AIK Corporation Pty Ltd (Administrators Appointed) v 119 Nicholson Road Pty Ltd
[2015] WASC 391
•14 OCTOBER 2015
AIK CORPORATION PTY LTD (ADMINISTRATORS APPOINTED) -v- 119 NICHOLSON ROAD PTY LTD [2015] WASC 391
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 391 | |
| Case No: | COR:229/2015 | 9 OCTOBER 2015 | |
| Coram: | TOTTLE J | 14/10/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application to effect sale of property granted Application to appoint provisional liquidator adjourned | ||
| B | |||
| PDF Version |
| Parties: | AIK CORPORATION PTY LTD (ADMINISTRATORS APPOINTED) 119 NICHOLSON ROAD PTY LTD GUCCE HOLDINGS PTY LTD AIK CORPORATION PTY LTD |
Catchwords: | Application to effect sale of property Trustees Act 1962 (WA), s 89(1) Expedient for management of trust property Difficult or impractical to effect sale without assistance of the court Interests of beneficiaries paramount Application for appointment of provisional liquidator Corporations Act 2001 (Cth), s 472(2) Serious question to be tried Balance of convenience does not favour appointment |
Legislation: | Corporations Act 2001 (Cth), s 437C, s 440D, s 459C, s 459E, s 472(2) Trustees Act 1962 (WA), s 53, s 89(1), s 94(1) |
Case References: | Boral Resources (WA) Ltd v Innovative Precast Systems Pty Ltd (1998) 16 ACLC 1570 Club Mediterranean Pty Ltd 11 (1975) SASR 481 Karger v Paul [1984] VR 161 Lonbavitch Mazel Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 Nevin v The Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300 Re Ebbett (dec) [1974] 1 NZLR 392 Re Ellis; Ellis v Ellis [2015] WASC 77 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
In the matter of 119 Nicholson Road Pty Ltd
- Plaintiff
AND
119 NICHOLSON ROAD PTY LTD
First Defendant
GUCCE HOLDINGS PTY LTD
Second Defendant
and
In the matter of 119 Nicholson Road Pty Ltd
- Plaintiff
AND
AIK CORPORATION PTY LTD
First Defendant
119 NICHOLSON ROAD PTY LTD
Second Defendant
Catchwords:
Application to effect sale of property - Trustees Act 1962 (WA), s 89(1) - Expedient for management of trust property - Difficult or impractical to effect sale without assistance of the court - Interests of beneficiaries paramount
Application for appointment of provisional liquidator - Corporations Act 2001 (Cth), s 472(2) - Serious question to be tried - Balance of convenience does not favour appointment
Legislation:
Corporations Act 2001 (Cth), s 437C, s 440D, s 459C, s 459E, s 472(2)
Trustees Act 1962 (WA), s 53, s 89(1), s 94(1)
Result:
Application to effect sale of property granted
Application to appoint provisional liquidator adjourned
Category: B
Representation:
COR 229 of 2015
Counsel:
Plaintiff : Mr J E Scovell
First Defendant : No appearance
Second Defendant : Mr P Fletcher
Solicitors:
Plaintiff : Oceanic Legal Pty Ltd
First Defendant : No appearance
Second Defendant : Fletcher Law
CIV 2505 of 2015
Counsel:
Plaintiff : Mr P Fletcher
First Defendant : Mr J E Scovell
Second Defendant : No appearance
Solicitors:
Plaintiff : Fletcher Law
First Defendant : Oceanic Legal Pty Ltd
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Boral Resources (WA) Ltd v Innovative Precast Systems Pty Ltd (1998) 16 ACLC 1570
Club Mediterranean Pty Ltd 11 (1975) SASR 481
Karger v Paul [1984] VR 161
Lonbavitch Mazel Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535
Nevin v The Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300
Re Ebbett (dec) [1974] 1 NZLR 392
Re Ellis; Ellis v Ellis [2015] WASC 77
- TOTTLE J:
Introduction
1 The plaintiff (Gucce) and the first defendant (AIK) each hold 50% of the units in a unit trust, inaptly named, the 119 Nicholson Road Discretionary Trust (the Trust).
