FEDERAL COURT OF AUSTRALIA

Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2013] FCAFC 9

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    At all times relevant to this litigation, the appellant (Mr Oswal) was a director of Burrup Holdings Limited (BHL) and Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) (BFPL).

2    In his capacity as a director of those corporations, in the proceeding below, Mr Oswal sought orders permitting him to inspect and take copies of seven categories of books and records of BHL and BFPL. Each of the categories described a very broad class of books and records in relation to each of BHL and BFPL. Mr Oswal relied upon ss 198F, 290, 421 and 1303 of the Corporations Act 2001 (Cth) (the Corporations Act) and upon general law principles. He also claimed that he was entitled to exercise his right to inspect the books and records of BHL and BFPL through agents. He had in mind enlisting the aid of professional lawyers and professional accountants for this purpose.

3    By the time of the hearing before the primary judge, Mr Oswal had streamlined his demands.

4    He accepted that BHL did not hold any relevant books and records. For this reason, he agreed that his claims against BHL should be dismissed. Therefore, at the commencement of the hearing before him, by consent, the primary judge made an order dismissing Mr Oswal’s Application as against BHL upon the basis that there be no order as to the costs of that part of his Application. It is for this reason that BFPL is the only respondent in the appeal. For the same reason, it is only the books and records of BHL and BFPL in the possession of BFPL which remain in issue.

5    The primary judge made orders in favour of Mr Oswal in respect of several categories of documents but refused him relief in respect of a number of other categories of documents (Oswal v Burrup Holdings Limited (2011) 281 ALR 432; [2011] FCA 609).

6    In the appeal, Mr Oswal seeks orders permitting him to inspect those books and records of BHL and BFPL in the possession of BFPL in all but two of the categories in respect of which the primary judge declined to grant relief.

7    On 17 December 2010, ANZ Fiduciary Services Pty Limited (ANZ) appointed Ian Menzies Carson, David Laurence McEvoy and Simon Guy Theobald (the receivers) as joint and several receivers and managers over all of the assets and undertakings of BFPL pursuant to a Fixed and Floating Charge dated 18 December 2002 between BFPL and ANZ (the charge). On the same day, ANZ appointed the same persons as receivers and managers of all of the shares held by BHL in BFPL pursuant to a Share Mortgage dated 18 December 2002 between BHL and ANZ.

8    The categories of books and records in the possession of BFPL which fall for consideration in the appeal all concern documents and records created or received after 17 December 2010 and all concern actions taken or which might be taken by the receivers in respect of the assets the subject of the receivership. Included within the remaining categories in dispute is a category described by reference to certain proceedings in the Supreme Court of Western Australia (Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd CIV 2329 of 2009 (the WA proceedings)).

9    On appeal, Mr Oswal relied only upon general law principles in support of the claims for relief which he continued to press. He specifically abandoned any reliance upon any of the provisions of the Corporations Act which he had invoked before the primary judge.

Some Relevant Facts

10    In this section of our Reasons, we shall record a number of facts and matters which bear upon our consideration of Mr Oswal’s outstanding claims. Not all of these facts and matters were referred to by the primary judge. However, it is our understanding that they are uncontroversial as between the parties.

11    The facts and matters recorded in this section of our Reasons reflect the position as at the date of the hearing before the primary judge.

12    Mr Oswal was the Managing Director of BHL. He also owned 30% of the issued capital of BHL. His wife, Radhika Oswal, owned 35% of that issued capital. The remaining 35% of the issued capital of BHL was held by Yara Australia Pty Ltd (ACN 076 301 221) (Yara).

13    Mr Oswal was also the Managing Director of BFPL. BFPL was a wholly owned subsidiary of BHL.

14    The only other director of BHL and BFPL was Tor Holba.

15    For approximately six years, BFPL had owned and operated a substantial liquid ammonia production plant on the Burrup Peninsula in Western Australia.

16    On 16 December 2010, the day before the receivers were appointed, Mr and Mrs Oswal left Australia and have not returned. It appears that they have no present intention of returning. It also appears that they have taken up residence in Dubai and had done so by the time of the hearing before the primary judge.

17    No sale of the shares held by BHL in BFPL had taken place nor had the receivers sold any of the assets of BFPL. In particular, they had not sold the liquid ammonia production plant. However, the receivers had made public announcements which suggested that they intended to take steps as soon as practicable to realise the assets the subject of the receivership.

18    BFPL was a defendant and a counter-claimant in the WA proceedings. The WA proceedings involved (amongst other things) the interpretation of a Gas Sale and Purchase Agreement dated 17 December 2001 between BFPL and the Harriet gas joint venture parties. BFPL had negotiated a very favourable price for gas to be supplied to its liquid ammonia production plant and that price was reflected in and governed by that agreement. The plaintiff in the WA proceedings, Tap (Harriet) Pty Ltd, was one of the parties to the Harriet gas joint venture. The other parties to that joint venture were also defendants in the WA proceedings. The WA proceedings had the potential to result in an increase in the price at which gas would be supplied to BFPL. The receivers were in discussions with BFPL’s protagonists in this litigation with a view to settling the case.

19    Prior to the appointment of the receivers, BFPL was in dispute with Yara in relation to the terms of an Offtake Supply Agreement.

20    By a proceeding commenced in the Western Australia District Registry of this Court on 10 March 2011 (proceeding WAD 66 of 2011), BFPL sued Mr and Mrs Oswal and a corporation associated with them seeking declaratory and pecuniary relief arising out of alleged breaches by Mr Oswal of the duties owed by him to BFPL as a director of that corporation.

21    Mr and Mrs Oswal had commenced proceedings in the Supreme Court of Victoria in which they challenged the appointment of the receivers and were also involved in various other proceedings in the Supreme Court of Western Australia.

22    In an affidavit sworn by him on 9 March 2011 and read at the hearing before the primary judge, Mr Oswal said:

25.    In order that I may receive advice from my legal and accounting advisors as to the merits, prospects and defence of any legal proceedings that may be bought [sic] against me, it is my wish that my solicitors, Murcia Pestell Hillard, and my accountants, BDO (Australia) Limited, be given access to the books and records of [BFPL].

…

27.    I hold a Bachelor’s Degree in Chemical Engineering. I do not have sufficient experience in accounting and legal matters to accurately and efficiently identify and analyse many of the documents that would have to be inspected and analysed in order to understand the financial records of [BFPL].

23    To some extent, the statements made by Mr Oswal in par 27 of his affidavit were contested by the receivers who asserted that he had closely managed the affairs and operations of BFPL over many years and was more than capable of effectively carrying out the inspection which he sought without the assistance of others.

24    Mr Oswal also said that he wished to know what negotiations were taking place between the receivers and prospective purchasers of the assets and shares of both BHL and BFPL in order that he might take such steps as might be necessary to protect the interests of both BHL and BFPL and their shareholders. In a later affidavit, he explained that his intention was to take steps to protect the best interests of BFPL and its shareholders by corresponding with the receivers and, if necessary, commencing legal proceedings in Australia, presumably against the receivers and perhaps others.

