Re New Cap Reinsurance Corporation Holdings Ltd - [2001] NSWSC 835

No judgment structure available for this case.

CITATION: New Cap Reinsurance Corporation Holdings Limited (ARBN 076 137 249) and the Corporations Law: [2001] NSWSC 835

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5128/99

HEARING DATE(S): 30/05/01, 31/05/01, 09/07/01

JUDGMENT DATE:
31 October 2001

PARTIES :

New Cap Reinsurance Corporation Holdings Limited (ARBN 076 137 249) and the Corporations Law
John Raymond Gibbons (Plaintiff)

JUDGMENT OF: Santow J

COUNSEL : B COLES, QC/ D R PRITCHARD (Plaintiff)
S EPSTEIN, SC (ASC P/L & 4 Ors (Mr Saville; Saville Group))
M A PEMBROKE, SC (Macquarie Equities/ Macquarie Equity Markets Ltd)
G M COLMAN (John Trowbridge Consultant P/L)
D G MARJORIBANKS (solicitor) (Phillips Fox - William Peck)
S ROWE (solicitor) (PWC (Elsa Payne/ Pat Murray)

SOLICITORS: Henry Davis York (Plaintiff)
Deacons (ASC P/L & 4 Ors (Mr Saville; Saville Group))
Mallesons Stephen Jaques (Macquarie Equities/ Macquarie Equity Markets Ltd)
Clayton Utz (John Trowbridge Consultant P/L)
Freehills (Phillips Fox - William Peck)
Blake Dawson Waldron (PWC (Elsa Payne/ Pat Murray)

CATCHWORDS: CORPORATIONS - Access sought by creditor of company in liquidation to documents produced to the liquidator for examinations for purposes of proceedings to be brought by that creditor against third parties associated with the company - Basis for such access as a matter of statutory power or discretion - relevant considerations. - WORDS AND PHRASES - Meaning of "books of the company" in case of a company in liquidation.

LEGISLATION CITED: Australian Securities and Investments Commission Act s12DA
Companies Code
Corporations Law s436(1); s446A; s477(6); s479(3); s486; s511; s542; s596A; s596B; s596E; s596F; s597; s597(14A); s995
Corporate Law Reform Act 1992
Supreme Court Rules Pt 36 r 12

CASES CITED: Australian Securities Commission v Marlborough Goldmines Ltd (1993) 11 ACLC 370
Bell Group NV v Woodings & Anor (1996) 14 ACLC 1,439
Re BPTC (in liq) (1993) 10 ACSR 756
BPTC Limited (No. 4) (1993) 11 ACLC 615
Douglas-Brown v Furzer (1994) 13 ACSR 184
Re Ezishop.net; Sims v Stone (2001) 38 ACSR 349
Flanders v Beatty & Anor (1995) 16 ACSR 324
Re GPI Leisure Corporation Ltd (in liq) (1994) 15 ACSR 282
Home Office v Harman [1983] 1 AC 280
New Zealand Steel (Australia) Pty Limited v Burton (1994) 13 ACSR 610
Nut Trading Co (Aust) Pty Limited v KKL (Kangaroo Line) Pty Ltd (1997) 25 ACSR 580
Sherlock & Vagrand Pty Ltd (in liq) v Permanent Trustee Australia Ltd (1996) 22 ACSR 16

DECISION: Access granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SANTOW J
No. 5128/99

In the matter of NEW CAP REINSURANCE CORPORATION HOLDINGS LIMITED (ARBN 076 137 249) and the Corporations Law
JOHN RAYMOND GIBBONS
Plaintiff

Judgment
31 October 2001
INTRODUCTION

1 Can and should a creditor (or someone claiming as such) of a company in liquidation be given access to the documents elicited from a liquidator’s compulsory examination, when sought by that creditor to assist it in proceedings against the Company or, as here, associated defendants? Is there any difference between documents specifically put to an examinee and marked for identification and other documents obtained prior to or in the course of the examination? The examinees or their companies oppose access and seek return of all original documents and destruction of all copies. The liquidator, for his part, is not opposed to making the documents available, considering as he does that their use by the creditor in pursuing the litigation may be in the interests of the liquidation.

2 Much of the argument turns on whether the post 1992 statutory amendments, expanding the role of creditors in such examinations, support such access. Invoked by the claimant creditor is the enhanced power of liquidators to order such examinations, which is said to carry as a corollary the availability of access to a third party creditor. That power is reinforced by the now well established judicial willingness to uphold “the opinions of liquidators who state they have proper grounds for making enquiries”, giving them “almost overwhelming weight”; Re Ezishop.net; Sims v Stone (2001) 38 ACSR 349 at 353 per Young CJ in Eq. The examinees and their companies contend that there is no such corollary, that access must or may be extended to a third party creditor pursuing its own litigation for its own ends; that this would be a bridge too far.

AGREED FACTS

3 The following narrative of facts is either agreed or not controverted for the purpose of the present proceedings and is based upon a draft prepared for the liquidator. In some cases, particularly paras 13 to 18 inclusive, a party may not concede that a particular paragraph is relevant. Matters are stated which derive from opinions formed by Mr Gibbons as liquidator. For the purposes of the proceedings before me, the parties did not contest that Mr Gibbons held those opinions. It is accepted that I shall treat these opinions as reasonably held, insofar as they are relevant to the issues before me, and for the purpose of these proceedings only.

NCRH
(1) John Raymond Gibbons is the Australian liquidator of NCRH having been appointed by an order of the Supreme Court of New South Wales made on 9 November 1999. On 21 July 1999, the Supreme Court of Bermuda made an order winding up NCRH and placing it into formal liquidation. Under that order, Mr John McKenna of the firm of Ernst & Young, Bermuda and Mr Gareth Hughes of the firm of Ernst & Young, London were appointed joint provisional liquidators.

(2) NCRH was incorporated in Bermuda on 30 August 1996 and was listed on the Australian Stock Exchange from 13 December 1996. NCRH was the holding company of the New Cap Re group of companies, namely, New Cap Reinsurance Corporation (Bermuda) Limited ("NCRB"), NC Re Capital Limited ("NC Re"), and New Cap Reinsurance Corporation Limited ("NCRA") (collectively "the Group"). The Group was established to write international reinsurance contracts. These contracts were ultimately written by NCRB and NCRA.

(4) On 12 January1999, NCRH issued US$50 million of unsecured Converting Notes ("the Converting Notes Issue"). Ingot Capital Investments Pty Limited, ASC Pty Limited, Australian Opportunities Investment Trust PLC, AOIT Limited and Eastern State Securities Limited ("the Saville interests") are either the legal or beneficial holders of some of these Converting Notes.

