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Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related policy and law reform, in Australia and internationally. No legal advice is offered or given.

Executing a search warrant for the property of an insolvent company

Attempts to execute a liquidator’s s 530C search warrant for a large prime mover vehicle led to threats, a ‘long chain’, a baseball bat and a dark sedan.

Unfortunately, the vehicle identification details in the warrant were incorrect. 

The attempt to execute the warrant

The Judge set out the chain of events, of which this is a paraphrase:

  • Agents ET and AP attended the property to execute the warrant
  • J then arrived and started threatening both agents and ET’s car and started to walk towards the car with a long chain.
  • Agents AP and ET moved off the property to wait for police presence as the situation was escalating and more people were turning up.
  • A ute turned up and the male occupant made threats to both agents.
  • A dark sedan also turned up, the male occupant got out of the vehicle with what appeared to be a baseball bat and started speaking with J.
  • J and the male started walking towards both agents with the chain and bat.
  • Both agents drove away from the property and were then chased by the male in the dark sedan.
  • The police arrived and spoke with all parties involved.
  • One of the males attempted to attack agent AP.
  • The Police Officer intervened and calmed everyone down.
  • Agent AP withdrew so the Police Officer could talk to the subjects. Another Officer arrived shortly after.
  • The Police Officers checked the VIN’s on all trucks on site and none matched the VIN of the truck on the warrant.

Problem

The problem was that the incorrect VIN [vehicle identification number] had been recorded on the warrant.  A new warrant was ordered to be issued: Tang (liquidator) v Wright, in the matter Wright’s Transport Pty Ltd (in liq) (No 2) [2020] FCA 749

Next time

The same sort of events may or may not arise next time the correct warrant is to be executed.

Another example

In another case, Re Rainbow Systems of Australia P/L [1996] NSWSC 289, a liquidator sought a warrant for the arrest of the person who had the relevant property, under s 486B.

The Judge there pointed out that section 486B was inserted at the same time as s 530C and continued:

“I think also the time has now been reached where the public expects that if people do not comply with the [then] Corporations Law in respect of failed companies they can expect to be pursued. There is power under s 486B to arrest a company director who is concealing books from the liquidator. It seems to me that, generally speaking, if a warrant is issued under s 530C and produces a nil result an order should be made for the arrest of the directors, but for the writ to lie in office for, say, seven days so that they can explain to the court what has happened to the records so that the law does not take the course it would otherwise take.”

Bankruptcy

Section 130 is the equivalent warrant provision under the Bankruptcy Act; such a warrant can only be issued by an eligible judge: s 129A. Hindering or obstructing the execution of a warrant is an offence: s 265A.

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