2 The second defendant (the Company) is the trustee of the Trust, that is its only activity. The sole directors of the Company are Ms Tina Michelle Bazzo and Ms Annette Ilse Kuhnert. The relationship between Ms Bazzo and Ms Kuhnert as directors has broken down. There are disputes about a range of matters concerning the affairs of the Company.
3 Presently, however, the central issue between the parties is whether an offer (the Offer) received from a third party to buy one of the Trust's assets, land at Mitchell Street, Spalding (Mitchell Street), should be accepted and the sale completed. The Offer provides for settlement on 17 November 2015 or earlier by agreement. On behalf of Gucce, Ms Bazzo contends that the Offer should be accepted as a sale of Mitchell Street would generate cash to pay several of the Company's creditors, including a judgment creditor, who are pressing for payment. Indeed, Ms Bazzo has already signed the Offer indicating her acceptance of it. Ms Kuhnert's position is that she does not have sufficient information on which to make an assessment as to whether the Offer should be accepted.
4 The parties propose competing solutions to the resolution of the issue. Gucce urges the court to make orders pursuant to s 89(1) and s 94(1) of the Trustees Act 1962 (WA), supplemented if necessary by the exercise of the powers that reside within the inherent equitable jurisdiction of the court in order to accept the Offer and effect a sale of Mitchell Street. AIK submits that the Company is insolvent and that a provisional liquidator should be appointed with authority to commission a valuation of Mitchell Street and thereafter determine what should be done in relation to the Offer.
5 Against that background:
(a) by an originating summons issued on 18 September 2015 (CIV 2505 of 2015) Gucce applied to the court for orders designed to effect the sale of Mitchell Street in accordance with the terms of the Offer (trustee application);
(b) by an originating process issued on 25 September 2015 (COR 229 of 2015) AIK applied to wind up the Company and by an interlocutory process issued on 29 September 2015 applied for an order that a provisional liquidator be appointed to the company pursuant to s 472(2) of the Corporations Act 2001 (Cth) (the provisional liquidator application).
6 I directed that the trustee application and the provisional liquidator application be heard together and that the evidence in one application stand as the evidence in the other.
7 In other proceedings Gucce has applied to wind up AIK. Those proceedings were due to be heard on 6 October 2015.
8 On 5 October 2015 Ian Russell Lock and John Sheahan (the Administrators) were appointed joint and several administrators of AIK. The Administrators consented to the trustee application proceeding, pursuant to s 440D of the Corporations Act.
9 An island of common ground in this sea of troubles is that both parties agree Mitchell Street should be sold.
The evidence
10 Gucce read and relied upon affidavits sworn by Ms Bazzo on 18 and 30 September 2015 and 2, 5 and 8 October 2015, an affidavit sworn by Ms Bushra Tariq on 23 September 2015, an affidavit sworn by Ms Kate O'Brien on 24 September 2015, and an affidavit sworn by Mr Benjamin Luke McPherson on 1 October 2015.
11 AIK read and relied upon affidavits sworn by Ms Kuhnert on 23 and 29 September and 5 and 7 October 2015, and an affidavit sworn by Mr Ian Russell Lock on 8 October 2015.
12 A number of objections were taken to the affidavits. The parties agreed that I should not rule on the majority of the objections but make an assessment of the weight to be attached to the evidence to which the objection was taken. Gucce pressed its objections to the entirety of the affidavits of Ms Kuhnert sworn on 5 and 7 October 2015 on the basis that in swearing those affidavits Ms Kuhnert was exercising a power as a director of AIK after the appointment of the administrators contrary to the statutory prohibition in s 437C of the Corporations Act. The objection fell away in relation to the affidavit of 5 October 2015 as Mr Fletcher, who appeared for Gucce, conceded that there was no evidence that Ms Kuhnert swore that affidavit after the appointment of the Administrators. That only left the objection to the affidavit of 7 October 2015. In my opinion, in swearing that affidavit, Ms Kuhnert was doing no more than acting as a witness. She was not purporting to perform or exercise a function or power as an officer of the Company. I allowed Ms Kuhnert's affidavit of 7 October 2015 to be read.
The facts
13 The evidence traversed a number of controversial issues. The essential facts were, however, largely uncontroversial and can be stated quite shortly.
