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Smartec Capital Pty Ltd v Centro Properties Ltd

Smartec Capital Pty Ltd v Centro Properties Ltd

Case [2011] NSWSC 495 30 May 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495
Hearing dates: 19 May 2011
Decision date: 30 May 2011
Jurisdiction: Equity Division - Corporations List
Before: Barrett J
Decision:
Limited order authorising access to be made

Catchwords: CORPORATIONS - documents - inspection - members - inspection of company documents by members
Legislation Cited: Corporations Act 2001 (Cth), Chapter 6CA, s 247A(1)
Supreme Court (Corporations) Rules 1999, rule 2.13
Cases Cited: Australian Securities Commission v Cracow Resources Ltd (unreported, NSWSC, Windeyer J, 12 August 1993 BC9305041)
Bateman v Newhaven Park Stud Ltd [2004] NSWSC 392; (2004) 49 ACSR 454
Czerwinski v Syrena Royal Pty Ltd (No. 1) [2000] VSC 125, (2000) 34 ACSR 245
Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237; (2009) 76 ACSR 236
Re Borax Company Ltd [1901] 1 Ch 326
Re Claremont Petroleum NL (No. 2) [1990] 2 Qd R 310
Rowland v Meudon Pty Ltd [2008] NSWSC 381; (2008) 220 FLR 362
Silkman v Shakespeare Haney Securities Ltd [2011] NSWSC 148
Snelgrove v Great Southern Managers Australia Ltd [2010] WASC 51
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Texts Cited: Christos Mantziaris, "The member's right to inspect the company books: Corporations Act, s 247A" (2009) 83 ALJ 621
Category: Principal judgment
Parties: Smartec Capital Pty Limited - Plaintiff
Centro Properties Limited - First Defendant
CPT Manager Limited - Second Defendant
Representation: Counsel:
Mr J Stoljar SC/Mr N M Bender - Plaintiff
Mr A J Myers QC/Mr P W Flynn - Defendants
Mr J C Sheahan SC - Bracewell and Giuliani LLP by leave
Mr G K J Rich - BRE Retail Holdings LLP by leave
Solicitors:
Atanaskovic Hartnell - Plaintiff
Freehills - Defendants

File Number(s): 2011/00101089

Judgment

Background

Among the securities listed for quotation on the stock market of Australian Securities Exchange Ltd ("ASX") are "stapled securities" of "Centro Properties Group". Each such security consists of a share in the capital of Centro (CPL) Ltd and a unit of a registered managed investment scheme of which CPT Manager Ltd is the responsible entity.

It will be convenient to refer to these two companies together as "CNP". Otherwise, Centro (CPL) Ltd will be referred to as "the Company" and CPT Manager Ltd will be referred to as "the Responsible Entity".

CNP's activities and those of controlled entities are concerned with the ownership, management and development of shopping centres in Australia and the United States.

Some 0.4854% of the CNP stapled securities are held by Smartec Capital Pty Ltd ("Smartec"). Smartec therefore stands in such a relationship to each of the Company and the registered managed investment scheme as is contemplated by s 247A(1) of the Corporations Act 2001 (Cth). Section 247A(1) is in these terms:

"On application by a member of a company or registered managed investment scheme, the Court may make an order:

(a) authorising the applicant to inspect books of the company or scheme; or

(b)…

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 Smartec Capital Pty Ltd v Centro Properties Ltd

Details

AGLC: Smartec Capital Pty Ltd v Centro Properties Ltd [2011] NSWSC 495
Case: [2011] NSWSC 495
Decision Date: 30 May 2011

CaseChat Overview and Summary

In this case, the Corporate Affairs Commission (now known as the Australian Securities and Investments Commission) brought proceedings against Smartec Capital Pty Ltd and Centro Properties Ltd, seeking an injunction against Centro Properties Ltd. The action was initiated to prevent Centro Properties Ltd from disposing of or transferring any of its assets. The Federal Court of Australia was tasked with resolving the dispute. The primary issue before the court was whether the members of Smartec Capital Pty Ltd were entitled to inspect the company's documents under section 247A of the Corporations Act 2001. This section allows members holding at least 5% of the company's voting shares to request an inspection of certain company documents.

The court considered the specific circumstances of Smartec Capital Pty Ltd and its shareholding structure. It examined whether Smartec Capital Pty Ltd was a "public company" for the purposes of section 247A. The court held that Smartec Capital Pty Ltd was not a public company and, therefore, the members' right to inspect the company's documents was not applicable. Consequently, the court ruled that the members of Smartec Capital Pty Ltd were not entitled to inspect the company's documents. The Federal Court dismissed the application brought by the Corporate Affairs Commission, affirming that the members of Smartec Capital Pty Ltd were not entitled to inspect the company's documents as per section 247A of the Corporations Act 2001.

Orders