FEDERAL COURT OF AUSTRALIA

Yara Australia Pty Ltd v Burrup Holdings Limited [2010] FCA 1273

THE COURT ORDERS THAT:

1.    Pursuant to s.247A of the Corporations Act 2001 (Cth) (Corporations Act), the applicant is authorised to inspect and take copies of any and all books specified in paragraph 5 of these Orders of any or all of the respondents and Burrup Nitrates Pty Ltd ACN 127 391 422 (each a Company) by one or more of:

1.1    the directors, partners, officers and employees of Grant Thornton Australia Limited;

1.2    the directors, officers and employees of the applicant;

1.3    any other person being a director, officer or employee of Yara Asia Pte Ltd (a company incorporated in Singapore) or Yara International ASA (a company incorporated in Norway) specifically nominated at least 2 hours in advance in writing to the respondents by the applicant.

2.    Each person conducting the inspection shall sign a register prior to each attendance to conduct the inspection, indentifying (a) their name (b) their affiliation to one or more of the applicant, Grant Thornton Australia Pty Ltd, Yara Asia Pte Ltd or Yara International ASA, and (c) the date and time of their attendance.

3.    Subject to further order, the inspection shall:

3.1    take place from 8.30 a.m. Perth time on 22 November 2010;

3.2    continue during the hours of 8.30 a.m. to 5.30 p.m. Perth time on any day other than a Saturday, Sunday or a public holiday in Western Australia; and

3.3    be completed by 5.30 p.m. on 29 November 2010.

4.    Subject to further order, pursuant to s.247B of the Corporations Act, the persons identified in paragraph 1 of these Orders may only disclose any information obtained during the inspection to:

4.1    the applicant;

4.2    any Australian court;

4.3    any and all of the solicitors and counsel retained by the applicant; and

4.4    Yara Asia Pte Ltd and Yara International ASA:

4.4.1    each of which is to comply with the obligations contained in s.247C of the Corporations Act;

4.4.2    provided that each may disclose any such information to any Australian court,

subject to each of Yara Asia Pte Ltd and Yara International ASA submitting themselves to the jurisdiction of this Honourable Court in respect of this order and undertaking in writing that they shall abide by this order and otherwise this order 4(d) shall be of no effect until such time as these two conditions are satisfied; and

4.5    ASIC (as that term is defined in s.9 of the Corporations Act).

5.    For the purposes of these Orders, the books shall comprise 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 which relate to any one or more of the following:

5.1    the first respondent’s payment and non-payment to its shareholders of the dividend declared (or purportedly declared) on or around July 2009;

5.2    any and all payments made or financial benefits (as that term is defined in s.229 of the Corporations Act)(Financial Benefits) given by any Company to or on behalf of:

5.2.1    Maruti Shipping Pte Ltd, a company incorporated in Singapore;

5.2.2    RM Martin Pte Ltd, a company incorporated in Singapore; and

5.2.3     Pankaj Oswal, acting in any capacity, for the financial years ending 31 March 2009 and 31 March 2010, and the current financial year;

5.3    the payment of monies or giving of Financial Benefits by any of the Companies to Mr Pankaj Oswal (in any capacity) by way of any guarantee fee or in any way related to the document described as Project Loan Asset Swap between Pankaj Oswal in his capacity as trustee of the Burrup Trust and Australian and New Zealand Banking Group Limited (or an entity related thereto) dated on or about 16 December 2005;

5.4    any and all payments made or Financial Benefits given by any Company to Pankaj Oswal in relation to any of (a) to (c); and

5.5    in respect of the financial year ended 31 March 2010 and the present financial year:

5.5.1    the preparation (including the failure to timely prepare), audit, publication and lodging (including the failure to timely lodge) with the Australian Securities and Investments Commission, of the:

A. financial reports (as that term is defined in section 9 of the Corporations Act);

B. financial statements (as that term is defined in section 9 of the Corporations Act);

C. directors' report required by section 314(1) of the Corporations Act; and

D. auditor's report required by section 314(1) of the Corporations Act,

of any Company; and

5.5.2    the monthly and quarterly management reports prepared by any Company.