(5) From the date of Mr Gibbons’ appointment as the Australian provisional liquidator of NCRH and NCRB, Mr Gibbons carried out preliminary investigations into the affairs of NCRH. From Mr Gibbons' investigations, it appeared to him that NCRH had realisable assets of US$1,510,678 and net liabilities of US$80,522,309. Included in the liabilities as creditors are persons who invested in the Converting Notes Issue. The Group suffered material underwriting losses. Due to the close proximity in time between the completion of the Converting Note issue and Mr Gibbons’ appointment as Australian provisional liquidator (some 4 months), Mr Gibbons’ investigations concentrated on what he considers were the disclosures (or omissions) of directors, officers and advisers (specifically representatives on the due diligence committee) made in the prospectus relevant to the Group’s operations from the date of the Prospectus and during the period prior to the issue of the Converting Notes on 12 January1999. Mr Gibbons' preliminary investigations indicated, in his view, that the Prospectus may have failed to include information that was materially relevant to the Group's operations at and during the period prior to the issue of the Converting Notes. (I note here that the parties referred to in paragraphs 8(a) and (d) below submit that the prospectus was a document issued by NCRH as the issuer and signed by its directors and not a document issued by the due diligence committee, a matter disputed by the liquidator, but not necessary for me to resolve for present purposes).

(6) As part of Mr Gibbons’ investigations into the examinable affairs of NCRH, he initiated public examinations in these proceedings (5128 of 1999) pursuant to ss596A and 596B of the Corporations Law . These were conducted in May and June 2000 before Deputy Registrar Robinson of this Court in respect of William Peck, Paul Williams, Peter Aroney, Andrew Mutton, Patrick Murray, Elsa Payne, Ian McKenzie, Paul Donnelly, Tony Jackson, Geoff Atkins and David Minty. Mr Jackson was of Macquarie Equities Limited and Messrs Atkins and Minty were of John Trowbridge Consulting Pty Limited. Messrs Peck and Williams produced documents pursuant to their summonses for examination but the other examinees produced no documents pursuant to their summonses. In addition, orders for production were obtained pursuant to Pt 36 r 12 of the Supreme Court Rules against Macquarie Equity Capital Markets Limited, the lead manager and underwriter of the Converting Note issue, Macquarie Equities Limited, the broker to the Converting Note issue, the partners of PricewaterhouseCoopers, NCRH’s auditors, taxation advisers and had two of its partners as members of the due diligence committee. I interpolate here that, according to the evidence of Mr Gibbons which was not controverted at the hearing, PricewaterhouseCoopers advised the due diligence committee; I note that after that evidence closed, a submission has been made on behalf of PricewaterhouseCoopers that PricewaterhouseCoopers did not so advise. Orders for production were also so obtained against the partners of Phillips Fox, the legal advisers to NCRH on the Converting Note issue, John Trowbridge Consulting Pty Limited, the actuarial advisers to NCRH who prepared the independent actuary’s report to be included in the prospectus and General & Cologne Reinsurance Australasia Pty Limited, which provided stop loss cover to NCRA in 1999 which affected the group’s financial statements prior to the issue of the Prospectus.

(7) The form of the order under which the production of documents was originally sought prior to the examinations was varied by deleting reference to s597(9) of the Corporations Law and substituting reference to Pt 36 r 12 of the Rules of the Supreme Court, following discussions with the Registrar in Equity during which the view was expressed that s597(9) could not be used to require production of documents in advance of the date appointed for commencement of the examinations.

(a) Macquarie Equity Capital Markets Limited and Macquarie Equities Limited: on 17 February 2000, original documents were produced to the Court on behalf of Macquarie Equity Capital Markets Limited and Macquarie Equities Limited in response to the production orders. The produced documents totalled four large archive boxes of documents, containing some 16 lever arch folders, numerous loose documents and notebooks. By consent, Macquarie Equity Capital Markets Limited and Macquarie Equities Limited were granted leave to uplift the documents produced to the offices of their solicitors upon undertaking to grant access to the liquidator to inspect and copy the documents. The documents were inspected and copied on behalf of Mr Gibbons. Deacons, on behalf of Mr Gibbons, presently possesses copies of all of the documents produced by the Macquarie entities on behalf of Mr Gibbons.

(b) John Trowbridge Consulting Pty Limited: ten (10) boxes of original documents were produced to the Court by Trowbridge. By consent, the Plaintiff was granted leave to inspect the documents produced by Trowbridge and to uplift them from the Court. The documents were uplifted by Deacons on behalf of Mr Gibbons and have been returned to the Court. Mr Gibbons copied relevant documents and these copy documents are presently in the possession of Deacons.

Phillips Fox:

(i) documents relating to the professional indemnity cover held by Phillips Fox;

(ii) documents evidencing the partnership agreement of Phillips Fox; and

In relation to categories (i) and (ii), Deacons, on behalf of Mr Gibbons, entered into an agreement with Phillips Fox to hold originals and copies of these documents on certain terms. In relation to category (iii), Deacons, on behalf of Mr Gibbons, presently hold the documents.

(d) PricewaterhouseCoopers: approximately 56 lever arch folders in total of photocopied documents were produced to the Court by PricewaterhouseCoopers on 23 February 2000, 2 March 2000, 8 March 2000, 9 March 2000, 8 May 2000 and 1 June 2000 in satisfaction of the production orders. A further single document was produced pursuant to the production orders at the examination of Patrick Murray on 14 June 2000 (a further revised version of that single document was produced at Patrick Murray's examination on 15 June 2000). By consent, Mr Gibbons was granted leave to inspect the documents produced by PricewaterhouseCoopers and to uplift them from the Court. The copies were uplifted by the liquidator and are held at the offices of Ernst & Young on behalf of the liquidator.

(e) General & Cologne Re: documents were produced directly to Deacons. They remain in the possession of Deacons.

(f) William Peck: documents were produced to the Court by Mr Peck at the return of his Summons for Examination. These documents remain in the possession of Deacons.

Paul Williams:

On 25 May and 31 May 2000, Mr McKenzie was shown "MFI 1" — documents 101, 108, 124, 143A, 164, 172, 186A, 188, 189, 197, 257, 281, 283, 294A, 328, 334, 336, 354, 371, 373, 478, "MFI 2" — Converting Notes prospectus, "MFI 3" and "MFI 9" (relevant pages). On 31 May 2000 Mr Kent was shown "MFI 1" — documents 354, 371, 373, 478, "MFI 2" — Converting Notes prospectus and "MFI 3". On 1 June 2000 Mr Donnelly was shown "MFI 1" — documents 354, 371, 373, 478, "MFI 2" — Converting Note prospectus and "MFI 3". On 19 June 2000 Mr Jackson was shown "MFI 1" — document 373, "MFI 2" — Converting Note prospectus and "MFI 3". On 29 May 2000 Mr Minty was shown "MFI 1" — documents 377, 381, 394, 395, 397 and 423, "MFI 2" — Converting Notes prospectus, "MFI 7" — all of the documents in the relevant folder and "MFI 8" — the documents behinds tabs 12, 13, 14, 22, 27, 29, 31, 32 and 38. On 30 May 2000 Mr Atkins was shown "MFI 1" — documents 377, 381, 394, 395 and 397, "MFI 2" — Converting Notes prospectus and "MFI 8" — documents behind tabs 14, 27, 29 and 31. On 14 June 2000 and/or 15 June 2000 Mr Murray was shown "MFI 1" — documents 186A and document 172, "MFI 1 volume 2" — document 373, handwritten notes by Phillips Fox dated 17 December 1998, "MFI 2" — Converting Note prospectus, "MFI 10" — due diligence conduct memorandum, minutes of meeting of due diligence committee dated 17 December 1998, 12 January1999, 27 October 1998 and 22 October 1998, "MFI 27" — document titled "Pat Murray's diary notes", "MFI 26" — statutory audit opinion dated 28 May 1998 and forms 101 to 103. On 15 June 2000, Ms Payne was shown "MFI 1 volume 2" — ASX release dated 23 December 1998, "MFI 1" — document 352 minutes of meeting of due diligence committee dated 17 February 1999, "MFI 2" — Converting Note prospectus, "MFI 10" — due diligence conduct memorandum and minutes of due diligence committee meeting dated 12 January1999. Neither the Saville interests nor the liquidator has sought to identify any other documents shown to those examinees in the course of their examinations.

