Boulos v Carter - [2005] NSWSC 891

No judgment structure available for this case.

Reported Decision:
54 ACSR 827
(2006) 24 ACLC 46

New South Wales

Supreme Court

CITATION:
Boulos v Carter; Re TARBS World TV Australia Pty Ltd [2005] NSWSC 891
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26/08/05

JUDGMENT DATE :

2 September 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Originating process dismissed with costs

CATCHWORDS:
CORPORATIONS - controllers - directors' rights of access to company documents and financial records - company in receivership - sales of property by receivers - directors seek order compelling grant of access to documents which "record and explain" all "transactions that the defendants have entered into as receivers and managers"

LEGISLATION CITED:
Corporations Act 2001 (Cth), ss.9, 198F, 290, 421, 1303

CASES CITED:
Edman v Ross (1922) 22 SR (NSW) 351
Fox v Gadsden Pty Ltd (2003) 46 ACSR 713
Gomba Holdings Ltd v Minories Finance Ltd [1988] 1 WLR 1231
Keyrate Pty Ltd v Hamarc Pty Ltd (2001) 38 ACSR 396
Metyor Inc v Queensland Electronic Switching Pty Ltd [2003] 1 QdR 186
Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496
Stewart v Normandy NFM Limited [2000] SASC 344

PARTIES:
Magdi Boulos - First Plaintiff
Maria Regina Boulos - Second Plaintiff
Phillip Patrick Carter and Martin Russell Brown in their capacity as receivers and managers of TARBS World TV Australia Pty Limited - First Defendants
TARBS World TV Australia Pty Limited - Second Defendant

FILE NUMBER(S):
SC 3277/05

COUNSEL:
Mr J.T. Johnson - Plaintiffs
Mr J. Stoljar - Defendants

SOLICITORS:
Watson Mangioni - Plaintiffs
Gilbert+Tobin - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 2 SEPTEMBER 2005

3277/05 MAGDI BOULOS and MARIA REGINA BOULOS v
PHILLIP PATRICK CARTER and MARTIN RUSSELL BROWN in their capacity as receivers and managers of TARBS WORLD TV AUSTRALIA PTY LIMITED & ANOR

JUDGMENT

The application

1 The plaintiffs (Mr Boulos and Mrs Boulos) are the directors of TARBS World TV Australia Pty Limited (which I shall call “TARBS”). By their originating process filed on 2 June 2005 they seek as against Mr Carter and Mr Brown (receivers and managers of the assets and undertaking of TARBS appointed out of court) and TARBS itself an order that they be allowed to inspect “such books and financial records kept by the defendants as correctly record and explain all transactions that the defendants have entered into as receivers and managers of TARBS World TV Australia Pty Limited”. It is clear enough that the second reference to “the defendants” is a reference to Mr Carter and Mr Brown (first defendants) to the exclusion of TARBS itself (second defendant).

The course of correspondence

2 The application is the culmination of a course of correspondence which followed the appointment of Mr Carter and Mr Brown as receivers and managers on 2 July 2004. They were appointed PanAmSat Corporation, a Delaware corporation, in exercise of a power of appointment under a debenture created by TARBS in favour of PanAmsat on 24 November 2003.

3 The first relevant request of Mr Boulos and Mrs Boulos was made by email dated 4 May 2005 directed to an employee of the receivers’ firm, PricewaterhouseCoopers. The email was sent by Mr Boulos. It read:

“As I am director of the TARBS group of companies that are currently in receivership under the control of PWC, I hereby formally request that you provide me with copies of contracts and transactions that have been entered into of sales of assets and or otherwise since 2 July 2004 until present by PWC and others.

I would appreciate if the above can be supplied to me as a matter of urgency but in any case no later than by Tuesday the 10th May 2005.”

4 This email was copied to Mrs Boulos and to Mr Sam Bilge of UBI World TV of which more will be said later. Mr Brown replied on 11 May 2005 saying:

“I note your request for access to ‘copies of contracts and transactions that have been entered into of sales of assets and or otherwise since 2 July 2004 until present by PWC and others’.

the fact that your wife Regina Boulos is the sole director and 100% shareholder of UBI;

Further, I am unaware of the reason or reasons why you require access to the documents. So that I may further consider your request, please let me know the basis upon which you require access to the documents requested.”