The Judgment of the Primary Judge

25    No Notice of Cross-Appeal has been filed and BFPL did not seek to challenge the inspection orders which the primary judge made. In addition, Mr Oswal has abandoned two of the categories of materials which he had pressed before the primary judge. Further, on appeal, as we have already mentioned, Mr Oswal did not rely upon any statutory provisions in support of his case.

26    In these circumstances, it is not necessary for us to refer to the primary judge’s consideration of those categories of books and records in the possession of BFPL which are not the subject of appeal nor is it necessary for us to refer to his Honour’s analysis of the law relevant to the interpretation and application of ss 198F, 290 and 421 of the Corporations Act.

27    Having abandoned his claims against BHL, Mr Oswal further refined the scope of his claims against BFPL.

28    At (2011) 281 ALR 432 at 434–435 [2], the primary judge set out the terms of the categories of books and records in the possession of BFPL inspection of which was ultimately pressed by Mr Oswal before him as follows:

By application, the applicant identifies a number of categories of documents in [5(a) to (g)] that he wishes to inspect by his agents. However, he does not limit his application to those categories. Rather, he requires inspection of “any and all books (as that term is defined in section 9 of the Corporations Act) whether held in paper, electronic or any other form”. By way of recognition of the breadth of such an inspection, at the hearing of the application senior counsel for the applicant only sought inspection of the categories of documents described in [4] of a draft minute of proposed orders dated 27 May 2011 (the proposed orders), as follows:

Categories of Documents

4.    (a)    Any and all advices, correspondence, memoranda, file notes or financial records relating to the potential or actual sale of assets or shares of either Respondent created or received since 17 December 2010 by Ian Menzies Carson, David Laurence McEvoy and Simon Guy Theobald, in their capacity as the Receivers and Managers of BFPL (receivers and managers appointed).

(b)    Any and all documents created on or after 1 April 2009 relating to entries appearing in BFPL general ledger account 1639 or any other account held in the name of the Respondents that records the transactions referred to in the schedule to the Statement of Claim dated 10 March 2011 in WAD 66 of 2011, including:

i.    Invoices;

ii.    Payment requests;

iii.    edger (sic) entries;

iv.    Cheques;

v.    Transfer statements;

vi.    Payments approved;

vii.    Receipts;

viii.    Bank Statements;

ix.    Correspondence relating to above.

(c)    Any and all documents of the Second Respondent created, or containing information created, on or after 17 December 2010, being:

i.    Any primary accounting records relating to any payments made by or on behalf of the First and Second Respondents;

ii.    any correspondence with potential purchasers (whether by their agents, employees or otherwise) of:

a.    any assets of either of BFPL or BHL; or

b.    the Applicant’s shares in BHL.

iii.    any documents or correspondence containing or referring to negotiations (if any) between BFPL or the Receivers and Managers of BFPL and any one or more of:

a.    the Harriet Joint Venture; or

b.    any of the individual parties to the Harriet Joint Venture referred to as the Sellers in the Gas Sale Purchase Agreement dated 17 December 2001; or

c.    any agent or employee or the persons referred to in (i) or (ii).

iv.    General Ledger;

v.    contracts involving purchases or expenditure greater than $50,000 entered into by the Receivers by or on behalf of BFPL;

vi.    documents constituting any hardcopy or electronic file maintained by the Respondents or the Receivers of BFPL in relation to proceeding number CIV 2329 of 2009 in the Supreme Court of Western Australia; and

vii.    any document, including correspondence, relating to the determination of the off-take reference price payable pursuant to an agreement dated 13 December 2002 between, on the one part, Yara Australia Pty Ltd (ACN: 076 301 221) and, on the other part, the Second Respondent.

(d)    The audited accounts of the Second Respondent from June 2006 to December 2010.

(e)    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.

(f)    Any and all documents generated by the Respondents, or at a Respondent’s request by a third party, for the purpose of preparing the prospectus of the First Respondent dated May 2008.

(g)    Any and all documents, invoices, receipts of transactions, loan documentation and correspondence relating to payments made with respect to construction costs of the ammonia production plant from 1 January 2003 and 31 July 2006.

29    At 435 [3], his Honour noted the basis upon which each category was sought. He said:

Senior counsel identified the grounds upon which inspection of each category is sought, as follows:

•    Category 4(a) – Inspection under the general law and s 421(2) to the extent the documents are “financial records” as defined by the Corporations Act.

•    Category 4(b) – Inspection under the general law, ss 198F and 290(2) to the extent that they constitute financial records.

•    Category 4(c) – Inspection under the general law, s 421(2) to the extent that the documents constitute financial records and s 290 to the extent they constitute financial records.

•    Category 4(d) – Inspection under the general law, under s 290 to the extent that they constitute financial records and s 198F in relation to defence of proceeding WAD 66 of 2011 and proceeding SCI 2011 02166 in the Supreme Court of Victoria.

•    Category 4(e) – Inspection under the general law and s 290 to the extent that the records are financial records, and under s 421(2) to the extent that the documents are financial records.

•    Category 4(f) – Inspection under the general law and s 290 to the extent that the records are financial records.

•    Category 4(g) – Inspection under the general law, under s 198F for the purpose of proceeding SCI 2011 02166 in the Supreme Court of Victoria in which Mr Oswald [sic] is plaintiff, and under s 290 to the extent that the records are financial records.

30    Mr Oswal maintained his claim that he was entitled to exercise his rights of inspection by agents—qualified lawyers and professional accountants.

31    The primary judge ordered that Mr Oswal be allowed to inspect the materials in categories 4(c)(i), 4(c)(iv), 4(c)(v), 4(d), 4(e) and 4(f). Inspection of the documents called for by categories 4(c)(i) and 4(c)(v) was allowed on a managed basis (as to which see 447 [74] and 448 [78]). His Honour refused inspection of the materials called for by categories 4(a), 4(b), 4(c)(ii), 4(c)(iii), 4(c)(vi), 4(c)(vii) and 4(g).

32    At 436–437 [6]–[13], the primary judge set out his understanding of the relevant general law principles as follows:

6    The parties accept that a director has a common law right to inspect documents of the company. In Geneva Finance Ltd; Quigley (rec and mgr apptd) v Cook (1992) 7 WAR 496; 7 ACSR 415 (Geneva Finance), Owen J reviewed the authorities and confirmed that the right of a director to inspect books and records which relate to the affairs of the company is an incident of the office of the director and exists so that he or she may properly perform their duties as a director: see, for example, at WAR 507; ACSR 426, summary point 2; Conway v Petronius Clothing Co Ltd [1978] 1 WLR 72 at 89–90; [1978] 1 All ER 185 at 201 (Conway) per Slade J.