(10) The public examinations into the affairs of NCRH have concluded and the liquidators' investigations into the affairs of NCRH are largely complete. Evidence obtained from the examinees during the NCRH examinations included the circumstances surrounding the Converting Notes Issue.

(11) The liquidator claims that he is unlikely to make any distribution to unsecured creditors of NCRH (including the Saville interests) of greater than one cent in the dollar in the absence of successful recovery actions which he has identified. The Saville interests claim that they are likely to have combined losses of approximately $39,310,508 (being the cost of the investment made by the Saville interests).

NCRA
(12) Mr Gibbons was appointed Administrator of NCRA on 21 April 1999 by the Company under s436A(1) of the Corporations Law following a resolution of directors. On 16 September 1999, Mr Gibbons became the Liquidator of NCRA pursuant to s446A(1)(a) of the Corporations Law following a resolution of creditors.

(13) NCRA was incorporated in New South Wales on 11 October 1996 as a registered public company. At the date of Mr Gibbons’ appointment as Administrator, all of its issued capital of 98,229,024 shares of AUS$1 each was held by NC Re an Australian registered holding company wholly owned by NCRB which in turn is wholly owned by NCRH. NCRA was the primary writer of international reinsurance business in the Group operating from premises located at Level 37, The Gateway, No. 1 Macquarie Place, Sydney. NCRA was funded largely via a flow through of capital raised by NCRH both initially and following the Converting Notes issue by NCRH. NCRA held no bank debt and operated using its own capital and through the support of NCRB for some letter of credit backing.

(14) The Group was capitalised by a private placement of US$150 million during 1996 and a public offering of US$10 million in December 1996. The Converting Notes Issue raised a further $50 million and was completed in January1999. Trading for the first reporting year ended 31 December 1997 led to the Group reporting a loss of US$7.8 million. By the end of 1998, unaudited accounts prepared in 1999 indicated that losses had accumulated to US$147.5 million by the end of 1998. In early 1999, an inspector was appointed by the Bermudan Regulator to examine NCRH and NCRB ("the Bermudan companies"). The Group prepared a presentation to both the Australian and Bermudan regulators dated 14 April 1999 seeking a moratorium on further action but this was not obtained. Mr Gibbons was appointed Administrator of NC Re and NCRA ("the Australian companies") on 21 April 1999 and Mr John McKenna of Ernst & Young Bermuda was appointed Provisional Liquidator of the Bermudan companies on 22 April 1999.

(15) The liquidator maintains that losses suffered by the Group emanated largely from business sourced and/or written by NCRA. NCRA reported a profit of just over US$9 million for the first full calendar year of operation ending 31 December 1997 (compared to an overall group loss of US$7.8 million) but subsequently unaudited accounts prepared indicated that it had incurred an operating loss of US$61 million for the 1998 calendar year end.

(16) Following difficulties in confirming the 31 December 1998 figures, the directors of NCRA determined that the company was likely to become insolvent at some future time. Accordingly, the directors of NCRA resolved that Mr Gibbons should be appointed as Voluntary Administrator of NCRA on 21 April 1999. Pursuant to ss513B and 513C of the Corporations Law , the winding up of NCRA is taken to have begun or commenced on that day.

(17) Mr Gibbons has identified possible recovery actions in respect of NCRA and Mr Gibbons is still of the view that those possible recovery actions remain open. They include actions in connection with voidable transactions and insolvent trading. Mr Gibbons formed the view prior to the commencement of the examinations now conducted that it would be appropriate in the liquidation of NCRA that examinations be conducted of various parties connected with the company in order to supplement documentation already held, unravel the complex history of the company and its transactions, ascertain whether various causes of action can be initiated, and gather information about assets and liabilities.

(18) In July 1999, Mr Gibbons estimated a net deficiency in assets over liabilities for NCRA at approximately US$203 million. Subsequent to his appointment as Liquidator of NCRA, in September 2000, Mr Gibbons increased his estimate of the net deficiency in assets over liabilities for NCRA to approximately US$224 million. In terms of dividend distribution, he estimated that the best-case outcome could be as high as 50%, but that the more likely dividend range would be between 15% and 30%.

(19) As part of his investigations, Mr Gibbons initiated public examinations (in proceedings No. 2233 of 2000) into the examinable affairs of NCRA pursuant to ss596A and 596B of the Corporations Law . These examinations were held in May and June 2000 in respect of William Peck, Paul Williams, Peter Aroney, Tim Sparkes, Patrick Murray, Richard Deutsch, John Tuckfield and Geoff Barnum. No officers or employees of Macquarie Equity Capital Markets Limited or Macquarie Equities Limited were examined in those proceedings. Messrs Peck and Williams produced documents pursuant to each of their summons for examination but the other examinees did not have documents to produce pursuant to their summonses. Further public examinations into the affairs of NCRA were conducted in October and December 2000. Mr Gibbons’ evidence is that further public examinations may be necessary, including the possible continuation of the examination of Mr Williams, before the liquidator is able to decide on the initiation of recovery actions.

(20) In addition to the public examinations, orders for production were obtained in proceedings No. 2233 of 2000 pursuant to Pt 36 r 12 of the Supreme Court Rules against Macquarie Equity Capital Markets Limited, Macquarie Equities Limited, the partners of PricewaterhouseCoopers, the partners of Phillips Fox, John Trowbridge Consulting Pty Limited and General & Cologne Reinsurance Australasia Pty Limited.

(21) The NCRA examination summonses and the orders for production in proceedings No. 2233 of 2000 were issued subsequent to the summonses and orders in the NCRH public examinations in proceedings No. 5128 of 1999. It was agreed between the solicitors for the liquidator of NCRA and the relevant producing parties that documents produced by the producing parties pursuant to orders in proceedings No. 5128 of 1999 would also be production in satisfaction of the orders in proceedings No. 2233 of 2000.

(22) As a matter of practical convenience, the May and June 2000 examinations into the affairs of NCRA conducted in proceedings No. 2233 of 2000 were held concurrently with the public examinations in relation to the examinable affairs of NCRH in proceedings No. 5128 of 1999, which are the proceedings in which the present applications are brought.