5 Mr Boulos’ response of the same day asserted a legal entitlement of himself and Mrs Boulos to the documents sought, saying that they were “entitled by law to know all its [ie TARBS’s] affairs and transaction [sic].”

6 Watson Mangioni, the solicitors for Mr Boulos and Mrs Boulos, wrote to Mr Brown on 26 May 2005. That letter repeated the request first conveyed by Mr Boulos’s email of 4 May 2005 and gave reasons why, in Watson Mangioni’s view, the receivers were obliged to provide access to the documents identified. Among the points made was that a director need not demonstrate a “need to know” or give any reason for wishing to inspect company books and records. It was also said that there was no reason to apprehend any misuse of power by the directors. The solicitors then said:

“A legitimate purpose of Mr Boulos in requesting access to the books and records of TARBS would include the purpose of investigating, on behalf of TARBS as charger, whether or not you have, in you capacity as the Receiver & Manager of TARBS, complied with your common law and statutory duties, and whether or not TARBS might have legal claims against you and/or PanAmSat, in respect of any transactions entered into by you (including, without limitation, with PanAmSat) as part of the receivership of TARBS.”

7 The receivers’ solicitors, Gilbert+Tobin, replied on 27 May 2005. They said that the receivers had “legitimate concerns that Mr Boulos is requesting this information for the improper purpose of disclosing it to United Broadcasting International Pty Limited (UBI), a competitor of the customers of the secured creditor, PanAmSat Corporation”. They continued:

“This legitimate concern clearly arises as a result of the factors identified in Mr Brown’s 11 May 2005 email, including the undisputed fact of Mr Boulos’ close involvement with UBI, and the fact that Mr Boulos’ email dated 4 May 2005 was copied to Sam Bilge of UBI. Although a court may assume that a director intends to act in a way which is consistent with his duties, this presumption can be displaced in circumstances where a clear inference arises that the information will be used improperly.”

8 Gilber+Tobin then acknowledged the statement by Watson Mangioni that Mr Boulos wished to see the documents solely in his capacity as a director of TARBS and did not intend to use them for “an improper purpose such as disclosure to UBI”. It was then said that if Mr Boulos signed “an appropriate confidentiality undertaking to TARBS”, the documents would be made available to him – limited, however, to “financial records” to which the statutory right under s.421(1)(d) of the Corporations Act 2001 (Cth) applies. By reply of the same day, Watson Mangioni asserted rights of Mr Boulos not only under s.421(1)(d) (together with s.421(2)) but also under s.198F and the general law. They said that Mr Boulos was not obliged to sign any confidentiality undertaking but nevertheless invited Gilbert+Tobin to submit a form for consideration by 30 May 2005.

9 When this invitation was not taken up, Watson Mangioni filed the present application on 2 June 2005 and so informed Gilbert+Tobin by letter of that date, at the same time asking whether they had instructions to accept service. Gilbert+Tobin wrote back on 3 June 2005 describing the decision to commence proceedings as “premature and unhelpful” and saying that the form of undertaking would be provided “tonight”. It was in fact sent with a fax dated the following day. Watson Mangioni replied on 7 June 2005:

“As to your draft Confidentiality Undertaking sent to us on 3 June 2005, we can see no reason why our Clients should sign the document which has been presented to us. Pursuant to Sections 198F, 247A, 290, and 421(2) of the Corporations Act, our Clients are, in their capacity as Directors of TARBS, entitled to inspect and take copies of the documents sought. Our Clients are aware of their fiduciary and statutory duties to TARBS, and the liability that they may face in the event that they breach those duties.”

10 Gilbert+Tobin wrote to Watson Mangioni on 8 June 2005 saying:

“Our view remains that your client is only entitled to receive financial records, however, on a without admission basis and to avoid unnecessary waste of the Court’s time debating the issue, our client is prepared to provide your client with the documents which he has requested regardless of whether or not they are properly characterised as financial records.

Provision of the documents would be conditional upon our receipt of the executed confidentiality undertaking, and on the basis that your clients will discontinue the proceedings with no order as to costs prior to the return date on 20 June 2005.”

