Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq)

In the matter of Endeavour Securities (Australia) Limited (in liq), the applicant, Ms Betty Mary Nicholson, sought to be released from any implied undertaking regarding the use of documents obtained in these proceedings for a collateral purpose, and to use those documents in another proceeding, namely NSD 939 of 2020. The documents were obtained in response to orders for production made in the winding up of Endeavour Securities (Australia) Limited and Linchpin Capital Group Ltd, which were the subject of litigation pursued by the Australian Securities and Investments Commission (ASIC). Ms Nicholson, an investor in the registered managed investment scheme of which Endeavour was the responsible entity, had secured ASIC's authorisation to seek the orders for production.

The primary legal issue before the Court was whether Ms Nicholson should be released from any implied undertaking with respect to the use of documents she had previously obtained in response to orders for production in these proceedings, and if she should be granted leave to use those documents in another proceeding. The Court had to consider whether there was good reason for relieving Ms Nicholson from the implied undertaking, given that the documents were acquired pursuant to summons for production in the company winding up.

The Court concluded that there was good reason to release Ms Nicholson from any implied undertaking with respect to the use of the documents obtained in these proceedings, and granted leave to use them in the class action proceeding (NSD 939 of 2020). The Court considered the privileged position of a liquidator who acts as an officer of the court in the winding up of companies and whether that sets them apart from private litigants pursuing their own interests. However, given the earlier conclusion that the discretion ought to be exercised in Ms Nicholson’s favour, there was no need to resolve this interesting question, particularly in the absence of any substantive submissions on the topic.

The Court made orders releasing Ms Nicholson from any implied undertaking with respect to the use of all documents produced in response to the orders for production issued in these proceedings, and granting leave to use them in the Federal Court of Australia proceedings number NSD 939 of 2020. There was no order as to costs.