under s530B; and

4. the scope of 530A and 530B are different. 530A only requires the hard drives to ‘relate to the company,’ whereas 530B requires ‘ownership’ by the company

In this case, the director had made the 3N request before a liquidator was appointed. Once appointed, the liquidator was free to request the hard drives via 530A.

What would have been the outcome if no 3N request had been made?

auslaw insolvency SVVoidables

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s