6.    The applicant’s notice of motion filed on 9 November 2010 for interlocutory injunction requiring inspection is dismissed.

7.    Time for service of the application and the amended application in these proceedings is abridged.

8.    The costs of and incidental to the hearings in this proceeding on 11, 12, 15, 18 and 19 November be determined at the next directions hearing.

9.    The application be adjourned to a directions hearing on 2 December 2010 at 12 noon.

10.    The parties have liberty to apply on abridged notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

application for interlocutory injunction

1    By application filed 9 November 2010, as amended on 16 November 2010, the applicant seeks interlocutory relief, alternatively final relief against the respondents, all of which is designed to aid or permit the inspection of the books of the respondent companies and another wholly owned subsidiary of the first respondent, Burrup Nitrates Pty Ltd.

2    The applicant’s application for interlocutory relief was first listed before me for urgent hearing last Thursday 11 November 2010 at 3pm. The hearing was adjourned to allow, amongst other things, the solicitors for the parties to further consider the proposed terms of a confidentiality agreement that might facilitate access to the books of the companies pursuant to a shareholders deed between the shareholders of the first respondent.

3    The matter then came on again before me on the morning of Friday 12 November 2010. I was then advised that the parties, through their lawyers, had been able to come to an agreement on the terms of a confidentiality agreement to permit access, but that the formal agreement of the directors of the first respondent to that course of action was required under the deed. The matter was then adjourned further to enable a circular resolution to be sent to the three directors concerned.

4    Eventually the matter came back on for hearing late in the afternoon of Friday, 12 November 2010. It appeared that one director (Mr Oswal) had indicated that he would abstain from voting on the motion put to directors. It also appeared that the director who in effect represents the interests of the applicant (Mr Holba) had indicated his willingness to support the motion. But the third, independent director (Mr Ambalavaner) could not be contacted, although he had apparently instructed an independent legal advisor to advise him in relation to the matter.

5    In those circumstances, the applicant reluctantly decided to concur in an adjournment of the matter to 2.15pm on Monday 15 November 2010.

6    The matter was dealt with again on Monday 15 November. It appeared that the directors had still not finally dealt with the circular resolution. The Court was advised that Mr Oswal, while he would abstain from voting on behalf of the first respondent, did not consider himself similarly restrained in respect of his position as director of the second respondent.

7    In such circumstances, I indicated that the parties should put on further submissions and if necessary any further affidavit evidence that they considered appropriate with a view to me hearing final submissions from the parties on the morning of 17 November 2010 following which I would deliver a judgment on the relief sought.

8    In the course of these events, the applicant filed an amended application on 16 November 2010, in which final relief was sought on one of the alternative claims.

9    It then was made clear that the applicant sought an interlocutory injunction pursuant to claims made under the shareholders deed, alternatively under s 1324 of the Corporations Act 2001 (Cth), and final relief was sought as a further alternative under s 247A of the Corporations Act.

10    A minute of proposed orders set out the terms of the injunction sought under the shareholders deed and s 1324, in similar terms. The minute set out a different form of proposed order in respect of the order sought under s 247A, although in material respects it repeated the terms of the other injunction sought.

11    The applicant made it clear that it seeks relief first under the shareholders deed in contract; alternatively under s 1324 of the Corporations Act; or alternatively again, under s 247A of the Corporations Act.

facts

12    I do not, in the circumstances, have the liberty of setting out in any great detail the background facts that have led to the applicant commencing the proceeding and seeking the interlocutory and final relief that they have.

13    Suffice to say that the applicant, which holds 35% of the shares in the first respondent, is an aggrieved shareholder who feels frustrated by its inability to obtain relevant information from the respondents or about the respondents and the subsidiary company Burrup Nitrates that bear on the operation of this group of companies as a whole.

14    The substantive concerns of the applicant are detailed in an affidavit by Soon Hee Koh, filed 12 November 2010. A number of parts of that affidavit contain hearsay information and are objected to by the respondents on a number of other grounds, principally the “best evidence rule”, for the purposes of the proceeding that seeks final relief.