7    In Geneva Finance, Owen J also accepted that authority supported the view that a director may make inspection of such documents for such purposes personally or by an agent and may make copies of documents. As to inspection by an agent, Owen J at WAR 504 and 505 relied on older authorities such as Edman v Ross (1922) 22 SR (NSW) 351 (Edman) as supporting the right of a director through an agent to exercise the inspection right.

8    In Geneva Finance, Owen J further accepted that the right of access to documents generally (as opposed to just accounting records) arises under the general law, but the court has a residual discretion whether or not to order inspection: see WAR 507; ACSR 426, summary point 4. However, his Honour accepted that generally speaking a court will presume that a director intends to act in a way consistent with his or her duties and not to abuse the confidence reposed in him or her by using information for an improper purpose. In that sense, a director does not have to demonstrate “need to know” or furnish reasons before exercising the right of access to documents: Owen J at WAR 507; ACSR 426, summary point 6; see also Edman and Conway. I consider that his Honour’s statement of this principle in this regard may be considered generally consistent with the principle as stated in other authorities, such as Edman at 361, Berlei Hestia (NZ) Ltd v Fernyhough [1980] 2 NZLR 150; (1980) CLC 40-633 and Re Tai-Ao Aluminium (Aust) Pty Ltd v Cordukes (2004) 51 ACSR 465; [2004] FCA 1488 at [3]–[6]. Accordingly, his Honour’s reference to “residual discretion” does not connote a discretion at large whereby the court determines the appropriateness of the request for inspection.

9    However, in Geneva Finance, Owen J also accepted, as I do, that where a receiver is in control of the company the receiver is entitled to possession of the books and records of the company by virtue of the proprietary interest of the appointor and the receiver has no legal entitlement to the documents; and that the entitlement to possession is purposive. It exists to enable the receiver to fulfil the role for which the receiver has been appointed, namely, to administer the company and realise the assets so as to repay or reduce the debt to the debenture holder. But the entitlement to possession is not necessarily exclusive: at WAR 513; ACSR 432, summary points 5, 6 and 7.

10    In all of these circumstances, where a receiver is in possession of books and records the subject of inquiry, where inspection by a director is sought, [it] is the role and function of the receiver rather than the identity of the residual duties which remain with the directors. The receiver will therefore be justified in refusing to grant access to the documents where to do so would impede the receiver in the proper exercise of his or her functions or will impinge prejudicially upon the position of the debenture holder by threatening or imperilling the assets which are subject to charge: Geneva Finance at WAR 513–14; ACSR 432, summary point 8.

11    I also accept that there is a further general principle at play in relation to a director’s application to inspect, which is recognised by the authorities referred to above and that is that it may be refused where there is clear proof of a misuse of power, the onus being on those who assert it: for example, Geneva Finance at WAR 513; ACSR 432, summary point 3. While Owen J, in Geneva Finance at WAR 513; ACSR 432, stated this principle of misuse of power in relation to a pre-receivership situation, it plainly has general application. His Honour mentioned the pre-receivership situation in order, on the facts of that case, to accentuate the changed position when a company falls into receivership. His Honour was there merely emphasising that there is no “need to know” principle conditioning the general or common law access right prior to the appointment of a receiver, subject to the misuse of power disqualification. However, an attempt to exercise the general law right of access after the appointment of a receiver is no less subject to that qualification. It is just that there is an additional principle operating once a receiver is appointed and that arises from the pre-eminent responsibility of the receiver to realise the assets on behalf of the appointor.

12    In the circumstances of this application, therefore, it may be said that the applicant is primarily entitled, subject to demonstrated concerns about the proper administration of a company in receivership, to have inspection of a wide range of books and financial records. In this respect the general law right of a director to inspect books and records of a company may be considered to be not as limited as the right of a director under s 198F of the Corporations Act, to which I will shortly turn, to inspect books (other than financial records) personally; not limited, as is the inspection right under s 290, to which I will also shortly turn, to inspect financial records as defined by the Corporations Act; and also not as limited as the right under s 421 of the Corporations Act to inspect a managing controller’s records of transactions.

13    I should also add that if the court orders compliance with the general law right (or power) to inspect, the court might do so on terms or conditions that facilitate an orderly inspection that ensures, for example in the case of a receivership, that the functions of the receiver are not unnecessarily impeded.

33    After analysing ss 198F, 290, 421 and 1303 of the Corporations Act and various authorities relevant to the interpretation of those provisions, the primary judge discussed various factors which his Honour considered might militate against the grant of the relief claimed (as to which see 442–444 [41]–[52]). His Honour said:

(a)    It may be that the inspection sought by Mr Oswal if granted, would place an unduly onerous burden on the receivers. This burden may interfere with the primary function of the receivers, namely, to realise assets in order to discharge BFPL’s liabilities to the receivers’ appointor while, in the meantime, running a substantial undertaking—the ammonia business (at 442–443 [41]–[43]).

(b)    The receivers claimed that, in all likelihood, Mr Oswal already had in his possession a substantial number of BFPL records. However, there was a contest before the primary judge as to whether Mr Oswal had possession of two laptop computers upon which a substantial number of BFPL’s records were thought to be stored. His Honour was not satisfied that the laptops in question were in the possession of Mr Oswal. Nor was he satisfied that the other information, data, books and records which the receivers claimed were in the possession of Mr Oswal were, in fact, in his possession. His Honour, therefore, rejected this contention made on behalf of the receivers (at 443 [45]–[47]).

(c)    The receivers contended that, in circumstances where Mr Oswal had left Australia and apparently had no intention of returning, it was incumbent upon him to explain why he was personally unable (or unwilling) to inspect documents and why agents should be appointed to do so. He is, after all, a sophisticated businessman well-versed in reading, understanding and analysing corporate and financial records. His Honour did not consider this ground of objection to allowing inspection to have any weight (at 443–444 [48]–[49]).

(d)    The receivers also argued that the Court should not compel inspection at the suit of Mr Oswal because he has failed to provide to the receivers a report concerning the affairs of BFPL as he was required to do. It was submitted that Mr Oswal ought not to be allowed to flout his statutory obligation to report while simultaneously seeking relief under the very same statute which imposed the obligation to report. His Honour also rejected this additional general objection raised by the receivers (at 444 [50]–[51]).

(e)    His Honour rejected the final general ground of objection raised by the receivers (at 444 [52]). This ground concerned a tax assessment received by Mr Oswal.

34    The primary judge commenced his consideration of the particular categories of documents in question at 444 [53].

35    His Honour began his consideration of category 4(a) at 444 [53]. In rejecting category 4(a), his Honour noted that, as at mid 2011, there had been no actual sales of assets of BFPL, of any shares in BHL or of any shares in BFPL. At 445 [58], his Honour held that inspection of documents concerning potential sales of such assets or shares by the receivers might threaten the proper administration of the receivership or imperil the assets the subject of the charge under which the receivers had been appointed.