11 Watson Mangioni informed Gilbert+Tobin by letter dated 9 June 2005 that their clients would not sign the confidentiality undertaking provided by Gilbert+Tobin. They also said:

“Pursuant to Sections 198F, 247A, 290 and 421(2) of the Corporations Act, our Clients are, in their capacity as Directors of TARBS, entitled to inspect and take copies of the documents sought. Those documents include all TARBS books and records, including financial records.”

12 The next letter was a letter dated 17 June from Gilber+Tobin to Watson Mangioni:

“It remains our clients’ view that provision of a confidentiality undertaking by your clients is appropriate for the reasons outlined in previous correspondence. Given that you stated in your 27 May 2005 facsimile that your clients were prepared to provide a confidentiality undertaking, we are surprised that your clients now refuse to do so and instead apparently prefer to pursue an unnecessary application to the Court.

Nonetheless, on a commercial basis and in order to avoid unnecessary dispute and costs, we are instructed that our clients will provide to your clients, without admission, copies of the documents referred to in Order 1 of the Originating Process by no later than 5 pm on 21 June 2005, and will not insist on provision of a confidentiality undertaking. This proposal is made on the basis that your clients agree to have the Originating Process dismissed, with no order as to costs.

Without conceding that your clients are entitled to records other than financial records, our clients would provide your clients with the documents referred to in Order 1 regardless of whether they are properly characterised as financial records.

If your clients agree to the above proposal, we would have no difficulty with the Originating Process being stood over for a week so as to allow your clients an opportunity to review the documents before the proceedings are dismissed.

Please let us know by return whether your clients agree with the above proposal. Given that the matter is listed on Monday, we would appreciate your response to this facsimile by 5 pm today.”

13 On 21 June 2005, Gilbert+Tobin sent to Watson Mangioni a folder of documents under cover of a letter of that date. It is appropriate to quote the letter in full:

“We refer to your email dated 20 June 2005 and to our telephone conversation of 17 June 2005.

As discussed, we enclose a folder containing the documents referred to in paragraph 1 of the Originating Process. These compromise an Asset Sale Agreement and a Deed of Assignment of Registered Trademarks between TARBS World TV Australia Pty Limited (Receivers and Managers Appointed) and others, and PanAmSat Asia Pty Limited both dated 30 November 2004.

The transaction with PanAmSat Asia Pty Limited the subject of the above documents represents the only major transaction entered into by the Receivers since their appointment. Other transactions include several minor asset sales to CityWestCentre Pty Limited. We assume that your clients do not require the documentation for these transactions. Please let us know if this assumption is incorrect.

We have taken instructions on the figure of $13,656,643.35 referred to in accounts lodged by our clients with ASIC. We attach a document entitled “Accounts of Receipts and Payments” which gives a full breakdown of that amount. We note that the document includes significant items in relation to GEERS ($1,841,215.54) and a deposit received from HF Lendfest ($3,600,000.00) which was subsequently refunded. Please let us know if your clients have any specific questions in relation to the Account of Receipts and Payments.

Corporations Act

14 Watson Mangioni wrote to Gilbert+Tobin on 24 June 2005 acknowledging receipt of the particular documents and saying:

“Our clients, as directors of the Company, are entitled to inspect the books and records of the Company, including financial records, relating to those transactions. Such records will include all records relating to the negotiating, bringing into effect and finalisation of the transactions by the Receivers and Managers on behalf of the Company.”

“It is not sufficient that your clients provide us with selectively photocopied documents which, in your clients’ view, comprise the ‘books’ and ‘financial records’ of the Company.

Each of the above documents, and any other documents relating to each of the two transactions should be made available for inspection by our clients or ourselves.

Please advise us as to whether you are instructed to make such documents available for inspection.”

15 Gilbert+Tobin said, in response, that the receivers were willing to consider any reasonable request for documents. They also said, however, that the receivers would not provide access to one particular category of documents identified by Watson Mangioni which “essentially encompass all documents generated by our clients and this firm during the course of the receivership”.