15    In that regard, the applicant accepts there are difficulties in relation to the hearsay nature of much of that evidence but says that the evidence is nonetheless relevant as to “the state of mind” of the applicant. The applicant also says that there is sufficient documentary evidence, in any event, to found an order for inspection on a final basis under s 247A. The applicant in that regard also relies on the fact that the respondents have failed to provide accounts and a coherent explanation of its failure to do so. The applicant refers to the evidence of admitted unauthorised related party transactions concerning the respondents.

16    To the extent that the respondents also complain that the “best evidence rule” is not met in this case, the applicant points out that the best evidence rule has been abrogated by s 51 of the Evidence Act 1995 (Cth) and should not in any event be accorded a status that disables this court from acting upon the reliable evidence that is otherwise adduced. In this regard, counsel refers to Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498 at 500, per Gummow, Callinan and Crennan JJ.

17    As indicated the applicant holds 35% of the issued capital of the first respondent. The other shareholders are Mr Pankaj Oswal, with 30%, and his wife, Mrs Radhika Oswal, with 35%.

18    Mr Oswal is the chairman and managing director of the first respondent. The other directors are Mr Vinojit Ambalavaner (who is also an executive director) and Mr Tor Holba (who is a non-executive director and appointee of the applicant). Mr Wolfgang Jovanovic is the company secretary of the first respondent.

19    The second respondent is a wholly owned subsidiary of the first respondent and is the owner and operator of a liquid ammonia plant located on the Burrup Peninsula, in the North West of Western Australia, near Dampier, 1200km north of Perth.

20    The directors of the second respondent are the same as those of the first respondent, with Mr Oswal fulfilling the role of managing director. Mr Jovanovic is also the company director of the second respondent.

21    As noted, Burrup Nitrates Pty Ltd is also a wholly owned subsidiary of the first respondent.

22    In essence, the applicant seeks the right to inspect the books and records of the respondent companies and the other wholly owned subsidiary Burrup Nitrates. As noted, in doing so it relies on its contractual rights under a shareholders deed and also provisions of the Corporations Act.

23    Soon Hee Koh in his affidavit says at para 12, that the reason the applicant seeks inspection is because of concerns it holds in relation to:

(a)    The failure of the first respondent to pay a dividend on a timely basis and in full to the applicant, in circumstances where the dividend appears to have been paid in full to Mr and Mrs Oswal.

(b)    The first respondent’s apparent inability to pay the outstanding balance of the dividend in full when demanded by the applicant.

(c)    The failure of the respondents to prepare and file a financial and other reports in contravention of the Corporations Act and in breach of the shareholders deed in circumstances where no intelligible account for the delay, contravention and breach, respectively have been offered, and no account of when such delay, contravention and breach will be cured.

(d)    The payment by the first respondent and/or the second of an amount of, or amounts totalling, at least AUD$22 million to Mr Oswal in circumstances in which:

(i)    Those payments had not been authorised by the directors of the respondents (or otherwise).

(i)    There appears to be no proper purpose for the respondents or either of them to pay any such amounts to Mr Oswal.

(ii)    Mr Oswal has offered to pay such sum back to BHL on terms, without explanation or admission of liability.

(e)    The payment of amounts more than USD$1 million to RM Martin Pte Ltd (a company incorporated in Singapore) in circumstances in which:

(i)    the applicant is not aware of any basis upon which the second respondent is liable for the amounts actually paid;

(ii)    there appears to be no proper purpose for the second respondent to pay such amounts;

(iii)    the party who appears actually liable to pay the amounts in question was Maruti Shipping Pte Ltd (a company incorporated in Singapore), a company owned and controlled by Mr and Mrs Oswal and which is no relationship with the respondents; and

(iv)    despite being requested to do so, the officers of the respondents have declined to provide an adequate explanation as to what (if anything) is being done in relation to these payments.

(f)    The role of the first respondent and its managing director, Mr Oswal, in attempting to convert the first respondent from a private to a public company, the details of which are set out in the affidavit and have been the subject of earlier proceedings in this Court.