36    At 445–446 [59]–[63], when continuing to address category 4(a), his Honour said:

59    On behalf of the applicant it is submitted that there is a philosophical debate about the continued role a director in the position of the applicant may have in relation to the administration of a company which is in receivership. In my view, quite reasonably, senior counsel for the applicant submits that the relevant principle is not and cannot be that the director cannot do anything unless the receiver says so. The directors in this respect should not be considered paralysed. It may also be accepted, in my view, that there are some things that a director may reasonably assume a receiver would never do if it were to conflict with the interests of their appointor.

60    In this case, the applicant says in his affidavit sworn 19 April 2011 and filed 4 May 2011, that he believes the receivers are likely to be considering negotiating with one or more of the partners of the Harriet Joint Venture with a view to settling proceedings involving those partners and he is concerned that may entail a negotiation of a higher gas purchase price to be paid under the gas sale and purchase agreement between BFPL and the “Harriet Gas Sellers” dated 17 December 2001 (GSPA).

61    The applicant says that while the negotiations of a higher gas purchase price may immediately benefit the secured creditor in the sense of making it easier to negotiate a sale of shares or assets mentioned above, it would be very disadvantageous to BFPL and its shareholders (BHL). In this regard, BFPL currently pays approximately $1.30 per mmBTU for its gas supply, pursuant to the GSPA. The current spot price is in the region of $10 per mmBTU. If the receivers caused BFPL to pay more than the current price, the profitability of BFPL would fall.

62    The applicant says therefore he wishes to know what negotiations are taking place between the receivers and the respective purchasers of the assets and shares in order that he “may take such steps as are necessary to protect the interests of the second respondent and its Shareholders”.

63    In my view, if the court were to make an order obliging BFPL to allow inspection of documents falling into this category, there would be a real risk that any potential sale of assets or shares by the respondents could be put at risk. The applicant has made a clear statement that he might need to take such steps as are necessary to protect the interests of BFPL and its shareholders, which plainly include legal proceedings. I consider the inspection proposed raises the real risk of threatening the performance of the receiver. It is not appropriate in the circumstances, in my view, to make an order by way of enforcement of a general law right of inspection of the documents falling generally into category [4(a)].

37    His Honour dealt with category 4(b) at 446 [64]–[67]. At 446 [65], his Honour noted that, in proceeding WAD 66 of 2011, in which Mr Oswal is a party, McKerracher J had ordered that, by 3 June 2011, the receivers provide discovery of this very same category of documents. For this reason, at 446 [65]–[67], his Honour held that it was otiose to make yet a further order compelling inspection of documents in this category and unduly onerous on the receivers to subject them to such an order. His Honour therefore refused inspection of the documents called for by category 4(b).

38    His Honour went on to observe that the documents in category 4(b) were being sought in order to assist Mr Oswal to defend proceeding WAD 66 of 2011. At 446 [68], his Honour said that, in the circumstances of this case, he was of the opinion that Mr Oswal did not have a general law right to inspect the documents covered by category 4(b) “… as the inspection would not obviously arise pursuant to his duties as a director of [BFPL]”. His Honour was not persuaded that inspection of these documents compelled by Court order would be in the best interests of BFPL.

39    In the appeal, Mr Oswal has not challenged his Honour’s decision in respect of category 4(b).

40    His Honour dealt with category 4(c) at 446–449 [70]–[82]. Category 4(c) is confined to documents created in the period after the appointment of the receivers. The receivers were appointed on 17 December 2010. His Honour granted relief in respect of the documents described in some of the subparagraphs of category 4(c). We shall not refer to those sub-categories in this summary of his Honour’s Reasons.

41    Category 4(c)(ii) covers correspondence between the receivers and potential purchasers of the assets of BFPL or BHL or Mr Oswal’s shares in BHL.

42    Category 4(c)(iii) addresses documents relevant to the receivers’ dealings with the Harriet gas joint venture.

43    Category 4(c)(vi) seeks documents concerning the WA proceedings.

44    Category 4(c)(vii) seeks documents in respect of the receivers’ dealings with Yara.

45    At 447 [75], the primary judge refused inspection of documents covered by category 4(c)(ii). He held that inspection of these documents was not compelled by s 421 of the Corporations Act and that inspection of these documents should not be forced upon the receivers under the general law because access to such documents at the time of his Honour’s judgment would unreasonably interfere with, or threaten, the assets which were the subject of the receivership.

46    Included within his Honour’s reasons for rejecting Mr Oswal’s claim to inspect documents in category 4(c)(ii) were some of the reasons given by his Honour for rejecting inspection of the documents in category 4(a).

47    At 447–448 [76], his Honour applied the same reasoning to the documents called for by category 4(c)(iii) and at 448 [79]–[80] he applied the same reasoning to the documents called for by category 4(c)(vi).

48    At 448–449 [81]–[82], the primary judge dealt with category 4(c)(vii). At 448–449 [82], his Honour said:

These documents are not financial records, in my view, and so are not affected by s 421 and s 290 of the Corporations Act. While these would be affected by the general law right of inspection I would refuse to order inspection or access to the documents on the basis that the question of the off take price under that agreement is highly referable to the value of the assets of BFPL and the share price and that to order such inspection during the course of the receivership, while the receivers are involved in the realisation of assets, including shares, the sale thereof may be threatened or imperilled if inspection or access to this class of documentation were ordered.

49    At 449–450 [83]–[98], his Honour considered categories 4(d), 4(e) and 4(f). His Honour allowed inspection in respect of those categories.

50    At 450 [99]–[104], his Honour considered category 4(g). His Honour declined to compel BFPL to permit inspection of documents in category 4(g). Mr Oswal did not appeal from his Honour’s decision in respect of category 4(g).

Consideration

51    The specific categories of books and records in the possession of BFPL which are the subject of Mr Oswal’s appeal are categories 4(a), 4(c)(ii), 4(c)(iii), 4(c)(vi) and 4(c)(vii). We have set out the precise terms of those categories at [28] above.

52    We propose to address the relevant general law principles and then to consider each of the categories of books and records of BFPL which remain in issue in turn by reference to those general law principles.

53    In addition to considering the categories of books and records of BFPL which remain in issue, Mr Oswal has pressed his entitlement to have any authorised inspection carried out by professional agents (lawyers and accountants). At the hearing of the appeal, the receivers accepted that, if the Court were to permit inspection, it was appropriate that Mr Oswal carry out that inspection through his nominated agents.

The Relevant Legal Principles

54    The appointment of a receiver to the assets and undertaking of a corporation does not strip the directors of all of their powers and duties. The directors remain in office but in the normal course have no power during the receivership over the assets in the possession and control of the receiver.

55    The powers and authority of a receiver are primarily derived from the security instrument pursuant to which he has been appointed. Those powers are supplemented by the specific powers given to a receiver of property of a corporation by s 420 of the Corporations Act.