16 Correspondence thereafter was directed more towards the proceedings than to attempts to find common ground.

Clarification of the bases of the claim

17 The application by Mr Boulos and Mrs Boulos is, according to its terms, founded on ss.198F, 247A, 290, 420A and 421(2) of the Corporations Act. In the course of the hearing, Mr Johnson of counsel, who appeared for Mr Boulos and Mrs Boulos, conceded that they lacked standing under s.247A which creates jurisdiction to make an order authorising inspection of books of a company where application for the order is made by a member of the company. It is accepted that neither Mr Boulos nor Mrs Boulos is a member of TARBS.

18 Nor can s.420A be relied upon as a source of the rights Mr Boulos and Mrs Boulos assert: it imposes obligations upon receivers and other “controllers” in relation to the exercise of their power to sell.

19 Mr Johnson also made it clear that it was intended to rely on directors’ general law rights of access to company documents. Mr Stoljar of counsel, who appeared for the defendants, did not object to the reliance despite omission of reference to it in the originating process.

20 The other matter clarified in the course of the hearing is that reliance is placed on s.1303 as a source of the power of the court to make an order compelling inspection of everything within the plaintiffs’ request to which a statutory right of access is given and which is a “book”.

21 Against that background, the question to be answered is whether, with or without the aid of the s.1303 jurisdiction, any one or more of ss.198F, 290 and 421(2) or general law principles entitles Mr Boulos and Mrs Boulos to the order they seek and, if so, whether the order should, as a matter of discretion, be made.

The statutory provisions

22 It is appropriate to begin by setting out the relevant statutory provisions. Section 1303 is as follows:

“If any person in contravention of this Act refuses to permit the inspection of any book or to supply a copy of any book, the Court may by order compel an immediate inspection of the book or order the copy to be supplied.”

23 The expression “book” (in the singular) is not defined, but s.9 contains the following definition of “books”:

24 Section 198F is as follows:

Right of access to company books

Right while director

Right during 7 years after ceasing to be director

Right to take copies
(3) A person authorised to inspect books under this section for the purposes of a legal proceeding may make copies of the books for the purposes of those proceedings.

Company not to refuse access
(4) A company must allow a person to exercise their rights to inspect or take copies of the books under this section.

rules

25 The footnote to s.198F(1) directs attention to the next relevant provision, which is s.290:

“ Director access
Personal access
(1) A director of a company, registered scheme or disclosing entity has a right of access to the financial records at all reasonable times.

Court order for inspection on director's behalf
(2) On application by a director, the Court may authorise a person to inspect the financial records on the director's behalf.

(3) A person authorised to inspect records may make copies of the records unless the Court orders otherwise.

26 Section 290 is within Part 2M.2 which begins, in s.286(1), by requiring a company, registered scheme or disclosing entity to keep “written financial records” as there set out.

27 Section 421 is as follows:

Controller's duties in relation to bank accounts and financial records

(iv) the corporation's name;

The s.198F claim

28 The claim based on s.198F may be dealt with briefly. Such a claim obviously attracts the s.1303 jurisdiction, since s.198F is concerned with “books”. But the right to inspect “books” arises only “for the purposes of a legal proceeding” to which the claimant director “is a party” or “proposes in good faith to bring” or “has reason to believe will be brought against them”. An essential element is thus that the claimant director be, actually or in prospect, a party to litigation. The only basis on which it was suggested that Mr Boulos and Mrs Boulos could bring themselves within this category is that they have in contemplation (in the “proposes in good faith to bring” sense) a derivative action under Part 2F.1A based on breach by the receivers of the duties they owe in relation to exercise of the power of sale. Those duties (both in their statutory form under s.420A and at general law) are owed to the mortgagor company. Under s.236(1)(a)(ii), an officer of the mortgagor company (including a director) may bring proceedings “on behalf of a company” if granted leave under s.237 to do so. But s.236(2) says that proceedings so “brought on behalf of a company” must be “brought in the company’s name”.