24    By a shareholders deed made between the applicant, Mr Oswal as trustee for the Burrup Trust and each of the respondents and dated 24 March 2008, by cl 6, the then shareholders agreed to deal with the topic of shareholder access. Subsequently, the holding of Mr Oswal as trustee was transferred to Mr and Mrs Oswal in their personal capacities as other that they now hold the shares that they described earlier. It is not contested that the current shareholders are bound by the deed.

25    Clause 6 provides as follows:

6.    Shareholder access

    Right of access

After giving at least 10 Business Days notice to Holdings, each Shareholder (itself or through its accountant or employee and at its own cost) will be entitled to reasonable access during Holdings’ normal business hours to:

(i)    visit and inspect any premises occupied by any company in the Company Group, the Registered Office and any property of any company in the Company Group;

(ii)    inspect and take copies of documents relating to the Business and the Company Group’s affairs including its books, accounts and records; and

(iii)    discuss the Company Group’s affairs, finances and accounts with the Company Group’s officers, employees and auditors,

for the purpose of auditing and valuing of the Company Group or for any reasonable purpose.

    Confidentiality

Before an inspection occurs or access is permitted under clause 6.1, any person appointed by a Shareholder to conduct the inspection or to be given the access, if requested, must sign a confidentiality agreement in the form approved by the Board.

    Minimum disruption

Each Shareholder must use its reasonable efforts to:

(a)    complete an inspection or access visit under clause 6.1 within 5 Business Days of its commencement; and

(b)    minimise any disruption to the Company Group’s operations.

26    By letter dated 13 October 2010, Clayton Utz, solicitors for the applicant, wrote to “the directors” drawing attention to allegations of which they had been made aware of by two journalists concerning “irregular payments” and the “potential misuse of funds” by the second respondent. These allegations were made in connection with an entity called Maruti Shipping Pte Ltd.

27    The letter also referred to documentation that the applicant had been provided with what “would appear to evidence the payment in the amount in excess of USD$550,000” by the second respondent to RM Martin Pte Ltd.

28    The solicitors for the applicants sought certain information about these allegations.

29    The letter went on to refer also to matters set out in an earlier letter dated 30 September 2010 as a result of which the lawyers stated that the applicant was extremely concerned “as to the manner in which the finances” of the respondents are being managed.

30    In the concluding few paragraphs of this letter, the applicant’s lawyers stated:

It is important that these allegations are fully and independently investigated. In those circumstances, please also confirm in writing that:

•    all practicable steps are being taken immediately to ensure that all the electronic, hard copy and other records of BHL and BFPL are being maintained and preserved;

•    Yara and its accountants will be provided with unfettered access to the financial records of BHL and BFPL for the purposes of conducting a forensic audit of BHL and BFPL’s accounts and for the purpose of investigating whether the funds of BHL and/or BFPL have been utilised to pay amounts in respect of invoices which are properly to the account of third parties; and

•    the details of the action at BFPL proposes to take in relation to Mr A … whilst this matter is being investigated.

If Yara’s demands are not complied with by close of business on Friday, 15 October 2010, we expect to receive instructions from Yara to take the necessary steps to address Yara’s concerns.

In the meantime, all of Yara’s rights are reserved.

31    The applicant contends that the statements made by its solicitors in the these passages, concerning the applicant and its accountants being “provided with unfettered access to the financial records” of the respondents “for the purposes of conducting a financial audit” and for “the purposes of investigating whether the funds” of the respondents had been utilised to pay amounts in respects of invoices which are properly to the account of third parties, constituted notice for the purposes of cl 6.1 of the shareholders deed.

32    On 1 November 2010, Clayton Utz sent a letter to the first respondent noting that notice had been provided and that as ten business days had expired from the date of that letter, it was the applicant’s intention to exercise its right of inspection, pursuant to cl 6.1 of the shareholders deed by attending its accountants, Grant Thornton, at the premises of the first respondent on 3 November 2010.

33    The letter of 1 November also attached a confidentiality agreement executed by Grant Thornton, or at least provided a copy of it indicating that the originals would be delivered to the offices of the first respondent in due course.