14 The Trust was constituted by a trust deed dated 10 April 2005 made between the original trustee, Daleside Holdings Pty Ltd, and Gucce and AIK as the original unit holders. The Company replaced Daleside as trustee. Each of Gucce and AIK were issued with 10 units in the Trust and their unit holdings have not changed.
15 The terms of the trust deed are unexceptional. Clause 19 of the trust deed is entitled 'PROCEEDINGS OF TRUSTEE' and cl 19.2 is in the following terms:
A corporate Trustee may exercise or concur in exercising any discretion or power conferred on the Trustee by a resolution of the company or of its directors or (not being a sole Trustee) by its representative appointed for the purpose of attending meetings of the Trustee.
16 Clause 20(4) of the deed empowers the Trustee to sell or dispose of any property making up the Trust Fund on such terms as the Trustee thinks fit.
17 Clause 26 of the deed is entitled 'INCAPACITY OF TRUSTEE', and it is as follows:
A Trustee shall ipso facto vacate that office if that person -
(a) being an individual, dies, becomes insolvent or incapable of managing his own affairs; or
(b) being a company, enters into liquidation (other than a voluntary liquidation for the purpose of amalgamation or reconstruction) or if a receiver is appointed over its property.
18 The Trust is the vehicle for a joint venture between interests associated with Ms Bazzo and Mr Allen Caratti on the one hand and Ms Kuhnert on the other hand. Ms Kuhnert has received some assistance in relation to the Company's affairs from Mr Kevin Pollock and Mr Jamie Pollock.
19 The Trust invested in land in Spalding, a suburb of Geraldton. In addition to Mitchell Street, its assets comprise properties at Bedford Street, Spalding and Chapman Road, Glenfield. All of these properties were purchased in 2006/2007. They are now worth significantly less than the amounts paid for them. The Trust owned a further property in Geraldton, at Verita Road, Rudds Gully. This property was sold in November 2011, pursuant to an order made on 3 November 2001 by this court under s 89 and s 94 of the Trustees Act. I was informed that this order was made by consent.
20 The Trust's activities are financed primarily by loans from Gucce and AIK or companies associated with them. There are disputes about the terms and amounts owing in respect of these loans.
21 A significant 'external' creditor is Angas Securities Limited (Angas). Pursuant to a loan agreement dated 24 July 2007 the company is indebted to Angas in the sum of at least $586,753.70. The loan is secured by a fixed and floating charge, by a first registered mortgage over the Bedford Street property and by guarantees from Ms Bazzo, Ms Kuhnert, Mr Caratti and Gucce. The term of the loan expired in July 2014. Gucce contends that the term was extended to 31 July 2015. AIK disputes that this was so. On any view, however, the Company is now in default of its obligations to Angas and liable to pay interest on the amount owing at the rate of 22% per annum.
22 The Company is indebted to the Commissioner of State Revenue in the amount of $45,355.30 in respect of unpaid land tax for the years 2013/2014 and 2014/2015. The Commissioner of State Revenue served a statutory demand pursuant to s 459E of the Corporations Act 2001. The debt was not paid and no application to set aside the statutory demand was made. A statutory presumption of insolvency has arisen, s 459C(2) of the Corporations Act 2001. This is the basis of AIK's application to wind up the company.
23 The Company entered into a payment arrangement with the Commissioner of State Revenue but was unable to make payments in accordance with the arrangement.
24 The City of Greater Geraldton obtained two judgments against the Company on 22 September 2014 in respect of unpaid rates. The amounts due in respect of these judgments is currently in excess of $12,380. Property (Seizure and Sale) orders in respect of Mitchell Street were made on 20 February 2015. The City of Greater Geraldton's agents are threatening a sale of Mitchell Street.
25 The Company owes the City of Greater Geraldton $86,395.88 in respect of rates for the 2015/2016 year. These rates were due and payable on 27 August 2015.
26 Clearly, the evidence suggests that the Company is insolvent. This is not an issue which I am called upon to determine finally and nor could I do so in the context of these applications.
