ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No. 11)

In the case of ABC Learning Centres Limited, the liquidators sought to vary the existing confidentiality regime to enable them to provide all documents produced by the banks relating to the public examinations to employees of IMF subject to a new confidentiality undertaking. The banks sought to set aside orders for production of documents in relation to examinations conducted under the Corporations Act 2001 (Cth) or to be excused from further production. The court had to decide whether the liquidators should be released from the undertaking not to provide certain documents to a litigation funder, whether third parties should have access to documents produced but not referred to during public examinations, and whether confidentiality safeguards are effective. The court also had to decide whether the examinations were still continuing at the time of the production orders, whether the documents required under the production orders relate to the examinable affairs of the company, whether the production orders are oppressive, and whether the production orders are ambiguous or uncertain.

The court found that the statutory duties of the liquidators outweigh the interests of the banks in maintaining the confidentiality of the documents referred to in Paragraph 2 of Schedule 2 of the July 2011 Orders. The court set aside the orders that had been made in relation to the banks’ application and ordered that within 21 days, the parties formulate a precise form of order to accord with the findings of the Court concerning the documents to be produced under Paragraph 2 of Schedule 2 to orders made on 8 July 2011. The court also ordered that each party pay their own costs of and incidental to the banks’ interlocutory process. The liquidators were justified, upon terms as to confidentiality in the terms of Schedule 3 attached to the liquidators’ interlocutory process, in providing to IMF (Australia) Ltd copies of documents that have been or are produced to the Court or provided to the liquidators or to their solicitors or counsel in relation to the public examinations in proceedings NSD 1257 of 2009. The liquidators’ costs and expenses of the liquidators’ interlocutory process were costs and expenses of the liquidation of the Second Plaintiffs.