29 It is, in my view, clear that a statutory derivative action thus brought at the behest of a person given standing by s.236(1)(a) and granted leave under s.236(1)(b) is a proceeding brought by the company. It has been held that the s.236(2) requirement that the proceeding be “brought in the company’s name” may be satisfied otherwise than by the obvious expedient of naming the company as plaintiff: it may be joined as a defendant (see Keyrate Pty Ltd v Hamarc Pty Ltd (2001) 38 ACSR 396, approved by the Queensland Court of Appeal in Metyor Inc v Queensland Electronic Switching Pty Ltd [2003] 1 QdR 186). But the real point is that the company is the party seeking vindication in the proceeding, not the director or other person permitted under the statutory provisions to put the company in motion by suing on its behalf. The right asserted in the proceeding can only be a right of the company, not a right of the director or other derivative initiator of the proceeding for it. And, most importantly, any relief obtained in the proceeding will enure to the company, not the initiator.

30 There is, however, another level at which the s.198F inquiry needs to be pursued. There is no apparent reason why an application for the leave of the court under s.237 by a director having standing under s.136(1)(a) cannot be within s.198F(1). Such an application is caught by the ordinary concept of “legal proceeding”, a term not defined by the Corporations Act. Section 198F(1) should therefore be regarded as available to a director who “proposes in good faith to bring” an application of that kind.

31 It was said by Judge Burley, a Master of the Supreme Court of South Australia, in Stewart v Normandy NFM Limited [2000] SASC 344 (at [10]) that a director invoking s.198F(1) “must establish the factual background to the application” and that this “may not be done by unsubstantiated assertions”. The court must find that the director in question proposes to bring the particular proceeding and that the proposal is advanced in good faith. In the present case, the evidence does not enable me to make such a composite finding in relation to any s.237 application by Mr Boulos or Mrs Boulos or both of them. Neither of them gave evidence. The only evidence of the reasons they have for seeking access to relevant documents comes indirectly from the solicitors’ correspondence. And that correspondence rises no higher than the statement in the Watson Mangioni letter of 26 May 2005 as to what a “legitimate purpose” in seeking access “would include”, followed by a reference to “investigating” whether the receivers had complied with their duties and whether TARBS “might have” legal claims against them or PanAmSat or both. That falls far short of showing that Mr Boulos or Mrs Boulos “proposes in good faith to bring” any s.237 application.

The s.290 claim

32 Section 290 is concerned with “financial records”, rather than “books” more broadly. The nature of the right it confers upon a director was described by Austin J in Fox v Gadsden Pty Ltd (2003) 46 ACSR 713 (at p.716):

“Under s 290 of the Corporations Act, reinforced by the general law, a director's right to access of corporate information is an unqualified right of access to the whole of the company's financial records. The only qualification is that the access is to be granted at reasonable times.”

33 The defendants do not dispute the rights of Mr Boulos and Mrs Boulos to access the “financial records” of TARBS. They make the point, however, that the documents actually sought by the originating process go beyond “financial records”.

34 The term “financial records” obviously refers principally to what would generally be called “books of account”, with ancillary documents and records brought within the concept by the inclusive definition in s.9. As that definition implies, “financial records” are used to compile “financial statements” and represent source materials in their preparation. In the s.290 context, this is made clear by s.286 which says that financial records kept by a company in conformity with that section must “correctly record and explain its transactions and financial position and performance” and “enable true and fair financial statements to be prepared and audited”. But “contracts and transactions” (to use the words in the plaintiff’s request of 4 May 2005) are, of themselves, too remote from the compilation of financial statements to represent “financial records”, even though the effects of contracts and transactions will inevitably be reflected in “financial records” so that they may in due course be appropriately accounted for in financial statements.

35 The defendants, as I understand the position, do not dispute that Mr Boulos and Mrs Boulos may each see the financial records of TARBS. But that, they say, does not mean that they may see the particular documents identified in the originating process.

36 In summary, s.290 would support, by means of s.1303 or more generally, an order that Mr Boulos and Mrs Boulos be given access to the whole (or some specific part) of the financial records of TARBS, assuming that there was evidence that they were being denied that access.

The s.421(2) claim

37 The right conferred by s.421(2) is a right to inspect “records kept by a controller of property of the corporation for the purposes of paragraph (1)(d)”.

38 The defendants, being receivers and managers of property of TARBS, are within the definition of “controller” for this purpose: see paragraph (a) of the s.9 definition. They are therefore required by s.421(1)(d) to keep “such financial records as correctly record and explain” the “transactions” entered into by them as controller.