56    In the present case, the receivers were appointed pursuant to the charge. By that document, BFPL charged in favour of ANZ all of the present and future undertakings, assets and rights of BFPL including all real and personal property, choses in action, goodwill, uncalled and called but unpaid capital with the exception of a specific bank account called the “Offtake Escrow Account” as security for the due and punctual payment of all moneys secured by the charge (cl 1.1 and cl 2.1). The charge was a fixed charge over specified property of BFPL and a floating charge over all other property of BFPL (cl 2.3).

57    Once the charge became enforceable, ANZ had the power to appoint one or more controllers of the charged property (cl 6.1). A controller appointed over the charged property (in this case, the receivers) would be the agent of BFPL (cl 6.2). A controller appointed pursuant to cl 6.1 would be given comprehensive powers to realise the charged property in the interests of ANZ (cl 6.3). These powers included an untrammelled power to take proceedings on behalf of BFPL and to compromise existing as well as future proceedings to which BFPL might be party (cl 6.3(t)).

58    Once the charge became enforceable, the right of BFPL to deal, for any purpose, with any of the charged property, other than through a controller appointed under the charge, would immediately cease upon crystallisation of the charged property (cl 5.1).

59    It is difficult to conceive of any property, right or interest of BFPL that was not secured by the charge. Similarly, it is difficult to conceive of any power over the business operations, affairs or assets of BFPL that would not be accorded to a controller appointed under the charge.

60    The powers of a receiver are ancillary to the main purpose of his appointment, which is the realisation of the secured assets (Re B Johnson & Co (Builders) Ltd [1955] Ch 634 at 644–645 and at 661; Re Excel Finance Corp Ltd (Receivers and Managers Appointed); Worthley v England (1994) 52 FCR 69 at 86–87).

61    The receiver as agent of the debtor corporation “… occupies a very special position …” (Visbord v Federal Commissioner of Taxation (Cth) (1943) 68 CLR 354 at 382). The agency is “… special and limited in its character …” (R v Board of Trade; Ex parte St Martins Preserving Co Ltd [1965] 1 QB 603 at 617). The agency is special because the receiver’s primary duty is to his appointor not to the corporation (James v Commonwealth Bank of Australia (1992) 37 FCR 445 at 452).

62    The general position was succinctly and accurately summarised by Street J in Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 2 NSWR 782 at 790 where his Honour said:

Receivership and management may well dominate exclusively a company’s affairs in its dealings and relations with the outside world. But it does not permeate the company’s internal domestic structure. That structure continues to exist notwithstanding that the directors no longer have authority to exercise their ordinary business-management functions. A valid receivership and management will ordinarily supersede, but not destroy, the company’s own organs through which it conducts its affairs. The capacity of those organs to function bears a direct inverse relationship to the validity and scope of the receivership and management.

63    In Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd, Hawkesbury, which owned all of the issued capital in Landmark, challenged in its own name the validity of two mortgage debentures given by Landmark to United Dominions Corp (Aust) Ltd and thus the validity of the appointment of BH Smith to be the receiver and manager of the assets and business of Landmark. In the course of considering various arguments concerning whether Hawkesbury should be permitted to sue in its own name by way of exception to the rule in Foss v Harbottle (1843) 2 Hare 461, at 790, Street J made the observations which we have extracted at [62] above. His Honour went on to hold that, notwithstanding that Landmark was in receivership, it still had the power to challenge the validity of the debentures in its own name and that, if such a challenge were to be mounted, it ought to be brought by Landmark itself. The directors of Landmark retained the power to cause Landmark to bring such an action. At 790–791, his Honour continued:

If the case is well founded, then the directors undoubtedly have the capacity and power to bring it in the name of Landmark Finance. But even if the attack on the debentures is not well-founded, and ultimately fails, I am still of the view that the directors of Landmark Finance have the capacity, notwithstanding the apparently all-embracing terms of the debenture and the appointment of the receiver and manager, to cause proceedings to be instituted in the company’s name challenging the debenture. It would be strange to contemplate a debenture, or, for that matter, any other engagement, being permitted to stand on such a high plane as to be immune from challenge by the party entering into it. If it be necessary to go so far, I would hold that a floating charge purporting to extend, as does the present, to the whole of the assets and undertaking of a company, does not, upon appointment of a receiver and manager thereunder, extend to fettering the capacity or power of the directors of the company to cause proceedings to be instituted in the name of the company challenging that debenture. Both principle and common sense provide substantial support for this proposition. Its validity is perhaps well demonstrated by postulating a situation in which a debenture is invalid, and inquiring by whom the proceedings to challenge it are to be instituted. It borders on the absurd to contemplate the receiver and manager having the power to institute proceedings in the name of the company, challenging the very debenture to which he owes his office; and if the power does not reside in him to use the company’s name to challenge it, it would seem that it must remain with those who control whatever residual aspects of the company’s affairs are not caught by the debenture; that is to say, it must remain with the directors.

It is in my view not to the point to assert that proceedings such as these, if brought in the name of the company, could be diverted into a contest on the validity of the retainer of the solicitor purporting to act in the name of the company. A challenge to retainer is an interlocutory procedural step, and ordinarily the Court would not on such a challenge determine the whole point at issue in the suit. There might, of course, be cases in which the wishes of the parties or other appropriate circumstances might induce the Court to determine the major substantive issue upon such an application. But whether in the ordinary course of a final hearing, or in the course of making a final determination at an earlier stage, it is in my view open to a company to litigate before a court in proceedings instituted in its own name a challenge to a debenture in respect of which a receiver and manager has been appointed. I should, however, add that in recognizing this residual capacity in the company I am not to be taken to be expressing the view that its credit for costs could be pledged in priority to or equally with the claim of the debenture holder in the event of the company’s challenge failing.

64    In Newhart Developments Ltd v Co-Operative Commercial Bank Ltd [1978] QB 814, the UK Court of Appeal considered whether Newhart, as borrower from Commercial to whom Commercial had appointed a receiver, nonetheless retained the capacity to bring an action against Commercial initiated by the directors of Newhart for damages for breach of the relevant contract of loan by reason of Commercial’s withdrawal of financial support. Commercial argued that Newhart could not bring such an action because the receiver had not authorised or consented to its being brought and because, in any event, he (the receiver) was exclusively entitled to the fruits of the action. Shaw LJ, with whom Stephenson LJ agreed, held that the action had been properly brought and that the consent of the receiver was unnecessary. After summarising the reasons for judgment of the trial judge, at 819–820, his Lordship said:

He makes reference to M. Wheeler & Co. Ltd. v. Warren [1928] Ch. 840, and says: “Any action which would interfere with the receiver must be something which should not be allowed. Therefore I allow this appeal.”

