Noble Investments Pty Ltd v Southern Cross Exploration NL ACN 000 716 012

[2008] FCA 718

FEDERAL COURT OF AUSTRALIA

Noble Investments Pty Ltd v Southern Cross Exploration NL ACN 000 716 012
[2008] FCA 718

NOBLE INVESTMENTS PTY LTD, LEADENHALL AUSTRALIA LIMITED
ACN 007 997 248 AND CHI INVESTMENTS PTY LTD ACN 064 569 035 v SOUTHERN CROSS EXPLORATION NL ACN 000 716 012

SAD 10 OF 2007

FINN J
21 MAY 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 10 OF 2007

BETWEEN:

NOBLE INVESTMENTS PTY LTD
First Plaintiff

LEADENHALL AUSTRALIA LIMITED ACN 007 997 248
Second Plaintiff

CHI INVESTMENTS PTY LTD ACN 064 569 035
Third Plaintiff

AND: SOUTHERN CROSS EXPLORATION NL ACN 000 716 012
Defendant

JUDGE:	FINN J
DATE OF ORDER:	21 MAY 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The plaintiffs’ application for further or better access to documents referred to in Schedule 2 of my orders of 7 August 2007 be refused.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 10 OF 2007

BETWEEN:

NOBLE INVESTMENTS PTY LTD
First Plaintiff

LEADENHALL AUSTRALIA LIMITED ACN 007 997 248
Second Plaintiff

CHI INVESTMENTS PTY LTD ACN 064 569 035
Third Plaintiff

AND: SOUTHERN CROSS EXPLORATION NL ACN 000 716 012
Defendant

JUDGE:	FINN J
DATE:	21 MAY 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 7 August 2007 I ordered that, subject to a specified confidentiality regime, the defendant would provide access to documents in its possession that fell within the following classes of document:

   1.All registers, financial reports, financial records, extracts of minutes of directors meetings, minutes of shareholder meetings and any other documents evidencing all advances or loans made by the defendant to the Nadi Bay Beach Corporation Ltd (“NBBC”) for the period 1 July 2003 to 31 March 2007.

   2.All loan agreements, mortgages, debentures or any other books that record the terms of any loan or advance from the defendant to NBBC for the period 1 July 2003 to 31 March 2007.

   3.All correspondence and any other books settling out interest charged, any capital repayments made by NBBC to the defendant or any further capital advances made by the defendant to NBBC for the period 1 July 2003 to 31 March 2007.

   4.All registers, financial reports, financial records or any other record of information or document that discloses the defendant’s shareholding (both legally and beneficially held) in NBBC for the period 1 July 2003 to 31 March 2007.

2. Subsequently, the plaintiffs called into question both the adequacy of the respondent’s production of documents and the form (masked) of a significant number of the documents produced and in particular extracts from board minutes and from financial records.

3. I gave directions that an affidavit verifying the production be put on by the defendant.  Ms Evelyn Goh, a director of the defendant, has sworn such an affidavit in which she indicated that, to the best of her knowledge and belief, there are no documents encompassed by my order that have not been produced.  I accept that evidence.

4. The defendant, understandably, has complied literally and, subject to what I say below about form, strictly with the orders.  But the plaintiffs, in seeking access to the board minutes, now seek more than what my order envisages.  To quote from their proposed orders they seek:

   b.redacted copies of minutes of all directors meetings of the defendant relating to advances or loans made by the defendant to the Nadi Bay Beach Corporation Ltd (“NBBC”) for the period 1 July 2003 to 31 March 2007 disclosing those present at such meetings, all disclosures by directors, all declarations of conflicts of interest by directors recording whether the directors participated in the discussion and voting upon any resolution concerning NBBC and otherwise recording any documents or deliberations by the Board in relation to advances of loans to NBBC; and

   c.all board packages circulated to directors of the defendant ahead of all directors meetings of the defendant in so far as they contain reports or resolutions relating to advances or loans made by the defendant to NBBC for the period 1 July 2003 to 31 March 2007.

5. The defendant was under no obligation in consequence of my order to provide the above documents in the extended terms sought by the plaintiffs, and its failure to do so is not a proper subject of complaint.

6. Objection has been taken by the plaintiffs to the manner in which extracts from board minutes and of financial records have been produced.  Insofar as the minutes are concerned, the defendant produced typed up extracts from the company’s minutes and resolutions which evidence all advances or loans specified in my order.  These extracts have been certified by the chairman of the defendant.  The above course was taken according to Ms Goh because the minute book contains a very large number of records that do not fall within the categories specified in the order.

7. I have been supplied with unredacted copies of the minutes so supplied.  Having inspected both the minutes and those extracts produced, I am satisfied that the course so taken by the defendant was both appropriate and constituted a sufficient compliance in the circumstances, even if it did not in form strictly comply with the order.  I am of the same view in relation to the redacted copies of the financial records provided, which again I have compared with unredacted copies of the records from which the extracts were taken.

8. If the information so provided is relatively uninformative, as the plaintiffs suggest, that deficiency will not be ameliorated by having a wider access to the minutes or financial records.

9. In the circumstances, I refuse the plaintiffs’ application for further or better access to documents referred to in Schedule 2 of my orders of 7 August 2007.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:       21 May 2008

Counsel for the Plaintiffs:	Mr M Hoffmann QC
Solicitor for the Plaintiffs:	Cowell Clarke
Solicitor for the Defendant:	Gadens Lawyers

Date of Written Submissions:	16 April 2008
Date of Judgment:	21 May 2008