27 Valuations of the Bedford Street and Chapman Road properties valuing those properties at 3 August 2015 were in evidence. Those valuations point to a very significant decline in the value of those properties. Those properties comprise unimproved land covered with natural vegetation with some potential for residential subdivision. Mitchell Street is unimproved land covered with natural vegetation with similar potential for subdivision. Mitchell Street is close to the Bedford Street property.
28 In March 2012 Mitchell Street was valued. The value was less than the price specified in the Offer.
29 All of the Trust's properties have been marketed by Mr Ian Wheatland of Ray White Geraldton, real estate and business agents. On 19 August 2015 a third party made the Offer to purchase Mitchell Street in the sum of $1,190,000 plus GST. This offer was made as a result of negotiations on the Company's behalf by Mr Wheatland. This was the second offer received from the prospective purchaser in 2015. The previous offer was made in February 2015 and the offer price on that occasion was $1,300,000 plus GST. The previous offer was subject to finance and subject to due diligence. Ms Bazzo deposed that the offer did not proceed to settlement because the purchaser demanded an additional 90 days to undertake due diligence on top of the 180 days provided in the offer. There is no evidence that the previous offer was disclosed by Ms Bazzo to Ms Kuhnert.
30 Ms Bazzo signed the Offer. She deposed that she sent a copy of the Offer by mail to Ms Kuhnert under cover of a letter dated 19 August 2015. In the accompanying letter Ms Bazzo asked Ms Kuhnert to inform her by 5.00 pm on 5 September 2015 if she, Ms Kuhnert, did not agree to the sale. In her letter Ms Bazzo stated that if Ms Kuhnert did not agree to sell, she would make an application to the court for an order for the sale of the property. In the letter Ms Bazzo adverted to the need to realise funds to pay creditors.
31 Ms Kuhnert said that she did not receive Ms Bazzo's letter of 19 August 2015 and the enclosed copy of the offer as it was sent to an address at which she no longer resided.
32 Various emails were exchanged between Mr Caratti, acting on behalf of Ms Bazzo, and Ms Kuhnert and Mr Kevin Pollock acting on behalf of AIK regarding the Offer and the Company's financial position. It is unnecessary to recite the detail of these emails. The substance of Mr Caratti's emails was to the effect that he and Ms Bazzo needed an urgent response from Ms Kuhnert as to whether she would accept the Offer so that the sale could proceed and the Company's creditors paid.
33 In the absence of a substantive response from Ms Kuhnert, Ms Bazzo convened a meeting of directors of the Company to be held at Gucce's solicitors' office on Friday, 18 September 2015. On 17 September 2015 Ms Kuhnert sent an email to Mr Caratti saying that she would be unable to attend the directors' meeting to be held the following day because her young child was unwell and asked for the meeting to be rescheduled until Tuesday or Wednesday of the following week, 22 or 23 September 2015. Mr Caratti declined to postpone the meeting and suggested that Mr Kevin Pollock or Mr Jamie Pollock attend in place of Ms Kuhnert. No meeting of directors took place and Gucce issued the trustee application.
34 By an email sent on 24 September 2015 Mr Pollock, acting for Ms Kuhnert, sought various information about the Company's finances from Mr Caratti.
35 The Administrators have requested payment of $1,996,109 from the Company. This sum is said to be the balance owing by the company to AIK in respect of loans made by AIK to the Company. Gucce disputes that the loan is presently repayable.
The statutory provisions
36 Section 89(1) of the Trustees Act is in the following terms:
Where in the opinion of the Court any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, retention, expenditure or other transaction is expedient in the management or administration of any property vested in a trustee, or would be in the best interests of the persons, or the majority of the persons, beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the disposition or transaction without the assistance of the Court, or it or they cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument (if any) or by law, the Court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions (if any) as the Court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne, and as to the incidence thereof between capital and income.
37 Section 94(1) is in the following terms:
Any person who has, directly or indirectly, an interest, whether vested or contingent, in any trust property, and who is aggrieved by any act, omission or decision of a trustee in the exercise of any power conferred by this Act, or who has reasonable grounds to apprehend any such act, omission or decision of a trustee by which he will be aggrieved, may apply to the Court to review the act, omission or decision, or to give directions in respect of the apprehended act, omission or decision; and the Court may require the trustee to appear before it, and to substantiate and uphold the grounds of the act, omission or decision that is being reviewed, and may make such order in the premises as the circumstances of the case may require.