39 It is necessary, at this point, to look briefly at the debenture of 24 November 2003. Clause 9.3 of the debenture empowers a receiver appointed in exercise of the power of appointment created by the debenture to “do any act, matter of [scil. “or”] thing and exercise any right, power or remedy that may be done or exercised by the Chargee in relation to the Secured Property”. The chargee’s powers in relation to the Secured Property are conferred mainly by clause 8. They include powers to manage, to lease, to sell, to grant options to purchase and to carry on business. Clause 9.2 says that a receiver is the agent of the chargor until the chargee otherwise requires or until the commencement of winding up. Thereafter a receiver is the agent of the chargee. Under clause 9.2(c), however, “… in exercising a right, power or remedy of the Chargee, the Receiver has the authority of both the Chargor and the Chargee”.

40 Sales of company property by the receivers in exercise of the power of sale conferred by the debenture are accordingly, for s.421(1)(d) purposes, “transactions that the controller enters into as the controller”. The s.421(1)(d) duty therefore extends to the keeping of “financial records” which correctly record and explain such sales.

41 In concept and as it relates to a director, the s.421(2) right corresponds with the s.290(1) right, although applicable to particular “financial records” brought into existence in conformity with s.421(1)(d) rather than the company’s “financial records” as such. The s.421(1)(d) records are confined to transactions undertaken by the receivers.

42 Section 421(2) would support, by means of s.1303 or more generally, an order that Mr Boulos and Mrs Boulos be given access to the whole (or some specified part) of the financial records created by the receivers under s.421(1)(d), assuming that there was evidence that such access was being denied.

The general law

43 It is unnecessary to go into any detailed analysis of the general law position. The right of a director to inspect company documents and, if necessary, to take copies of them has long been recognised as one of the rights the general law affords a director for the purpose of enabling him or her to perform the functions and discharge the duties of the office of director. The classic statement of this right appears in the judgment of Street CJ in Eq in Edman v Ross (1922) 22 SR (NSW) 351, where it is also said (at p.361):

“In the absence of clear proof to the contrary the court must assume that he will exercise it [i.e, the right] for the benefit of his company.”

44 The defendant receivers accept this general position but say that the general propositions apply in a modified way where the company is in receivership. In that respect, it is appropriate to refer to the decision in Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496 where (at pp.513-4) Owen J summarised as follows the general law position applying during receivership:

“1. The directors have a statutory right to inspect the accounting records of the company, although query whether the right is exerciseable against a third party properly in possession of the records and query also whether the court has a discretion to grant or refuse access.

2. The directors have a common law right to inspect books and records generally and the court has a residual discretion whether or not to order that access be given.

3. In a pre-receivership situation, the right of access is not conditioned on the directors demonstrating a ‘need to know’, although access may be refused where there is clear proof of a misuse of power, the onus of which lies on those asserting it.

4. The appointment of a receiver alters the position to the extent necessary to recognise the receiver’s pre-eminent position in realising assets for the benefit of the debenture holder.

5. A receiver is entitled to possession of the books and records of the company by virtue of the proprietary interest of the debenture holder and the receiver has no legal title to the documents.

6. The receiver’s entitlement to possession is purposive. It exists to enable him to fulfil the role for which he was appointed, namely, to administer the company and realise the assets so as to repay or reduce the debt owing to the debenture holder.

7. Because the entitlement to possession is purposive it is not necessarily exclusive. Third parties who would otherwise have a right of inspection may still be able to insist on access.

8. The subject of inquiry should be the role and function of the receiver rather than the identity of the residual duties which remain with the directors. The receiver would be justified in refusing to grant access to the documents where to do so would impede the receiver in the proper exercise of his functions or would impinge prejudicially upon the position of the debenture holder by threatening or imperilling the assets which are subject to the charge.”

45 The defendant receivers submit that this statement requires re-examination in the light of s.421(2). They point out that the specific statutory right conferred by that section is not framed in such a way as to make it clear that it co-exists with common law rights. There is no equivalent of the part of s.198F (s.198F(5)) saying that the provision granting a right of access to books does not limit any right of access that a person has apart from that provision.