Notice of Motion

Corporations Law

(a) to provide access to five investors, noteholders pursuant to a prospectus issued by NCRH (“the Saville interests”) of all documents (“the documents”) produced to the liquidator pursuant to orders for production or compulsory examination summonses against those referred to below; or

(b) return all such original documents to the Court and destroy all copies; or

(c) as in (b) above, but excluding any such documents put to examinees and marked for identification by the Court during the relevant examinations; or

Those referred to in (a) above are as follows:

“a) G M Atkins and D J Minty — John Trowbridge Consulting Pty Ltd;

b) G C Barnum — General and Cologne Reinsurance Australia Limited (“GCR”);

c) P Murray, E J Payne and R D Deutsch (the latter being examined only in relation to the affairs of NCRA);

d) P J Donnelly, I M McKenzie, W G Kent and A R Jackson — Macquarie Equities Limited and Macquarie Equity Capital Markets Limited;

e) W Peck and A Mutton — Phillips Fox.”

(24) Of the alternative directions propounded in the liquidator's Notice of Motion, the Saville interests contend that the Court should make the full access direction formulated in sub-paragraph 1(a) above. They oppose the relief sought in the Notices of Motion filed on behalf of certain named individuals and Macquarie Equity Capital Markets Limited and Macquarie Equities Limited, John Trowbridge Consulting Pty Limited and PricewaterhouseCoopers. Each of the latter seek destruction or return of all documents produced under Pt 36 r 12 Supreme Court Rules . The Saville interests claim that they wish to have access to documents produced in proceedings No. 5128 of 1999 in order to investigate whether NCRH, its officers and directors, and certain professional advisors retained by it, have acted in a manner which may give rise to any liability to the Saville interests. In particular, the Saville interests claim that they wish to investigate whether the issue of the Prospectus constituted misleading or deceptive conduct within the meaning of s995 of the Corporations Law and s12DA of the Australian Securities and Investments Commission Act .

(25) Whilst it is not his application that the access sought by the Saville interests should be granted, Mr Gibbons is not opposed to the application and made helpful submissions in that regard. In the event that the Court refuses access to the Saville interests, Mr Gibbons would still wish to retain the documents (pursuant to sub-paragraph 1(d) of his Notice of Motion) pending further investigations and a decision by Messrs McKenna and Hughes, and the creditors of NCRH, as to whether causes of action should be pursued by NCRH.

(26) Mr Gibbons however strongly resists the notices of motion seeking return of all documents and destruction of copies filed by Macquarie Equity Capital Markets Limited and Macquarie Equities Limited, by John Trowbridge Consulting Pty Limited and by PricewaterhouseCoopers. He does so in his capacity as liquidator of NCRA. As liquidator of NCRA he contends that he and his legal advisers require access to the produced documents and that if destruction or return of produced documents were ordered at this point in time, it would severely impede his investigations as liquidator of NCRA and would add to the costs of the liquidation.

(27) Macquarie Equity Capital Markets Limited and Macquarie Equities Limited, John Trowbridge Consulting Pty Limited and PricewaterhouseCoopers oppose the making of any order granting access to the Saville interests. They seek the orders formulated in sub-paragraphs 1(b) or failing that (c) of the Liquidator's Notice of Motion. Thus they primarily seek return of all original documents and return or destruction of all copy documents produced by them. Failing that they seek return and destruction of all such documents with the exception of those documents put to an examinee in the course of his or her examination and marked for identification.

(28) It is not disputed by the parties before the Court that some of the evidence in the examinations is likely to be relevant to any potential liability of one or more of the respondents, owed to NCRH or to the holders of the Converting Notes, for conduct relating to the issue of the Prospectus and the Converting Notes. That liability is denied by the relevant respondents.

THE ISSUES

Question 1: Power to grant access.

4 In circumstances where such access is opposed, is there any basis upon which a third party creditor or claimed creditor (“the Saville interests") of a company (NCRH and/or NCRA) may obtain access to documents obtained by a liquidator’s compulsory examination process?

Corporations Law

Supreme Court Rules

5 In particular, is such access capable of being granted pursuant to one or other of the following provisions of the Corporations Law or any of those provisions in combination:

(a) pursuant to an application by such a creditor pursuant to s477(6) of the Corporations Law whereby a creditor “may apply to the Court with respect to any exercise or proposed exercise of any of those powers” conferred by s477 including in particular to “do all such other things as are necessary for winding up of the affairs of the company and distributing its property”;

Corporations Law

“the liquidator or any … creditor, may apply to the court:

(a) to determine any question arising in the winding up of a company …”

(c) pursuant to an application by such a creditor under s486 of the Corporations Law whereby “the Court may make such order for inspection of the books of the company by creditors and contributories as the Court thinks just and any books in the possession of the company may be inspected by creditors or contributories accordingly, but not further or otherwise”;

Corporations Law

“subject to s597, the Court may at any time give one or more of the following:

….

(e) a direction about access to records of the examination …”.

Section 597(14A) needs to be read in context with its preceding sub-sections (13) to (14):

“(13) The Court may order the questions put to a person and the answers given by him or her at an examination to be recorded in writing and may require him or her to sign that written record.

(14) Subject to subsection (12A), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules, may be used in evidence in any legal proceedings against the person.

(14A) A written record made under subsection (13):

(a) is to be open for inspection, without fee, by:

(i) the person who applied for the examinations; or

(ii) an officer of the corporation; or

(iii) a creditor of the corporation; and

(b) is to be open for inspection by anyone else on paying the prescribed fee.”

The contention is that “written record” in sub-section (14A) includes the documents produced in aid of the examination thus entitling the Saville interests to access, as a creditor of the corporation (NCRH and NCRA). In addition, or alternatively without recourse to s597, a direction could be made under s596F(1)(e) (so it is contended) or the earlier mentioned provisions that access may be given to the Saville interests as a creditor of the relevant companies.

Question 2: Discretion to afford access

6 If the answer to question 1 is “yes”, should as a matter of discretion such access be given by the liquidator and if so, with or without an order or direction from the Court, or determination of a question, under such of the preceding provisions of the Corporations Law singly or in combination as are applicable?

Question 3: Destruction, Return or Retention of documents

7 If the answers to questions 1 and 2 are not both in the affirmative, should the documents be the subject of a direction under either s479(3) and/or s597F(1)(e) of the Corporations Law whereby

(a) copies are destroyed and originals returned, as the examinees and their companies seek; or instead

(i) pursuant to s542(2) of the Corporations Law requiring retention of “the books of the company and the liquidator that are relevant to the officers of the company at or subsequent to the commencement of the winding-up” (subject only to such directions as may be given under s542(3) or (4));

(ii) in aid of his continuing statutory rights of examination pursuant to ss596A and 596B; and/or

BPTC Limited (No. 4)

RESOLUTION OF LEGAL ISSUES

Questions 1 and 2 Power to grant access and the exercise of any discretion

8 Questions 1 and 2 separate the power to grant access from how that power should be exercised. It is however convenient to deal with the two questions together, while maintaining that important distinction.

9 Whether the matter be considered as a question of power or the manner in which it should be exercised, there is a fundamental principle common to both issues. It is this. The liquidator’s paramount duty is to bring about the beneficial winding-up of the company, primarily in the interests of its creditors, though subject to that overriding requirement, also in the interests of contributories.