34    The letter pointed out that the confidentiality agreement followed the “same format that was previously acceptable to the Boards of BHL and BFPL when inspections of the companies’ books and records were conducted by Deloitte PPB WA Pty Ltd, Price Waterhouse Coopers and others in 2006”.

35    The letter amongst other things, sought confirmation by return letter that the applicant and its accountants would be provided with unfettered access and that certain persons would be available to answer questions.

36    On 4 November 2010, Mr Matthew Donnelly, director of advisory services at Grant Thornton Australia Ltd and Ms Carina Becker, a director of audit at Grant Thornton attended at the offices of the respondents for the purpose of undertaking an inspection of the books and records of those companies for and on behalf of Yara. In the event, they were advised that there was “no agreement regarding the confidentiality agreement” and that Blake Dawson, solicitors for the respondents, would be contacting them later that day. They were advised they would not be able to access the premises. They then left.

37    Mr Donnelly was contacted later that day by Mr Lucas Wilk of Blake Dawson by telephone. He was advised by Mr Wilk that he would be provided with a draft confidentiality agreement on 5 November 2010.

38    On 4 November 2010, Clayton Utz wrote to Mr B Lenzo at the first respondent, noting that Grant Thornton had been refused access that day. Questions were posed to the first respondent in this regard. In particular, it was noted that:

Despite your protestations to the contrary, neither you, nor the companies responded to Yara’s request in our letter dated 13 October 2010 that the companies confirm that Yara will be provided access to its books and records.

39    Questions were also raised as to why the confidentiality agreement provided did not satisfy cl 6.2 of the shareholders deed.

40    Correspondence subsequently passed between the solicitors for the applicant and the respondents. By letter dated 9 November 2010 Blake Dawson provided Clayton Utz with a draft confidentiality deed for execution that it considered appropriate. In these proceedings, counsel for the applicant explained why the applicant considered the terms of that draft confidentiality agreement “eviscerated” the access rights of a shareholder under cl 6 of the shareholders agreement.

41    On 9 November 2010 these proceedings were commenced and the notice of motion for interlocutory relief dated 9 November 2010 was listed for the hearing at 3pm on Thursday 11 November 2010.

claim for interlocutory injunction under the Shareholders deed

42    Having regard to the terms of cl 6 of the shareholders agreement and the facts outlined above, the applicant contends it is entitled to an interlocutory injunction that would, in substance, prevent the respondents from obstructing the applicant and its authorised accountants from entering and inspecting books and speaking with relevant officers of the respondents in relation to the financial circumstances or activities of the respondents and Burrup Nitrate.

43    The interlocutory injunction as framed in effect requires the respondents to allow the applicant to have entry on the terms set out in cl 6, by seeking an order that:

Each respondent must during the inspection period:

(a)    do nothing to impede, prevent or hinder the applicant from doing of the following for the purposes defined in (d) below:

(i)    entering any premises…

(ii)    upon such entry, inspecting and taking any copies of any or all documents…

(iii)    making inquiry of, or receiving answer from, any officer…

(b)    promptly provide to the applicant, upon written or oral request, for the purposes defined in (d) below:

(i)    access to any premises…

(ii)    any part or parts of the books

(iii)    such facilities as may be necessary to take any copies of any part or parts of the books

…    

Where:

(c)    the inspection period shall commence on the first business day after this order is made.

(d)    the applicant’s purposes for inspection are for any of:

(i)    auditing the company group;

(ii)    valuing the company group; or

(iii)    investigating any of:

A    the circumstances of the payment and nonpayment of dividends by BHL by its shareholders.

B.    the assets, liabilities, profits and losses, payments and receipts, cashflows, solvency, financial accounts, failure to timely prepare financial accounts, the financing arrangements, costs, expenses and revenues of any entities of any company group; and

C.    any unauthorised or related party transaction entered into by any entity within the Company Group.

(e)    any inspection pursuant to these orders shall be carried out by Grant Thornton, a firm of accountants on behalf of the plaintiff, upon conditions that:

(i)    such firm has executed a confidentiality deed in the form annexed… to the affidavit of Song Hee Koh filed in these proceedings… and

(ii)    the applicant shall use its best endeavours to

A.    complete the inspection within five business days; and

B.    minimise any disruption to the operations of any entity in the company group.

44    The respondents contend that unless and until each of the preconditions to access under cl 6 of the shareholders deed have been satisfied, the applicant has no substantive legal right which may be the subject of a proceeding or which may be supported by final injunctive relief or interlocutory injunctive relief.