46 I do not accept that s.421(2) embodies the sole right of directors to inspect documents when a company is in receivership. The absence from s.421 of any equivalent of s.198F(5) says nothing either way on the subject. There is also the point that the s.421(2) right is conferred upon creditors and members, in addition to directors, thus indicating that it is not a provision concerned solely with directors which might, for that reason, be thought to contain a codification of their rights. Equally importantly, the s.421(2) right extends only to the particular financial records created pursuant to s.421(1)(d) and it cannot be presumed that the advent of receivership (with consequent but temporary curtailment of directors’ functions) is to have the effect of depriving directors of access to other documents that may properly be required by them to perform their residual functions.

47 The other point to be mentioned here is that documents created or received by the receivers in the course of acting for the company (including as the agent of the company under the charge) must be regarded as owned by the company, even though they are, upon creation or receipt, in the possession of the receivers and will remain in their possession while they remain in office. Of course, not every document created by receivers during receivership will belong to the company. Excluded will be documents prepared by the receivers for their own benefit or protection and documents referable only to the receivers’ relationship with their appointor. But when the receivers act for the company in and about the conduct of its business or the sale of its property, the agency they exercise is not different in its essential nature from administration by a board of directors. I would adopt, in this respect, the following statement at pages 903-4 of the second edition of “Tolley’s Company Law” edited by S. Barc and N. Bowen:

Gomba Holdings UK Ltd v Minories Finance Ltd

48 The decision thus referred to as having been reported in the Financial Times of 11 November 1987 went on appeal to the Court of Appeal: Gomba Holdings Ltd v Minories Finance Ltd [1988] 1 WLR 1231. The decision at first instance was affirmed, as were the principles reflected in the textbook extract.

49 The directors’ general law right of access is modified while receivership is in progress. It is not diminished but is subject to the qualification that it may not be exercised in a way that would prejudice the due progress and completion of the receivership. This is mentioned at item 9 of the above extract from the judgment in Geneva Finance.

Assessment of the present case

50 Section 290, s.341(2) and general law rules are available to Mr Boulos and Mrs Boulos to assert claims of access to documents in the possession of Mr Brown and Mr Carter as the receivers and managers of the assets and undertaking of TARBS. The two statutory provisions are confined to “financial records” of the particular kinds mentioned. The general law rule applies to documents generally, being documents owned by the company. But the fact that a basis of claim exists is not of itself sufficient to cause the court to make an order enforcing it. There is a discretion. The overriding question is whether the order sought will, in the particular circumstances, be of such utility as to be warranted.

51 In the present context, that raises the threshold question whether, if the order Mr Boulos and Mrs Boulos seek were made, they would obtain access to anything they do not already have.

52 The documents furnished by Mr Carter and Mr Brown to Mr Boulos and Mrs Boulos under cover of Gilbert+Tobin’s letter of 21 June 2005 to Watson Mangioni have already been mentioned. More should be said about them. The first is a copy of an asset sale agreement dated 30 November 2004 between TARBS and six other companies also in receivership (as sellers) and PanAmSat Asia Pty Ltd (as buyer). The agreement runs to 33 pages. It is an agreement for the sale of the “Assets” described in schedule 1. That schedule lists various categories of assets, referring to the physical location of each category, identifying the seller of the category and ascribing a part of the purchase price to the category. Thus, for example, there is a category consisting of “Customer List Confidential Information” which is shown as located in New South Wales and being sold by “TARBS World” against which a particular sum of money appears in the column headed “Part of Purchase Price attributable to Assets”. This document makes perfectly clear what Mr Carter and Mr Brown, as receivers and managers, caused TARBS to sell to PanAmSat Asia Pty Ltd, the price obtained for each item sold and the detailed terms of sale.

53 The second document is an agreement also dated 30 November 2004 between TARBS (“First Assignor”), another company in receivership (“Second Assignor”) and PanAmSat Asia Pty Ltd (“Assignee”). So far as it concerns TARBS, this agreement effected the sale to PanAmSat Asia of the whole of TARBS right, title and interest in and to a number of trade marks and trade mark registrations, together with associated intellectual property rights and rights of action. The price was a fixed lump sum clearly specified. The trade marks were described by reference to registration number, class of goods or services and an actual representation or depiction of the work.