The judge was, I would respectfully suggest, stating a truism when he said: “Any action which would interfere with the receiver must be something which should not be allowed” if by that he meant that any action which would interfere with the proper discharge of the receiver's function in gathering in the assets of the company, so far as they were available, in order to put him in the position to discharge the claims of his appointer; but if one is to take what the judge said in a wider literal sense, namely that any action which would interfere with the receiver must be something which should not be allowed, I would, for myself, suggest that is putting the position too widely. One has got to see what the function of the receiver is. It is not, of course, to wind up the company. It is perhaps interesting to note in passing that when a liquidator is appointed, certainly in a winding up by the court, the powers of the directors immediately cease by statutory provision. There is no such provision in relation to the appointment of a receiver, whose duty it is to protect the interests of the mortgagee or debenture holders, as the case may be. In so far as it is requisite and necessary for him, in the course of his dealing with the assets of the company, bringing them in and realising them, and so on, to bring actions as well, he is empowered to do so by the debenture trust deed in the name of the company. That makes it possible for him to institute such proceedings without exposing himself to the risk of a liability for costs if those proceedings should fail. But the provisions in the debenture trust deed giving him that power is an enabling provision which invests him with the capacity to bring an action in the name of the company. It does not divest the directors of the company of their power, as the governing body of the company, of instituting proceedings in a situation where so doing does not in any way impinge prejudicially upon the position of the debenture holders by threatening or imperilling the assets which are subject to the charge.

There is in the debenture deed itself a provision to the effect that the receiver may carry on the business of the company or concur in carrying on its business, which itself demonstrates that there is not a total extinction of the function of the directors. It is only within the scope of its assets which are covered by the debenture, and only in so far as it is necessary to apply those assets in the best possible way in the interests of the debenture holders, that the receiver has a real function. If in the exercise of his discretion he chooses to ignore some asset such as a right of action, or decides that it would be unprofitable from the point of view of the debenture holders to pursue it, there is nothing in any authority which has been cited to us which suggests that it is not then open to the directors of the company to pursue that right of action if they think it would be in the interests of the company. Indeed, in my view, it would be incumbent on them to do so, because notwithstanding that the debenture holders have got the right to be satisfied out of the assets subject to the charge, other creditors are entitled to expect that those concerned with the management of the company should exercise their best efforts to ensure that, when the time comes, they too will find themselves in the position that there is a fund available to pay them, if not in full, at least something of what they are owed.

The receiver is entitled to ignore the claims of anybody outside the debenture holders. Not so the company: not so therefore, the directors of the company. If there is an asset which appears to be of value, although the directors cannot deal with it in the sense of disposing of it, they are under a duty to exploit it so as to bring it to a realisation which may be fruitful for all concerned. If such an action as was started in this case comes to trial and there is a judgment in favour of the company then, if the debenture holders are still not fully satisfied the receiver can take steps to attach the proceeds of the judgment for the benefit of the debenture holders.

65    After citing a passage from Kerr on Receivers (14th ed, 1972 at 301), in which the learned authors appeared to suggest that the appointment of a receiver out of court pursuant to a fixed and floating charge given by a corporation, paralysed the powers of the corporation and its directors to deal with the property comprised in the appointment, his Lordship said (at 821):

If that means that nobody else can take any step in regard to the assets of the company which does not amount to dealing with, or disposing of, the assets, it would appear to me to be too wide and not supported by any authority which has been cited to us. What, of course, the directors cannot do, and to this extent their powers are inhibited, is to dispose of the assets within the debenture charge without the assent or concurrence of the receiver, for it is his function to deal with the assets in the first place so as to provide the means of paying off the debenture holders' claims. But where there is a right of action which the board (though not the receiver) would wish to pursue, it does not seem to me that the rights or function of the receiver are affected if the company is indemnified against any liability for costs (as here). I see no principle of law or expediency which precludes the directors of a company, as a duly constituted board (and it is not suggested here that they were not a duly constituted board when they took the step of instituting this action) from seeking to enforce the claim, however ill-founded it may be, provided only, of course, that nothing in the course of the proceedings which they institute is going in any way to threaten the interests of the debenture holders.

66    The relevance and significance of these general statements of principle as to the residual powers and duties of the directors of a corporation after the appointment of a receiver to its assets and undertakings pursuant to a debenture trust deed or, for that matter, a fixed and floating charge, in circumstances where a director sought access to the books and records of the corporation, were considered by Owen J in Re Geneva Finance Ltd; Quigley v Cook (1992) 7 WAR 496. In that case, the receiver and manager of Geneva applied to the Court for directions. The question in issue was whether the receiver was obliged by law to give access to Geneva or to its directors to certain of Geneva’s books and records. One of the recently appointed directors testified that the purposes for which the directors sought access to the books and records of Geneva were:

(a)    To acquaint themselves with the affairs of Geneva;

(b)    To properly carry out their obligations as Geneva’s directors; and

(c)    To investigate any potential causes of action that Geneva may have against other persons or corporations. The lines of inquiry would be directed to the conduct of the former directors and the past conduct of the auditors. The deponent did not suggest that the directors were looking at an action against the debenture trustee although there was some other material before the Court in which it was suggested that that was a possibility.

67    At 503, his Honour described the contentious documents in the following terms:

The contentious documents

It appears from the exchange of correspondence between the first respondents’ solicitors and the applicant on 2 May and 16 May 1991 that the documents to which the first respondents seek access are:

(i)    minutes of meetings of directors of GFL;

(ii)    minutes of meetings of shareholders of GFL;

(iii)    the secretarial records of GFL;

(iv)    the annual financial statements of GFL;

(v)    the general ledger of GFL;

(vi)    the receiver’s receipts and payments in respect of GFL;

(vii)    copies of reports required to be submitted to Perpetual in its capacity as trustee for the debenture holders in GFL;

(viii)    correspondence between GFL and Perpetual;

(ix)    correspondence between GFL and related and associated companies;

(x)    the loan files of GFL; and

(xi)     the securities files of GFL.

It seems that the applicant is prepared to grant access to the documents in items (i)-(vii) but not to those in items (viii)-(xi). The classes of documents to which access is sought extends beyond those which would be regarded as “accounting records” as that term is defined in s 5(1) of the Code. As I will mention later, s 267(9) of the Code provides a director with a statutory right to inspect the accounting records of a company.

68    At 503–504, Owen J discussed the role of directors. He made two important points which are significant for present purposes:

(a)    A director’s right of access to the books and records of the corporation of which he is a director is a vital tool designed to enable him properly to perform his duties as a director. The performance of those duties would be severely inhibited if access were not permitted since the books and records of a corporation are a prime and, sometimes, the only source of information about the affairs of the corporation.

(b)    The Court will assume that access is being sought for a proper purpose unless it is affirmatively satisfied that the intention of the access applicant is for an improper purpose. His Honour cited with approval the judgment of Street CJ in Edman v Ross (1922) 22 SR (NSW) 351 in support of this proposition.

69    His Honour then reviewed a number of other authorities and, at 507, said:

I would summarise those principles, to the extent they are relevant to this application, as follows:

1.    A director owes fiduciary duties to the company.

2.    A director has a right of access to the books and records which relate to the affairs of the company. The right is an incident of the office of a director and exists so that he might properly perform his duties.

3.    The right of access to documents generally (as opposed to accounting records) arises at common law and the court has a residual discretion whether or not to order inspection.