10 It is from that basal principle, that one tests the existence and exercise of the claimed power of the liquidator; this is so, whether it be to conduct examinations about a corporations’ examinable affairs as an “eligible applicant” pursuant to the post-1993 expanded powers of examination, or, subject to ensuring that the statutory powers extend thus far, to making available the product of that examination to third parties claiming a legitimate interest. That in the present context is the documentation produced by the examinees or the corporations they represent for the purpose of that examination. In particular, an assistance thus voluntarily afforded by a liquidator to an individual creditor of the company in liquidation must satisfy the overriding requirement that it assist the liquidator in the beneficial winding-up,. That would be so, if such assistance offers sufficient prospect of increasing or protecting the assets available in the winding-up.

11 But is that enough to found the power and guide its exercise? The examinees and their companies contend that, absent statutory authorisation, express or implied, documents obtained for one purpose, namely investigation of the assets, actual and potential, and of the financial position of the Company being wound up, should not be employed for another purpose, here to assist an individual creditor, rather than creditors as a whole. Thus if that third party access offers merely speculative or incidental benefit to the winding-up, then such use of documents obtained by the Court’s compulsory processes would be an abuse of the power to obtain the documents or its use for an extraneous purpose. To do so it is said, is to offend the prohibition on the collateral use of court documents derived from the implied undertaking not to do so; compare Home Office v Harman [1983] 1 AC 280.

12 Thus it may be said by those resisting access that it is not to the point to argue that since the statutory changes coming into force in 1993, such examinations as produce these documents are virtually obtainable on the liquidator’s say so. Even accepting that reflects the trend of judicial decision, it does not follow that the compelled documentary product of that more readily obtained process should be made available to an individual creditor, if to promote a separate action not just against the company in liquidation, but also other persons associated with the Company in relation to the subject matter of those proceedings. However, that is to focus solely on the individual creditor’s purpose. Even if that purpose go no further than that creditor’s individual self-interest, it may still be the case that granting access offers sufficient prospect from the viewpoint of creditors generally, of augmenting or protecting the assets likely to be available on winding-up. That, as I later conclude, is the case, and it is sufficient to negate there being any abuse of process, or a fatal extraneous purpose.

13 I now turn to the other basis upon which that access may be founded and justified. It is that such assistance fulfils a wider statutory purpose of examinations generally. That purpose is articulated by the Full Court of the Supreme Court of Western Australia in Douglas-Brown v Furzer (1994) 13 ACSR 184. There Malcolm CJ at 191 characterises in these terms the intention of the legislation so far as examinations are concerned and the now expanded associated provisions for making available the product of that examination in s597(14) and (14A):

“taking all the provisions together, the intention of the legislation, appears to be that such examination should now be carried out in such a way which will facilitate not only investigations but also the prosecution of civil or criminal proceedings, whether contemplated or already commenced, including civil proceedings by individual creditors. The intention is that the persons who are eligible applicants and any other relevant persons are given a forensic advantage which the court can prevent being abused by its control over the conduct of the examination.” [emphasis added]

14 The reason why I have emphasised these words “any other relevant persons” is because they show that although Malcolm CJ was in error in earlier concluding (at 190) “that a creditor is now an eligible applicant” following the amendments introduced by the Corporate Law Reform Act 1992, the legislative intention found by the Court does not depend upon that relatively minor misreading of the amendments thus effected. That legislative intention to facilitate prosecution of, inter alia, civil proceedings, is thus conferred not only on “eligible applicants” as defined but on other relevant persons. These I consider include, importantly, creditors bringing, or considering whether to bring, proceeding against both the company in liquidation (whose prosecution a winding-up may interrupt) and also those associated with the Company in relation to the subject matter of the proceedings, such as actual or potential co-defendants, as here. Obtaining the fruits of the liquidator’s own investigation for that purpose is thus not an illegitimate or collateral purpose but a proper one.

15 I should here emphasise two things. First, such a creditor’s action against a third party, who is not the company in liquidation though likely to be associated in the relevant events, must in some way have the potential, at the least, either to assist the liquidation (in the sense of the beneficial winding-up for creditors as a whole), or serve the wider statutory purpose of investigating and potentially prosecuting (civilly or criminally) those who have contributed to the circumstances that have led to that corporate collapse. One or other of the foregoing suffices to legitimate the purpose of a creditor seeking access to the product of a compulsory examination. Both in combination certainly would.

16 Second, the importance of the creditor’s role in the examination context has been advanced in various ways by the amendments introduced to the Corporations Law in 1992 and coming into force in 1993; see para 28 below.

Summing up

17 If access to the documentation produced in examinations already held is not precluded by statute, then granting access to a third party creditor may be justified on either one of two bases of justification and certainly by both in combination:

(a) it offers sufficient prospect of assisting the beneficial winding-up by increasing or protecting or conserving the assets available in the winding-up; or

18 In concluding as I do that the second justification is available, I observe that Whitlam J in Re GPI Leisure Corporation Ltd (in liq) (1994) 15 ACSR 282 at 291 expressly disagreed “with any suggestion that the examination provisions of the Law may be utilised by a liquidator solely to assist a creditor who is pursuing his own interests unconnected with the winding-up”. But neither of the two tests I have delineated for permitting access would necessarily conflict with that caveat.

19 Thus insofar as Whitlam J’s decision concerned whether the liquidator ought to carry out an examination, as distinct from making its product available and where that purpose of the examination was not the beneficial winding-up of the company but merely to assist third party creditors, such decision is distinguishable. They are distinguishable, because the situation before me is concerned not with the propriety of the liquidator seeking to carry out a future examination unrelated to the winding-up. Rather the examinations have already taken place and are close to being completed, without any question being raised as to the propriety of the liquidator in carrying out such examinations. Moreover the creditor’s purposes do have some connection with the winding-up. What is at issue here is whether the product of those examinations already carried out should be made available to a creditor. That involves no expenditure of effort or cost on the liquidator’s part such as might distract the liquidator from his primary task of the beneficial winding-up of the company. Nor does it involve the expenditure of resources to an end extraneous to that purpose. I would agree that if the second justification relied upon, namely to facilitate the prosecution of civil or criminal proceedings, were to conflict with the liquidator’s central purpose of the beneficial winding-up of the company, then the liquidator may well not embark on that course, even if empowered to do so by the statute, or indeed may be directed by the Court not to do so.

20 There is another reason for my following the Full Court of Western Australia. Were its decision in conflict with that of a single judge of the Federal Court, unless I were of the view that the decision of the Full Court of the Supreme Court of Western Australia in Douglas-Brown v Furzer was plainly wrong, and I am not of that view notwithstanding the earlier erroneous reference to “eligible applicant” including a creditor, then as a single judge I should follow that decision of an intermediate court of appeal. That is, in preference to the decision of the single judge in Re GPI Leisure Corporation Ltd (in liq) (supra). That has been settled by the High Court decision in Australian Securities Commission v Marlborough Goldmines Ltd (1993) 11 ACLC 370 at 373. However, as I have said, the decision in Re GPI Leisure Corporation Ltd (in liq) is distinguishable and may be justified on its own facts.

21 I turn now to the circumstances before me, to ascertain whether they satisfy the first basis of justification. That is, whether within that overriding purpose of the beneficial winding-up, it could be said that making available the liquidator’s copies of the documentation produced to a third party creditor suing persons associated with the Company has sufficient potential to increase or protect the assets available in the winding-up for the benefit not only of the particular creditor concerned, but all creditors.