45    The respondents say there are issues between the parties concerning both the adequacy of notice purportedly given in the letter of 13 October 2010, which is relied upon – and not the subsequent letter of 1 November 2010 from Clayton Utz – and the confidentiality agreement required under cl 6.2. The respondents say the applicant recognises these issues by seeking final relief by way of declaration in relation to the effectiveness of the notice it purportedly gave by letter dated 13 October 2010.

46    The respondents also note that the applicant does not seek any final relief with respect to cl 6.2, namely the signing of the confidentiality agreement as approved by the board.

47    As to the notice purportedly by letter dated 13 October 2010 – the relevant portion of which has been set out earlier – the respondents contend that to be valid the notice must do a number of things of which this letter did not do, namely:

    state when a proposed inspection will occur (given that clause 6.1 requires at least 10 Business Days' notice);

    specify which of the three available rights set out in clause 6.1 are purportedly being exercised; and

    set out the purpose of the proposed inspection of the books in question.

48    The respondents contend that the notice must contain sufficient information along these lines to enable the clause to operate properly in its context. This then enables the company to consider:

    whether the applicant has a proper purpose for the inspection;

    when it is proposed that the inspection will take place;

    who is proposed to conduct the inspection on behalf of the applicant; and

    what books or records are requested.

49    The respondents contend that under the approach taken by the applicant a notice could be given that is devoid of content, whereby a proposed inspector could attend at any unspecified date and time in the future and be entitled to inspect books and records immediately upon attendance.

50    The applicant, by contrast, insists that the 13 October 2010 letter was an “unequivocal request to inspect” and not capable of any other construction. It constitutes “notice”.

51    In the event, I consider that it is arguable that “notice” was given for the purposes of cl 6 of the shareholders agreement, nothing in the letter from Clayton Utz to the directors of the respondents dated 13 October 2010 expressly refers to the shareholders agreement or cl 6. In effect, the contention made on behalf of the applicant, is that on its proper construction, given the background understanding of the parties as to the content of the shareholders deed and the fact that the access rights of shareholders under the shareholders deed had been previously exercised, the demand made for confirmation in writing that “Yara and its accountants will be provided with unfettered access to the financial records… for the purpose of conducting forensic audit and for the purposes of investigating whether the funds … have been utilised to pay amounts in respect of invoices which are properly to the account of third parties” was a notice for cl 6 purposes.

52    I think for present purposes, it may be accepted as arguable that a notice, pursuant to a provision like cl 6 of the shareholders deed does not actually have to state on its face that it is a “notice given under cl 6 of the shareholders’ agreement”, although no doubt best practice would suggest that should be done to avoid conflict.

53    The statement of the confirmation in the letter of 13 October 2010 nonetheless when taken with the further statement that if the applicant’s demands were not complied with then they would “take the necessary steps” to address the applicant’s concerns arguably means that the letter in relevant respects constituted a notice that the applicant by itself or through its accountant proposed to exercise the reasonable access provided for in cl 6.1(a), (b) and (c).

54    The fact that the notice did not spell out that the access would be to do each of the things specified in cl 6.1(a), (b) and (c), again arguably does not matter. The contractual right given by cl 6.1 is that, after giving at least ten business days notice to the first respondent, the shareholder itself or through its accountant or employee (at its own cost) “will be entitled to reasonable access” to do those things. Arguably all that needs to be done for the purpose of exercising those contractual rights is the giving of notice that the access rights provided by cl 6.1 are intended to be exercised. Once ten days business notice has been given then the rights come about.