4.    The position in relation to access to accounting records is specifically dealt with in s 289(9) of the Corporations Law but the position may not be materially different.

5.    The right of access to documents carries with it a right to take copies and a right to engage agents to carry out the inspection where skilled assistance is necessary and provided that the duties of confidentiality which the director owes will not be compromised.

6.    Generally speaking, a court will presume that a director intends to act in a way consistent with his duties and not to abuse the confidence reposed in him by using information for an improper purpose. A director does not have to demonstrate a “need to know” or furnish reasons before exercising the right of access to documents.

7.    In the absence of clear proof that a misuse of power is involved (the onus of which lies on those asserting it) the court will be slow to prevent the exercise by a director of a right of the nature described.

70    At 507, his Honour commenced his consideration of the impact of the appointment of a receiver upon the directors’ right to inspect the books and records of the corporation of which they are the directors.

71    At 508–510, his Honour referred to a number of authorities where the impact of the appointment of a receiver upon a corporation and its directors was discussed, including Re B Johnson & Co (Builders) Ltd, Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd and Newhart Developments Ltd v Co-Operative Commercial Bank Ltd.

72    At 510, his Honour said:

In my opinion, the reasoning implicit in Newhart (supra) indicates the direction which the inquiry should take. The task is to look at the effect which the exercise of the power will have on the receiver’s functions rather than to concentrate on the identification and delineation of the residual duties reposed in the directors. I find further support for this approach in the passage which I have set out above from Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (supra). In that passage, Street J addresses himself to “authority” and “capacity” rather than to “duties”.

There are residual duties which the directors must carry out. I do not doubt that they are limited in nature. Neither do I doubt, as counsel for the applicant submitted, that a director of a company in receivership could not be called to account for a failure to pursue an asset which was in the possession and control of the receiver with the same diligence as the director would were the company not in receivership. On the other hand, the receiver could retire or be removed without prior notice to the company. If this were to happen, full management powers and authorities of the directors would be revived. It is difficult to see why a director should be prevented from taking a step which be believes to be in the interests of the company unless that step would, in the reasonable opinion of the receiver, prejudice the proper administration of the receivership.

73    At 510–511, Owen J discussed the case of Tudor Grange Holdings Ltd v Citibank NA [1992] Ch 53 in which Browne-Wilkinson VC commented that Newhart Developments Ltd v Co-Operative Commercial Bank Ltd may have been wrongly decided. Owen J said:

… The reasoning in Newhart did not commend itself to the learned Vice-Chancellor because it could lead to a situation where two different sets of people with widely differing views and interests both had power to bring proceedings for the same cause of action. I do not share the learned Vice-Chancellor’s difficulty on this point. It is a question of fact to be decided in each case whether the purported exercise of power by the directors is detrimental to the functions of the receiver. If it is, the directors must defer to the receiver. If it is not, it does not offend the principle which Newhart enunciates.

74    At 513–514, his Honour set out his understanding of the relevant principles in eight succinct paragraphs as follows:

1.     The directors have a statutory right to inspect the accounting records of the company, although query whether the right is exercisable against a third party properly in possession of the records and query also whether the court has a discretion to grant or refuse access.

2.     The directors have a common law right to inspect books and records generally and the court has a residual discretion whether or not to order that access be given.

3.     In a pre-receivership situation, the right of access is not conditioned on the directors demonstrating a “need to know”, although access may be refused where there is clear proof of a misuse of power, the onus of which lies on those asserting it.

4.     The appointment of a receiver alters the position to the extent necessary to recognise the receiver’s pre-eminent position in realising assets for the benefit of the debenture holder.

5.     A receiver is entitled to possession of the books and records of the company by virtue of the proprietary interest of the debenture holder and the receiver has no legal title to the documents.

6.     The receiver’s entitlement to possession is purposive. It exists to enable him to fulfil the role for which he was appointed, namely, to administer the company and realise the assets so as to repay or reduce the debt owing to the debenture holder.

7.     Because the entitlement to possession is purposive it is not necessarily exclusive. Third parties who would otherwise have a right of inspection may still be able to insist on access.

8.     The subject of inquiry should be the role and function of the receiver rather than the identity of the residual duties which remain with the directors. The receiver would be justified in refusing to grant access to the documents where to do so would impede the receiver in the proper exercise of his function or would impinge prejudicially upon the position of the debenture holder by threatening or imperilling the assets which are subject to the charge.

75    Owen J’s principle 8 encompasses “the real question” to which his Honour had referred at 511–512, namely: Whether the directors, wishing to exercise a power which they would otherwise have (and which is not being exercised for an improper purpose), can do so without prejudicing the legitimate interests of the receiver and of his appointor, the secured creditor, in the realisation of the assets the subject of the security. Where the information sought primarily relates to the conduct of the receivership and the activities of the receiver, access will usually be denied upon the basis that access would constitute the postulated prejudice.

76    The board of directors of a corporation in receivership has residual powers:

(a)    To apply for an order that the corporation be wound up or wound up provisionally or to resolve to appoint an administrator (Re Genasys II Pty Ltd (1996) 19 ACSR 435 at 436).

(b)    To cause proceedings to be taken in the corporation’s name to enforce rights which are not comprised in the receiver’s appointment or which he does not wish to pursue, including proceedings against the debenture holder and proceedings challenging the validity of the debenture or charge pursuant to which the receiver was appointed. The available causes of action against the debenture holder or in respect of the charge may be more extensive (as it was in Newhart Developments Ltd v Co-Operative Commercial Bank Ltd) but directors will not be permitted to pursue actions which prejudice the legitimate interests of the receiver or his appointor or which would impede the receiver in the proper exercise of his functions.

77    The principles articulated by Owen J in Re Geneva Finance Ltd have been consistently applied in this Court (eg by Sackville J in Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia (2001) 108 FCR 77 at 87 and by French J (as his Honour then was) in Sun-Life Properties Pty Ltd v Chellaston Pty Ltd (1993) 10 ACSR 476) and by the courts of the States and Territories. We do not doubt their correctness and regard them as constituting an accurate summary of the relevant law.

The Present Case

78    At [32] above we have extracted [6]–[13] of the primary judge’s Reasons for Judgment. In those paragraphs, his Honour set out the relevant principles under the general law which govern a director’s right to have access to the books and records of the corporation of which he is a director after that corporation has been placed into receivership. In light of our analysis of the relevant authorities, we do not see any error or misunderstanding in his Honour’s exposition of the relevant principles. Indeed, as we understood the parties’ contentions on appeal, neither Mr Oswal nor BFPL submitted that his Honour misstated or misunderstood the relevant law.

79    Mr Oswal’s complaint is that his Honour misapplied those principles.

80    We will now consider whether Mr Oswal has demonstrated error in his Honour’s application of the relevant principles. We shall do so by reference to each of the particular categories which remained in issue in the appeal.