22 The question then is whether assistance afforded by the liquidator to the Saville interests has that sufficient potential to increase or protect the assets available in the winding-up for the benefit of all creditors. Mr Gibbons the liquidator in his affidavit of 7 May 2001, para 24(d), put the position in these terms:

“24. Whilst it is not my application that the access requested by the Saville interests should be granted, I’m not opposed to the application for the following reasons:

….

(d) It may be in the interests of the estate generally. Any recovery made by the Saville interests from the persons in Schedule B of their Notice of Motion should be of benefit to those creditors of NCRH other than the Saville interests, because the Saville interests will no longer be entitled to prove in the estate to the extent of their recovery. Therefore, there may be a larger distribution made from the estate to the creditors of NCRH than the Saville interests.”

23 It will be apparent that the liquidator does not say in categorical terms that such recovery will be in the interests of the estate generally. That is understandable, as firstly it is possible that the Saville interests might not pursue their litigation against the relevant other parties but rather press their claim only against NCRH and possibly NCRA. However, that necessarily must depend upon the strength of the potential claims against the third parties involved and for that no doubt the Saville interests will wish to see what the documentation reveals. Likewise, in the event that a claim were brought against the third parties concerned, they may seek contribution from NCRH and/or NCRA to the extent that contribution was available. That may lead to complex questions of whether such contribution would be ordered, if the Saville interests were successful and the results of that may not be reliably predicted at this early stage.

24 But I do not consider that the liquidator has to do more than establish that making available the documents as requested offers sufficient potential or prospect of increasing or protecting the assets, at, as I have said, virtually no cost to the liquidator. The position in that sense is analogous to the liquidator expending money on an examination where at the outset the liquidator may have no real idea whether or not the examination will yield any worthwhile result for the creditors. Nonetheless, such an examination may indicate, though that at the outset is only a matter of potential, whether or not a particular line of enquiry is or is not worth pursuing and in that sense offer the prospect of benefit to creditors, even if it be only the saving of costs. In my judgment, the situation is not dissimilar here. There is a reasonable prospect of benefit to creditors, though no certainty, which I consider sufficient. In particular that prospect suffices to justify the liquidator, for no further expenditure, making available his copies of the documentation, having already expended the costs associated with the public examination, the latter being for an unimpeachable purpose. The present case is even stronger than where the liquidator is asked to launch or expand a public examination. There his purpose in doing so may still be attacked, though the scope now for doing so is relatively narrow; see Sherlock & Vagrand Pty Ltd (in liq) v Permanent Trustee Australia Ltd (1996) 22 ACSR 16. Moreover it will cost the liquidator money to do so

25 In a case quite close to the present circumstances, Bell Group NV v Woodings & Anor (1996) 14 ACLC 1,439, Master Bredmeyer was content to permit documents to be retained and read by a creditor for the purpose of pursuing action against a firm of accountants. He concludes (at 1142)

“That purpose is, I think, greatly for the benefit of the creditors of the applicant and indirectly for the benefit of the creditors of the two major Bell companies. If, for example, the applicant succeeded in its action against the auditors, recovering say the $394 million and the $69 million it is owed by the two major Bell companies, it would cease to the a creditor of the two major Bell companies, thus benefiting the other creditors of those companies.”

26 It will be apparent that the benefit in question could be indirect or prospective as indeed may be the case here, so long as it is not so remote as to be beyond the reasonable bounds of possibility.

27 It is necessary that I now turn to the legislative scheme relating to compulsory examinations, as it was extended significantly by the Corporate Law Reform Act 1992, coming into force in 1993. I do so because it underpins the case for access. That extension reflects a trend which follows earlier important changes made to the examination provisions by the Companies Code introduced in 1991. The Code provided that (other than in special circumstances) examinations were to be held in public rather than in private, thereby facilitating disclosure to directors. That earlier history is described in New Zealand Steel (Australia) Pty Limited v Burton (1994) 13 ACSR 610 where, at 614 – 6, Hayne J discusses the history of the procedures for compulsory examinations and the extent to which those procedures have been available to creditors as well as to liquidators.

28 Subsequent amendments to the Corporations Law coming into effect in 1993 took the enlargement further, doing so in the following ways so far as concerns the involvement of creditors in compulsory examinations:

(a) creditors must now be given written notice that the examination is to take place (s596E);

(b) creditors now have a right to inspect any “written record of an examination” without fee (s597(14A);

(c) courts now have expanded discretions concerning procedure under s596F, though expressed to be “subject to s597”;

(d) creditors may, if the Court so directs, take part in such examination, being able to be represented for such purpose; see s596F discussed below.

(e) there is now a bifurcated scheme for examinations divided into mandatory examinations under s596A where an “eligible applicant” is entitled as of right to summon “an examinable officer” of the corporation about its examinable affairs whilst s596B permits a discretionary examination, again about a corporation’s “examinable affairs”. This is at the behest of an “eligible applicant”, but this time in relation to the examination of a wider class of person who “(i) has taken part or been concerned in the examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or (ii) may be able to give information about examinable affairs of the corporation.”;

(f) while the class of “eligible applicant” was not substantially expanded from its earlier expansion in 1991, it is extended to include an administrator of the corporation, though not a creditor;

Douglas-Brown v Furzer

29 But what, if at all, is the effect of s596F on these conclusions? Can and should a direction be given either denying that access, as the examinees and their companies seek, or permitting that access, as the Saville interests seek and the liquidator would not oppose? Does s596F or the earlier quoted provisions for direction permit such a direction and, if so, to what effect should such direction be? In the Explanatory Memorandum to the Corporate Law Reform Bill 1992, appears the following statements:

“1314 Nor is there any express provision that creditors have the right to take part in an examination and be represented for that purpose. The current definition of a “prescribed person” in the existing sub-section 597(1) does not specifically include creditors.

1315 Proposed s596F addresses these deficiencies.”

30 Section 596F now provides for the directions that the court may give about examination. Clearly the assumption of the Explanatory Memorandum is that the power of direction while no doubt viewed also as a safeguard against abuse, is able to serve (with s597(5A) below) the purpose of giving creditors the capacity to take part in an examination and be represented for that purpose subject to the direction of the Court so providing. Moreover s596F(1)(e) contemplates, “a direction about access to records of the examination”. That is expressed to be subject to s597 where appears the express right of access to a creditor of the corporation to “a written record” made of an examination under the earlier subsection (13).

31 However, the Explanatory Memorandum at para 1319 goes on to state,

“the Harmer Report’s recommendation that creditors have the right to take part in an examination and be represented for that purpose is implemented by proposed subsection 597(5A). In addition, proposed subsection 597(5A) provides that an ‘eligible applicant’ (to be defined in s9) and the ASC may take part in an examination.”

32 That provision was not in the end included in the legislation as passed. However, I am satisfied that the power of direction in s596F is wide enough to permit a creditor so to be represented, there being nothing to preclude that in s597. The more limited express provision in s597(5A) is not to be construed expressio unius so as by implication to preclude that result.

