FEDERAL COURT OF AUSTRALIA
Oswal v Burrup Holdings Limited [2011] FCA 609
Citation: Oswal v Burrup Holdings Limited [2011] FCA 609 Parties: PANKAJ OSWAL v BURRUP HOLDINGS LIMITED ACN 097 138 353 and BURRUP FERTILISERS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 095 441 151 File number: WAD 67 of 2011 Judge: BARKER J Date of judgment: 3 June 2011
Corrigendum: 21 July 2011 Catchwords: CORPORATIONS - rights of access to books and financial records by director - where director seeking inspection by his agents - whether granting access to documents would impede receiver in realising assets on behalf of the appointor - right of inspection at common or general law - Corporations Act 2001 (Cth) s 198F, s 290(2), s 421 and s 1303 Legislation: Corporations Act 2001 (Cth) s 9, s 198F, s 290, s 421, s 1303 Cases cited: Conway v Petronius Clothing Co Ltd [1978] 1 WLR 72; [1978] 1 All ER 185
Edman v Ross (1922) 22 SR (NSW) 351
Geneva Finance Ltd; Quigley (Receiver and Manager Appointed) v Cook (1992) 7 WAR 496
On Q Group Limited ACN 009 104 330 v McDougall [2007] VSC 184; (2007) 25 ACLC 910
Stern v Sekers [2010] NSWSC 59Date of hearing: 27 May 2011 Date of last submissions: 31 May 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 109 Counsel for the Applicant: Mr P Collinson SC and Ms E Dias Solicitor for the Applicant: Murcia Pestell Hillard Counsel for the First Respondent: Mr AC Willinge Solicitor for the First Respondent: Blake Dawson Counsel for the Second Respondent: Mr K de Kerloy Solicitor for the Second Respondent: Freehills FEDERAL COURT OF AUSTRALIA
Oswal v Burrup Holdings Limited [2011] FCA 609
CORRIGENDUM
In para 11 of the Reasons for Judgment, in the fourth sentence, remove the word “a” so it reads “there is no “need to know” principle”.
In para 13 of the Reasons for Judgment, the word “ensues” should read “ensures” so the amended sentence reads “terms or conditions that facilitate an orderly inspection that ensures”.
In para 63 of the Reasons for Judgment, in the fourth sentence, remove the word “in” so it reads “inspection of the documents falling generally into category [4(a)]”.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 21 July 2011
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 67 of 2011
BETWEEN: PANKAJ OSWAL
ApplicantAND: BURRUP HOLDINGS LIMITED ACN 097 138 353
First RespondentBURRUP FERTILISERS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 095 441 151
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
3 JUNE 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Subject to [4] of these orders, the applicant is authorised to inspect and take copies of the following documents or categories of documents listed in [3] of these orders, in person or by one or…
Keep reading for free
Create a free CaseChat account to read Oswal v Burrup Holdings Limited and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2011] FCA 609
- Decision Date
CaseChat Overview and Summary
The court considered both common law principles and statutory provisions under the Corporations Act 2001 (Cth). It concluded that Mr Oswal, as a director, had a right to inspect the company's financial records, but this right was not absolute. The court balanced this right against the potential interference with the receivers' duties in realising the company's assets. The court found that the inspection could proceed with certain conditions to mitigate any adverse effects on the receivers' work. These conditions included the requirement for Mr Oswal to provide a confidentiality undertaking and give prior written notice to the receivers' solicitors.
The court's reasoning was grounded in the need to balance the rights of directors to oversee company operations with the practicalities of asset realisation during a receivership. The court emphasised the importance of ensuring that the inspection did not unduly burden the receivers, who were tasked with maximising the value of the company's assets for the benefit of creditors. Consequently, the court authorised Mr Oswal to inspect the specified documents through his agents, subject to the outlined conditions.
The orders of the court authorised Mr Oswal to inspect and take copies of various documents, including financial records and expert reports, through authorised agents. The inspection was subject to a signed confidentiality undertaking and advance written notice. Additionally, Mr Oswal was required to provide an undertaking to cover the reasonable expenses incurred by the receivers in making the documents available for inspection. The court also granted the receivers the ability to apply to vary certain aspects of the inspection order. Finally, the court ordered the respondents to pay a portion of the applicant's costs of the proceeding.
Orders
Orders of the court
1. Subject to [4] of these orders, the applicant is authorised to inspect and take copies of the following documents or categories of documents listed in [3] of these orders, in person or by one or more of the following agents:
(a) the below named directors, partners, officers and employees (as the case may be) of BDO (Australia) Limited (ACN: 050 110 275) (‘BDO’):
i. Sharif Andrews;
ii. Michael Cassidy;
iii. Daniel Calcei;
iv. Adam Myers;
v. Ryan Dunne.
(b) the following directors, officers and employees (as the case may be) of Murcia Pestell Hillard Pty Ltd (A Firm) (ACN: 082 607 921) (“MPH”); namely:
i. Grant Pestell;
ii. Darren Greenham;
iii. Greg O’Shannessy;
iv. Monty Vallve;
(c) any other director or employee of BDO and MPH specifically nominated by the applicant at least 48 hours in advance in writing to the relevant respondent.
2. Inspection by any person pursuant to this order be subject to:
(a) the prior receipt by the solicitors of BFPL of a signed confidentiality undertaking by the aforementioned person in a form agreed by the parties or otherwise determined by the Court;
(b) prior written notice to the solicitors of BFPL at least two (2) full business days prior to the date upon which inspection is sought.
3. (a) Any and all documents of the second respondent created, or containing information created, on or after 17 December 2010, being the general ledger as well as any primary accounting records relating to any payments made by or on behalf of the first and second respondents that, following his inspection of the document in category [4(c)(iv)], the applicants requires to inspect.
(b) Any contracts involving purchases or expenditure greater than $50,000 entered into by the receivers by or on behalf of BFPL, on the basis that BFPL first identify the contracts answering the description there given in a letter to the applicant’s solicitors as soon as practicable and thereafter allow inspection of such of the documents (or provide copies thereof) as the applicant requires.
(c) The audited accounts of the second respondent from June 2006 to December 2010.
(d) The following documents evidencing the production profile of the second respondent’s ammonia production facility plant generated since 1 January 2010:
i. Print outs of the Digital Central System;
ii. Daily and Monthly Management Reports; and
iii. Daily and Monthly Operational Reports.
(e) The expert reports of those accountants, valuers, auditors and capital raising advisors who provided advice with respect to the proper valuation of BFPL for the purpose of a prospectus produced by BHL in about or in the period leading up to May 2008.
4. The applicant file and serve on the solicitors for BHL a written undertaking personally signed by him to meet the reasonable expenses of BFPL in making the documents available for inspection or providing copies thereof, which undertaking be secured by way of a payment of $50,000 into the trust account of the applicant’s solicitors, to be held by his solicitors pending completion of the inspection ordered and receipt of which sum the applicant’s solicitors shall notify by letter to the solicitors for BFPL as soon as practicable after receipt.
5. As to order 4, the second respondent has liberty to apply, by 4pm Wednesday 8 June 2011, to vary the order in so far as it authorises the applicant to inspect by his agent, BDO.
6. As to order 4, the second respondent has liberty to apply to vary the orders within 28 days, on 7 days notice.
7. The second respondent pay the applicant’s costs of the proceeding to be taxed if not agreed, to the extent of 50%, and there be a certificate for senior counsel.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.