Category 4(a)

81    Category 4(a) is in the following terms:

Any and all advices, correspondence, memoranda, file notes or financial records relating to the potential or actual sale of assets or shares of either [BHL or BFPL] created or received since 17 December 2010 by Ian Menzies Carson, David Laurence McEvoy and Simon Guy Theobald, in their capacity as the Receivers and Managers of BFPL (receivers and managers appointed).

82    As at the date of the hearing before the primary judge, no sale of any assets or shares of BHL or BFPL had taken place. Mr Oswal was, therefore, seeking access to documents which evidenced the steps then being taken by the receivers to realise the charged property at a time when no sale had yet taken place. The documents to which access was sought were documents which went to the heart of the receivers’ powers, duties and functions. Nonetheless, Mr Oswal submitted that the primary judge reversed the onus of proof in relation to whether the purpose for inspection was proper or not and thereby failed to give effect to the presumption stated in Edman v Ross.

83    Senior Counsel for Mr Oswal submitted that:

(a)    There was no evidence that Mr Oswal intended to act in a way which might be inconsistent with his duties or might abuse the confidence reposed in him by using information for an improper purpose;

(b)    There was insufficient evidence that inspection would threaten the proper administration of the receivership or imperil the assets the subject of the charge. There was no evidence that taking legal proceedings necessary to protect the interests of BFPL and its shareholders would threaten the proper administration of the receivership or imperil the assets the subject of the charge; and

(c)    It was in any event premature to consider whether legal proceedings by the directors of BFPL might unreasonably interfere with the receivership given that no such proceedings were imminent.

84    He also submitted that the primary judge could have ordered that Mr Oswal provide a suitable undertaking or indemnity to BFPL as a condition of granting access.

85    Senior Counsel for Mr Oswal pointed to Mr Oswal’s stated reasons for wanting access: Mr Oswal said that he wanted to ensure that any sale of the assets or shares of BHL and BFPL was conducted in a proper manner and for market value and that any settlement of the Yara litigation or the WA proceedings was reached in the best interests of BFPL.

86    It was also submitted on behalf of Mr Oswal that the primary judge erred by incorrectly assuming that there is necessarily a conflict between the proper administration of the receivership and Mr Oswal’s purpose in seeking access.

87    At [35]–[36] above, we summarised the way in which the primary judge dealt with category 4(a). At (2011) 281 ALR 445 [58], his Honour said:

Given that the pre-eminent role of the receivers is to realise the assets on behalf of the debenture holder, I consider the court should not facilitate inspection that may threaten the proper administration of the receivership or imperil the assets the subject of the charge by which the receivers have been appointed.

88    At 445 [59]–[62], his Honour referred to the evidence of Mr Oswal as to his reasons for seeking access to these documents. At 446 [63], his Honour concluded that, if access were permitted, there would be a real risk that any potential sale of the secured assets could be put at risk and that there would be a real risk that the performance of the receivers’ duties would be disrupted.

89    Under the charge, the receivers were given complete control of the charged property and fulsome powers to deal with that property in the interests of ANZ. At the same time, once the charge became enforceable, cl 5.1 took away from the directors of BFPL any right to control the disposition of the charged property. These contractual provisions reflected the general principle that, once a charge of the type under consideration here becomes enforceable and a receiver is appointed to the assets and undertaking of the corporation, the directors usually have no ongoing say in the management or disposition of the charged property.

90    The documents specified in category 4(a) are documents created by or for the receivers after their appointment in respect of the realisation of the charged property. They are not records of the business activities of BFPL. They constitute material which, as a matter of principle and upon the true interpretation of the charge, deals with matters which are within the exclusive province of the receivers.

91    In our judgment, his Honour did not reverse the onus of proof in respect of Mr Oswal’s purpose nor did he proceed upon the basis that Mr Oswal’s purpose in seeking access was improper. His Honour rested his decision upon the entirely orthodox basis that, if access were granted, there would most likely be an undue interference with the receivers’ performance of the receivership in circumstances where there was no basis for thinking that the receivers were conducting the receivership improperly. Mr Oswal’s postulated purpose addressed concerns which were entirely speculative.

92    The substance of his Honour’s decision was that Mr Oswal’s obvious desire to second-guess or keep an eye on the receivers while they set about selling the charged property in the interests of ANZ, in the circumstances of this case, was an insufficient basis for denying to the receivers the primacy which their appointment gave to them in respect of the realisation of that property.

93    We see no error in his Honour’s approach to category 4(a).

Categories 4(c)(ii), 4(c)(iii), 4(c)(vi) and 4(c)(vii)

94    These categories are in the following terms:

Any and all documents of [BFPL] created, or containing information created, on or after 17 December 2010, being:

…

(ii)    any correspondence with potential purchasers (whether by their agents, employees or otherwise) of:

a.    any assets of either of BFPL or BHL; or

b.    the appellant’s shares in BHL.

[Category 4(c)(ii)]

(iii)    any documents or correspondence containing or referring to negotiations (if any) between BFPL or the Receivers and Managers of BFPL and any one or more of:

(a)    the Harriet Joint Venture; or

(b)    any of the individual parties to the Harriet Joint Venture referred to as the Sellers in the Gas Sale Purchase Agreement dated 17 December 2001; or

(c)    any agent or employee or the persons referred to in (i) or (ii).

[Category 4(c)(iii)]

…

(vi)    documents constituting any hardcopy or electronic file maintained by [BFPL or BHL] or the receivers of BFPL in relation to proceeding number CIV 2329 of 2009 in the Supreme Court of Western Australia.

[Category 4(c)(vi)]

(vii)    any document, including correspondence, relating to the determination of the off-take reference price payable pursuant to an agreement dated 13 December 2002 between, on the one part, Yara Australia Pty Ltd (ACN 076 301 221) and, on the other part, [BFPL].

[Category 4(c)(vii)]

95    The primary judge refused access to these categories for the same reasons as he refused access to category 4(a). The parties accepted that the Full Court’s decision in respect of these categories would stand or fall with the Full Court’s decision in respect of category 4(a). We agree. Accordingly, we would not uphold Mr Oswal’s challenge to these categories.

Undertaking or Indemnity

96    The receivers submitted that Mr Oswal did not offer any relevant undertaking or indemnity at trial and that, had such an offer been made, the receivers would have been entitled to test the value of that offer. The receivers submitted (and we agree) that:

The Appellant would have faced a difficult task in establishing that an undertaking or indemnity was appropriate in circumstances where there is evidence from Mr Theobald of a risk of prejudicing negotiations with third parties, the contemplated action relates directly to the sale of assets by the Receivers or readying those assets for sale, and where the Appellant is already personally deeply indebted to the appointer of the Receivers. Of course, there was no offer nor evidence of a relevant undertaking or indemnity at trial.

Conclusion

97    Mr Oswal has failed to demonstrate any error in the primary judge’s application of the relevant principles. The appeal must therefore be dismissed with costs.

Associate:

Dated:    7 February 2013