33 Thus a fair way of putting the matter is to conclude that the trend of expansion of the examination provisions starting in 1991 and expanded in 1993 comports with a legislative scheme that allows creditors access not only to the transcript but also to the documents produced pursuant to the examination if necessary with a Court direction to ensure no abuse. It would be incongruous that creditors are permitted to attend such examinations, in public unless ordered otherwise, able to hear the questions and answers put including any reference to documents produced, later be entitled as of right to a copy of the written record of the examination, yet be denied copies of the produced documents after the examination. Such access, if allowed, is not ordinarily antithetical to the legislative purpose or thereby an abuse of that process. The contrary is borne out by the legislative scheme and the prior legislative history of expansion of the examination process.

34 All of this takes place moreover against a clear trend of judicial decision. One which has interpreted ss596A and 596B in such a way that, as Young CJ in Eq put it in Re Ezishop.Net Limited, “single judges are to follow the traditional line that the opinions of liquidators who state they have proper grounds for making the enquiries are to be given almost overwhelming weight when deciding whether an examination should be ordered”, citing the Court of Appeal in Sherlock v Permanent Trustee Australia Limited (supra).

35 Moreover, through a line of decisions exemplified by New Zealand Steel (Australia) Pty Limited v Burton (supra) it is equally well-established that the mere fact that an applicant for examination may, by means of their examination, obtain admissions or materials that are available to use in evidence in current proceedings, does not render that process abusive, vexatious or oppressive.

36 This trend, at the very least, could be expected to give a very wide sense to what may be conceived to be “for the benefit of creditors” or a “beneficial winding-up”. It is important to understand that earlier cases, on the pre-1993 legislation so coming at an earlier stage in that legislative evolution, would if followed post 1993 represent an unduly wide reading of the notion of abuse of process. Thus for example, Re BPTC (in liq) (1993) 10 ACSR 756 at 766 where Bryson J observes:

“Considerable sensitivity must be maintained to parties’ rights to privilege against production, to confidentiality and to limited circulation and use of information compulsorily revealed to opponents in litigation.”

37 More recently, the Court of Appeal in Victoria in Flanders v Beatty & Anor (1995) 16 ACSR 324 affirmed, following the earlier cited judgment in Douglas-Brown v Furzer, that benefit to the company or the creditors may not even be a necessary requirement, at least where the second basis of justification for access is available. Thus in the Flanders (supra) Ormiston JA at 335, in the context of an examination conducted by an administrator, states:

“Now the powers given under ss596A to 597B are clearly so wide and so easily exercised by “eligible applicants” (cf s596A) that the purposes to be served by examinations ought not be limited by reference to the benefit of the company or its creditors or contributories. The objects to be served by the issue of an examination summons in the making of orders for examination should be discerned only by reference to the statutory provisions which invest those powers. If those powers are being used for oppressive purposes or to serve ends entirely outside the scope of the sections, such as to gather evidence for libel proceedings, then the court will intervene to prevent the examination.”

38 In that case, it was held that an examination intended to assist the enforcement of the rights or claims of relatively few persons affected by an arrangement would nevertheless be proper and appropriate. Moreover, it could not be said, after Douglas-Brown v Furzer, that an examination having the purpose of facilitating not only investigations but also the prosecution of civil proceedings by a third party creditor against someone other than the company was an abuse of process.

39 It is against that background that I now approach the specific provisions of the Corporations Law. I am satisfied that there are a number of sources of power available to the liquidator to do that which he does not oppose doing, namely to make available the documents which were utilised in the examination either by directly being marked for identification or as otherwise being produced for the examination. I see no sensible distinction being drawn between the two categories of document. The documents not marked for identification were still capable of informing the examination and influencing the questions asked. Indeed the liquidator’s submissions appear to favour that access. Thus I would include in any access all documents produced, in the absence of any evidence from those opposing access that a document was produced which was entirely extraneous to any possible purpose of the original examination.

40 I start with s597(14A) of the Corporations Act. The question which that poses is whether, “a written record made under subsection (13)” carries with it the strict implication that it only comprehends the actual signed transcript and not the records so produced. Those opposed to the liquidator making available the documents point to subsection (13). It provides for the questions and answers “to be recorded in writing” and contends the expression “written record” in subsection (14) is synonymous. That is said to be reinforced by the contemplation in subsection (13) that the court “may require” the person examined “to sign that written record”. This is said to reinforce the notion that the “written record” in subsection (14) could not encompass documents produced for the examination. As a fall-back submission, it is contended that the “written record” could at the least not comprehend documents that were not specifically marked for identification, even though they must have informed the examiner and therefore the examination process.

41 Finally, the expression “written record” in these provisions of s597 is sought to be contrasted with the wider expression “records of the examination” in s596F of the immediately preceding provision, which is itself said to be “subject to s597”.

42 I would agree with that submission so far as it goes to s597(14A). That is to say, I would agree that the “written record” there referred to does not encompass documents produced that are not incorporated into the transcript. It would be straining language unduly to find in the expression “written record” that the court may require to be signed, a different meaning and a wider one to encompass such documents in subsection (14A).

43 But when one turns to s596F, I consider that there is nothing in s597, to which it is subject, which precludes the court making, in terms of sub-paragraph (e) thereof, “a direction about access to records of the examination”. Such a direction would be one which would permit access to all of the documents produced in aid of the examination, whether marked for identification or not and whether specifically put to the examinee or not. It would be entirely artificial to draw a distinction between documents on the basis of some such criterion as that. I consider that the wider expression “records of the examination” was chosen deliberately to provide a broad discretion in the Court to make a direction permitting access either to be granted or restricted, though so far as restriction is concerned subject to s597 with its mandatory requirement for making “a written record” open for inspection by anyone on paying the prescribed fee. That interpretation gives sensible meaning to the opening words “Subject to section 597” in s596F.

44 I would not as a matter of discretion be minded to make any direction restricting access. Most certainly, I do not consider that s596F(1)(e) precludes my making a direction permitting access to all of the records made available in aid of the examination. On the contrary, I am satisfied that I should so direct access. I do so on either of the two earlier bases or justifications that guide the Court’s discretion.

45 Indeed, because the Court is permitted to make an order restricting access, pursuant to that same supervisory power in s596F(1)(e), that removes any conceivable objection to an interpretation that a direction may also be given permitting access. It ensures that in a proper case, the Court’s direction may impose safeguards in relation to that access to ensure the examination provisions of the Corporations Law do not lead to oppression of a party whose documents might be made available in circumstances where this would be entirely unjust. The example given by Ormiston J in Flanders of seeking documentation for a totally unrelated libel action would be such a case. However, beyond such an extreme case or an analogous one, there does not seem any proper basis for failing to give a direction about access. This is more particularly to persons who are seeking to pursue actions which have the potential to benefit the creditors as a whole in relation to protecting or extending or conserving the assets available for distribution, should the third party proceedings be successful. Moreover such access facilitates civil action which, I infer, may bear on the circumstances of the company that contributed to its winding-up and thus vindicate the public interest in their ascertainment.