54 The third document consists of two pages headed “Account of Receipts and Payments”. It covers the period from 2 July 2004 to 1 January 2005. There are 72 separate entries or items each identified by date, the name of a person or entity, a transaction description and the relevant amount. Although the document is headed “Account of Receipts and Payments”, all the entries appear to relate to receipts. The 72 items are totalled and the total is then dissected into 13 categories of receipt.

55 As I have noted already, the letter of 21 June 2005 with which these three documents were forwarded said that the transaction with PanAmSat Asia Pty Ltd effected by the first two documents was “the only major transaction entered into by the receivers since their appointment”, although there had been “several minor asset sales to CityWest Centre Pty Limited” the documents in relation to which were offered. Questions on the “Account of Receipts and Payments” were invited.

56 The defendants have taken the plaintiffs’ application as they have found it. They could do nothing else. They therefore emphasise that the order sought is confined to particular documents relating to “all transactions that the defendants have entered into as receivers and managers of TARBS World TV Australia Pty Limited”. It is thus concerned only with documents relating to transactions actually completed. It does not extend to proposed or possible transactions considered but not actually undertaken. Furthermore, the particular relationship between the completed transactions and the documents sought is described by the words “such … as correctly record and explain”. If the receivers have a document that relates in some way to a completed transaction but does not “record” or “explain” that transaction, it is not within the class of documents to which access is sought.

57 There is no reason to doubt the receivers’ statement that the two documents effecting the sale to PanAmSat Asia Pty Ltd relate to “the only major transaction entered into by the receivers since their appointment”. The statement of receipts is consistent with this. The actual contract documents are, virtually by definition, the documents that “correctly record and explain” the transactions they effect. No other document could do so as fully and effectually as the comprehensive written contract itself. Mr Boulos and Mrs Boulos thus already have that to which they ask the court to secure access for them, so far as the PanAmSat Asia transaction is concerned.

58 Mr Boulos and Mrs Boulos also have a detailed statement of the receivers’ receipts and their source. They were invited to ask questions about that statement but did not do so. Documents relating to other transactions including minor asset sales were also offered but again the offer was not taken up.

59 In the circumstances, the plaintiffs’ application can be seen to have been pursued in circumstances where the results it seeks have already been either secured to the plaintiffs or offered to them but not accepted. The receivers took a constructive and co-operative attitude in the letter of 21 June 2005. The plaintiffs did not respond in kind. The originating process will be dismissed with costs.

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06/10/2005 - Superfluous words omitted - Paragraph(s) 31

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Citations

Boulos v Carter [2005] NSWSC 891

Most Recent Citation

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Statutory Material Cited

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CITATION:	Boulos v Carter; Re TARBS World TV Australia Pty Ltd [2005] NSWSC 891 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26/08/05
JUDGMENT DATE :	2 September 2005
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Originating process dismissed with costs

CATCHWORDS:	CORPORATIONS - controllers - directors' rights of access to company documents and financial records - company in receivership - sales of property by receivers - directors seek order compelling grant of access to documents which "record and explain" all "transactions that the defendants have entered into as receivers and managers"
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss.9, 198F, 290, 421, 1303
CASES CITED:	Edman v Ross (1922) 22 SR (NSW) 351 Fox v Gadsden Pty Ltd (2003) 46 ACSR 713 Gomba Holdings Ltd v Minories Finance Ltd [1988] 1 WLR 1231 Keyrate Pty Ltd v Hamarc Pty Ltd (2001) 38 ACSR 396 Metyor Inc v Queensland Electronic Switching Pty Ltd [2003] 1 QdR 186 Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496 Stewart v Normandy NFM Limited [2000] SASC 344
PARTIES:	Magdi Boulos - First Plaintiff Maria Regina Boulos - Second Plaintiff Phillip Patrick Carter and Martin Russell Brown in their capacity as receivers and managers of TARBS World TV Australia Pty Limited - First Defendants TARBS World TV Australia Pty Limited - Second Defendant
FILE NUMBER(S):	SC 3277/05
COUNSEL:	Mr J.T. Johnson - Plaintiffs Mr J. Stoljar - Defendants
SOLICITORS:	Watson Mangioni - Plaintiffs Gilbert+Tobin - Defendants