38 In Re Ellis; Ellis v Ellis [2015] WASC 77 [119] EM Heenan J said the following about the inherent jurisdiction of the court:
The amplitude of the powers of the court to review or control the actions of a trustee are very broad. The court has jurisdiction under s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) as a court of equity with the power and authority to do, exercise and perform all acts, matters or things necessary for the due execution of such equitable jurisdiction as possessed by the Lord Chancellor of England: see my observations in Tsaknis v Lilburne [2010] WASC 152 [35].
39 There is no need to establish an absence of power before the court's jurisdiction to make an order under s 89(1) of the Trustees Act 1962 arises: see Re Ebbett (dec) [1974] 1 NZLR 392, 398 (Perry J) and Nevin v The Beneficiaries of the Peppermint Beach Estate Trust [2002] WASC 300.
40 A court will not generally review the exercise of a discretion by a trustee if the trustee has acted in good faith and upon real and genuine consideration, and in accordance with the purposes for which the trust was conferred: see Karger v Paul [1984] VR 161, 164.
41 In Boral Resources (WA) Ltd v Innovative Precast Systems Pty Ltd (1998) 16 ACLC 1570 Master Sanderson said that there were two relevant issues in determining whether a provisional liquidator should be appointed: whether there was a serious question to be tried; and where the balance of convenience lies. Provisional liquidators are frequently appointed where there is a risk of dissipation of a company's assets. In Club Mediterranean Pty Ltd 11 (1975) SASR 481, however, Bright J noted that there may be occasions in which paralysis in the affairs of a company due to internal disputes, coupled with the need to act urgently, may justify the appointment of a provisional liquidator. The appointment of a provisional liquidator is, however, a drastic intrusion into the affairs of a company, and should not be contemplated if there are other measures which would adequately protect the status quo: Lonbavitch Mazel Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535.
The parties' submissions
42 The parties provided detailed written submissions. In summary, the principal contentions are as follows. Gucce submits that on the evidence it is clearly expedient for Mitchell Street to be sold in accordance with the terms of the Offer and that such sale is in the best interests of the beneficiaries. Gucce submits that it is inexpedient or difficult or impractical to sell Mitchell Street without the assistance of the court because, in effect, Ms Bazzo lacks the authority to accept the Offer and execute a transfer of Mitchell Street without Ms Kuhnert's co-operation. Gucce proposed that the sale of Mitchell Street in accordance with the Offer be conditioned by the obtaining of a current independent valuation.
43 AIK contends that the orders sought by Gucce fall outside the orders that can be made by s 89 of the Trustees Act as the orders sought are not conferring a power on the company but upon Ms Bazzo. AIK points to the failure on the part of Ms Bazzo to comply with the procedure set out in cl 19.2 of the trust deed and submits that, in those circumstances, the court should be slow to intervene on the grounds of expediency. AIK also submits that in the absence of current and independent valuation evidence, the court cannot be satisfied that the price in the Offer is the best price that could be obtained and that, thus, the court cannot be satisfied that the proposed sale is in the best interests of the beneficiaries.
44 AIK submits that there are no circumstances which would justify the exercise of the power to review under s 94(1) of the Trustees Act 1962.
45 AIK urges the appointment of a provisional liquidator empowered to obtain an independent valuation of Mitchell Street and, having regard to that valuation, to review and consider the commerciality of the sale of Mitchell Street in accordance with the terms of the offer. If the provisional liquidator was satisfied that it was in the best interests of the company that the offer be accepted, then he should accept the offer, alternatively, negotiate a better offer. AIK submits that the appointment of a provisional liquidator will resolve the problems caused by the breakdown in the relationship between the parties.
Disposition
46 Subject to satisfaction of a condition that an independent valuation be obtained confirming that the price in the Offer is not below the market value of Mitchell Street, I am of the opinion that it is expedient in the management of Mitchell Street that it be sold by accepting the Offer. Separately I hold the opinion that it would be in the best interests of the beneficiaries of the Trust for Mitchell Street to be sold by accepting the Offer. I am satisfied that it is difficult or impractical to effect such sale without the assistance of the court. I propose to make orders that permit a sale in accordance with the Offer to proceed pursuant to s 89(1) of the Trustees Act 1962, and to the extent required, pursuant to the inherent jurisdiction of the court.