46 In those circumstances, I do not need to consider whether there are other available powers. However, I should briefly note the contention by the liquidator that the produced and copied documents are to be taken to be “books of the company” for the purposes of an order for inspection under s486 of the Corporations Law (formerly s387 of the Companies Code). There, the power conferred by s486 is unfettered save for the requirement that an order in exercise of the power should be as the court “thinks just”. By the same reasoning, I do not consider that any constraining order should be made by the Court in relation to that access. I am assuming here that it is correct that the produced documents have become “books of the company” and thus that the title to and property in the actual documents, insofar as copies are concerned, have become the property of NCRH/NCRA. They thus remain vested in Mr Gibbons as liquidator, amenable to such an order if made.

47 There is authority suggesting to the contrary in Einstein J in Nut Trading Co (Aust) Pty Limited v KKL (Kangaroo Line) Pty Ltd (1997) 25 ACSR 580 at 604. There Einstein J took a narrower view of “books of the company” in relation to the predecessor section 387 though on distinguishable facts where the liquidator was not in contention about copies of documents produced. He concluded that these books were “books in the possession of the company at the commencement of the winding-up, and not books created or obtained during the winding-up”. His reasoning appears in the following passage:

“The matter does not appear to have arisen for decision to date. In this respect I note that:

(a) it appears that in no reported case on s387 has the court been asked to order inspection of documents created by the liquidator.

(b) the Code draws a clear distinction between:

(i) “Books of the company” — see, for example: s77(2A) which empowers a liquidator 377 to inspect “books” of the company” — this is plainly to enable the liquidator to obtain such information about the affairs of the company as is necessary to enable him to wind up the company. Section 265B which uses the language, “books of the company” to describe the books in respect of which a member may apply to the court to inspect while the company is functioning.

Section 425 which expressly distinguishes between books, “of the company” and, “of the liquidator that are relevant to the affairs of the company at or subsequent to the commencement of the winding up of the company (emphasis added)

(ii) books to be kept by the liquidator: see ss416 and 425

(c) the fact that s416 addresses the inspection of books kept by the liquidator suggests that s416 is intended to be exhaustive of that topic; if s387 were wide enough to entitle a creditor or contributory to inspect the books maintained or created by the liquidator then there would be no need for s146.”

48 Given that issue is not necessary for resolution in the present case, I refrain from expressing a concluded view. I would however incline to a wider interpretation of the expression “books of the company” under the now s486 to embrace copies made in the present circumstances, though after the liquidation commenced. There may indeed be a distinction to be drawn between books that the liquidator keeps for his own records and books that are thereby acquired by way of copying from the process of examinations, without relying on an arbitrary cut-off point such as when the liquidation commenced. Thus a liquidator may keep his own books for recording for example, what the liquidator has done in the way of payments and receipts. Those indeed may not be “books of the company”. But the liquidator may also, by copying or otherwise, augment what are the books of the company, though liquidation has ensued. Those can be “books of the company”.

OVERALL CONCLUSIONS AND ORDERS

49 I am satisfied on either basis of justification that the access sought to all documents produced for the relevant examinations can and should be granted to the Saville interests. I am content to make directions in that behalf, thereafter permitting the liquidator to retain the relevant documents for its purposes. I would do so pursuant to s596F and “all other powers thereunto enabling”. It follows that Question 3 does not arise. In particular I would not make the orders sought by those opposing access under Question 3. Costs ordinarily should follow the event, though I will hear, if desired, any submissions from the parties. I direct that draft orders giving effect to this judgment be provided within fourteen days.

**********

Last Modified: 11/07/2001

Actions

Download as PDF Download as Word Document

Citations

Re New Cap Reinsurance Corporation Holdings Ltd [2001] NSWSC 835

Most Recent Citation

Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1021

Cases Citing This Decision

29

Walton & Anor v ACN 004 410 833 Limited (Formerly Arrium Limited) (In Liquidation) & Ors [2021] HCATrans 154

ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton [2020] NSWCA 157

Meteyard v Love [2005] NSWCA 444

Cases Cited

9

Statutory Material Cited

5

Re Ezishop.Net Limited [2001] NSWSC 458

Re Morris, Theodore Constantine Ex Parte Donnelly, Max Christopher as trustee of the Bankrupt Estate of T C Morris [1997] FCA 905

CITATION:	New Cap Reinsurance Corporation Holdings Limited (ARBN 076 137 249) and the Corporations Law: [2001] NSWSC 835
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 5128/99
HEARING DATE(S):	30/05/01, 31/05/01, 09/07/01
JUDGMENT DATE:	31 October 2001
PARTIES :	New Cap Reinsurance Corporation Holdings Limited (ARBN 076 137 249) and the Corporations Law John Raymond Gibbons (Plaintiff)
JUDGMENT OF:	Santow J

COUNSEL :	B COLES, QC/ D R PRITCHARD (Plaintiff) S EPSTEIN, SC (ASC P/L & 4 Ors (Mr Saville; Saville Group)) M A PEMBROKE, SC (Macquarie Equities/ Macquarie Equity Markets Ltd) G M COLMAN (John Trowbridge Consultant P/L) D G MARJORIBANKS (solicitor) (Phillips Fox - William Peck) S ROWE (solicitor) (PWC (Elsa Payne/ Pat Murray)
SOLICITORS:	Henry Davis York (Plaintiff) Deacons (ASC P/L & 4 Ors (Mr Saville; Saville Group)) Mallesons Stephen Jaques (Macquarie Equities/ Macquarie Equity Markets Ltd) Clayton Utz (John Trowbridge Consultant P/L) Freehills (Phillips Fox - William Peck) Blake Dawson Waldron (PWC (Elsa Payne/ Pat Murray)
CATCHWORDS:	CORPORATIONS - Access sought by creditor of company in liquidation to documents produced to the liquidator for examinations for purposes of proceedings to be brought by that creditor against third parties associated with the company - Basis for such access as a matter of statutory power or discretion - relevant considerations. - WORDS AND PHRASES - Meaning of "books of the company" in case of a company in liquidation.
LEGISLATION CITED:	Australian Securities and Investments Commission Act s12DA Companies Code Corporations Law s436(1); s446A; s477(6); s479(3); s486; s511; s542; s596A; s596B; s596E; s596F; s597; s597(14A); s995 Corporate Law Reform Act 1992 Supreme Court Rules Pt 36 r 12
CASES CITED:	Australian Securities Commission v Marlborough Goldmines Ltd (1993) 11 ACLC 370 Bell Group NV v Woodings & Anor (1996) 14 ACLC 1,439 Re BPTC (in liq) (1993) 10 ACSR 756 BPTC Limited (No. 4) (1993) 11 ACLC 615 Douglas-Brown v Furzer (1994) 13 ACSR 184 Re Ezishop.net; Sims v Stone (2001) 38 ACSR 349 Flanders v Beatty & Anor (1995) 16 ACSR 324 Re GPI Leisure Corporation Ltd (in liq) (1994) 15 ACSR 282 Home Office v Harman [1983] 1 AC 280 New Zealand Steel (Australia) Pty Limited v Burton (1994) 13 ACSR 610 Nut Trading Co (Aust) Pty Limited v KKL (Kangaroo Line) Pty Ltd (1997) 25 ACSR 580 Sherlock & Vagrand Pty Ltd (in liq) v Permanent Trustee Australia Ltd (1996) 22 ACSR 16
DECISION:	Access granted.