Carey v Korda - [2010] WASC 362

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CAREY -v- MARK ANTHONY KORDA and DAVID JOHN WINTERBOTTOM In Their Capacity as Receivers and Managers of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (in liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (in liq) Westpoint Management Ltd (Receivers and Managers Appointed) (in liq) [2010] WASC 362

CORAM: LE MIERE J

HEARD: 11 NOVEMBER 2010

DELIVERED : 7 DECEMBER 2010

FILE NO/S: COR 147 of 2010

MATTER :Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed, Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (in liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (in liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (in liq)

BETWEEN: NORMAN PHILLIP CAREY
First Plaintiff
QUARTS NOMINEES PTY LTD
Second Plaintiff
AND
MARK ANTHONY KORDA and DAVID JOHN WINTERBOTTOM In Their Capacity as Receivers and Managers of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (in liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (in liq) Westpoint Management Ltd (Receivers and Managers Appointed) (in liq)
First Defendants
PERPETUAL NOMINEES LTD As Custodian of The ING Mortgage Pool for ING Funds Management Ltd as the Responsible Entity of The ING Mortgage Pool
Second Defendant

Catchwords:

Corporations - Receivers and managers - Inspection of financial records pursuant to s 290 and/or s 421(2) of the Corporations Act 2001 (Cth) - Standing - Whether records include records kept by the receivers in their personal capacity as receivers and managers - Documents to be produced - Degree of information required to correctly record and explain the transaction - Redaction of information - Legal professional privilege - Discretion - Whether application brought for an improper purpose - Whether an order for security should be made pursuant to s 421(2)

Legislation:

Corporations Act 2001 (Cth), s 9, s 290, s 421, s 471A

Result:

Documents are within the scope of s 421
Section 421 does not abrogate legal professional privilege

Category: A

Representation:

Counsel:

First Plaintiff                :     Mr A Metaxas
Second Plaintiff            :     Mr A Metaxas
First Defendants           :     Mr C L Zelestis QC & Mr M D Cuerden
Second Defendant         :     Mr L D Ayres

Solicitors:

First Plaintiff                :     Metaxas & Hager
Second Plaintiff            :     Metaxas & Hager
First Defendants           :     Mallesons Stephen Jaques
Second Defendant         :     Minter Ellison

Case(s) referred to in judgment(s):

Areva NC (Aust) Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carey v Korda

Details

AGLC: Carey v Korda [2010] WASC 362
Case: [2010] WASC 362
Decision Date: 7 DECEMBER 2010

CaseChat Overview and Summary

The case of Carey v Korda involved a dispute concerning the inspection of financial records held by receivers and managers of a corporation. The plaintiffs sought to inspect these records under sections 290 and 421(2) of the Corporations Act 2001 (Cth). The defendants, who were the receivers and managers, argued that the plaintiffs lacked standing to make such an application and that certain records should not be disclosed due to legal professional privilege. The court was tasked with determining whether the plaintiffs had the necessary standing, which records should be produced, the level of detail required in the records, the appropriateness of redactions, and whether the application was brought for an improper purpose.

The court examined the scope of the plaintiffs' standing to inspect the records, focusing on whether the records in question included those kept by the receivers in their personal capacity. It also assessed the extent of information required to accurately record and explain the transactions in question, and whether certain information could be redacted on the grounds of legal professional privilege. Additionally, the court considered whether the application had been brought for an improper purpose and whether an order for security should be made under section 421(2) of the Act.

The court concluded that the plaintiffs had standing to inspect the records, but that some records were not subject to the inspection order due to legal professional privilege. It ruled that the records must be sufficiently detailed to record and explain the transactions, but allowed for appropriate redactions. The court found that the application was not brought for an improper purpose and declined to make an order for security.

No orders for security were made. The plaintiffs were granted leave to inspect certain records, subject to the limitations outlined by the court.

Orders