47 My reasons for taking this approach and not appointing a provisional liquidator are as follows.
1. Both parties agree that Mitchell Street should be sold. The difference between them is how this should be achieved.
2. If the parties cannot agree on the terms on which Mitchell Street will be sold, it is inevitable that Mitchell Street will be sold at the instance of the company's creditors, most probably the City of Greater Geraldton. A forced sale is unlikely to be in the best interests of the beneficiaries.
3. As counsel agreed, the court is faced with a choice between two unattractive options.
4. I am satisfied that s 89(1) of the Trustees Act 1962, especially if read in conjunction with s 53 of the Trustees Act 1962, enables the court to order that Ms Bazzo be appointed the Company's agent and attorney for the purposes of accepting the Offer and executing the transfer of Mitchell Street to the purchaser. If I am wrong in reaching that conclusion, I am satisfied that the power to make such an order resides in the court's inherent equitable jurisdiction.
5. The limited valuation evidence suggests that the price in the Offer is not below the market value of Mitchell Street. The valuation condition I proposed will provide comfort that Mitchell Street will not be sold at an undervalue.
6. As I have noted, the evidence suggests that the Company is insolvent. AIK has established that there is a serious question in this respect. In my view, however, the balance of convenience does not favour the appointment of a provisional liquidator. It is not necessary to appoint a provisional liquidator to obtain a current and independent valuation of Mitchell Street. Appointing a provisional liquidator will result in an extra layer of cost which will deplete the assets of the company without a corresponding advantage to the beneficiaries or, indeed, to the Company's creditors. There is the further and potentially significant complication that if the Company goes into liquidation, it will vacate the office of trustee automatically. The provisional liquidator will no longer have a role to play in winding up the Company's affairs. The provisional liquidator's role will be confined to enforcing the Company's right of indemnity. On balance, in my view, intervention by the making of orders pursuant to s 89(1) of the Trustees Act 1962 (and the inherent jurisdiction) is less drastic and less damaging to the interests of the beneficiaries and the creditors of the company than the appointment of a provisional liquidator
7. I am satisfied that the management of the Company is effectively deadlocked. I am satisfied that the sale cannot take place without the intervention of the court.
8. Whilst I think there is force in the submissions made on AIK's behalf to the effect that s 89(1) of the Trustees Act1962 should not be used as a mechanism to resolve a dispute between directors and shareholders of the corporate trustee, the interests of the beneficiaries are paramount. If it is in the interests of the beneficiaries for the sale to proceed, their interests should not be subordinated to considerations of what is the correct procedure for resolving the internal disputes of the corporate trustee.
9. The apparent insolvency of the Company is a factor which suggests that the court should exercise restraint before making orders concerning the management of the Trust but the sale of Mitchell Street is inevitable. The only issue is when and at what price Mitchell Street will be sold. Provided that the sale is at not less than market value, it is in the interests of the beneficiaries for the offer to be accepted and for the sale to proceed.
9. I cannot rule out the possibility that the appointment of a provisional liquidator may become necessary in the future and, for that reason, I will not dismiss AIK's application for the appointment of a provisional liquidator but will adjourn that application and give AIK liberty to apply on 24 hours' written notice to Gucce's solicitors.
10. In addition to seeking orders designed to effect the acceptance of the Offer and the sale of Mitchell Street, Gucce sought an order that the Company cause its accounts for the year ended 30 June 2015 to be prepared and audited. I am not prepared to make an order on those terms. I am not satisfied that the Company has the funds to instruct accountants and auditors to undertake tasks which, in the light of the dispute between the parties, may be complicated and difficult. Moreover, I am not satisfied that making such an order is within the court's powers, and even if it is, I am not satisfied that the exercise of such a power is appropriate in this case. The making of such an order would involve the court in the management of the Company.
48 I will hear the parties as to the orders to be made to give effect to these reasons and as to costs.
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