55    While it is arguable that a valid notice should specify when the access is to be exercised, that is to say when the visit or inspection is to occur, in order for the requirement to give “at least ten days business notice” to be satisfied, for present purposes, I consider it is arguable that where a notice is given on day 1, for the purposes of cl 6.1, then the access right created by cl 6.1 is exercisable upon the expiration of 10 days after the notice. I acknowledge however that it is not the only construction available.

56    Given that the right to reasonable access created by cl 6.1 upon notice may also be conditional upon the signing of the confidentiality agreement by a person appointed by a shareholder to conduct the inspection, under cl 6.2, and that there might be some delays in dealing with the confidentiality agreement issue, something I deal with in more detail below, any construction of cl 6.1 that suggests the notice must be to visit and inspect the premises etc on a very particular day, arguably is an unrealistic one in the context of this clause.

57    Generally speaking, it is open to argument that cl 6 requires the shareholder to give notice of at least 10 business days in order to visit and inspect the premises etc, subject to making appropriate arrangements, from a practical point of view, with the company. If a confidentiality agreement needs to be signed, then the actual date of visit and inspection will necessarily depend on the confidentiality agreement being in place.

58    Of course, it is arguable that these two concerns are able to be reconciled by concluding that a notice under cl 6.1 should never be too short, so that it allows for the settling of a confidentiality agreement and its signing well in advance of the specified date of the visit and inspection.

59    In any event, for present purposes I am not satisfied that the letter of 13 October 2010 is incapable of constituting a notice for the purposes of cl 6.1 of the shareholders deed.

60    The more difficult issue perhaps is the proper construction of cl 6.2 of the shareholders deed and the question whether or not it came into play or was satisfied in the circumstances of this case.

61    The applicant contends that cl 6.2 provides that:

(g)    before inspection occurs or access is permitted;

(h)    if requested;

(i)    any person appointed by a shareholder to conduct the inspection or to be given access must sign a confidentiality agreement;

(j)    in the form approved by the board.

62    The applicant says it follows that the clause only operates on a request by the first respondent for a confidentiality agreement. It also follows that cl 6.2 only applies to a shareholder’s appointee and not to the shareholder personally –who is already bound to confidence by cl.3.2(b) and cl 13.3 of the shareholders agreement.

63    The appointee must then sign a confidentiality agreement in “the form approved” by the board.

64    In ordinary circumstances therefore if a shareholder gives notice under cl 6.1 in the appropriate form so that its entitlement to access for the purposes specified in cl 6.1(a), (b) or (c) arises then the shareholder, itself or through its accountant or employees and at its own cost, will be entitled to do the things specified.

65    Only if prior to the access a request is made – and here one has to reasonably assume that the request will be made by the first respondent itself, through an authorised person – does the requirement for the confidentiality agreement arise before the right to inspect or enjoy access may take place.

66    The applicant contends on the facts that the board had approved “the form” of a confidentiality agreement on a prior occasion and that is the form that was duly signed by the applicant’s accountant and provided to the first respondent. In that regard, it might also be noted that the applicant assumed that a request would be made for a confidentiality agreement and it is now not open to contend no request was ever made.

67    The respondents contend that previous board approval to the confidentiality agreement supplied had run its course and that it cannot be said that it was an approval of a form that remained relevant at the time the applicant’s accountant presented themselves to make the inspection at the offices of the respondents on 4 November 2010.

68    In this regard, the respondents note the evidence referred to by the applicant, namely the respondents’ solicitors’ letter explaining that at the time the earlier confidentiality agreement was approved, there was broad disquiet about its terms and that it was only approved on an interim basis.

69    The question of what the board actually intended to do on the previous occasion, whether or not the form of confidentiality agreement earlier approved was intended by the board to be a standard or proforma agreement to be utilised in all subsequent cases, is not something I can determine at an interlocutory stage of a proceeding. However, I accept that the factual submission made on behalf of the applicant is, at least, arguable.

70    Submissions have been directed to the question of whether or not a fresh request must be given each time notice is given of intention to exercise the access rights, or the need for a confidentiality agreement. In my view, this will always be a question of fact. The board might, as a matter of good business practice, put in place a standard or proforma confidentiality agreement that should ordinarily apply and which is to be utilised, subject to any resolution to the contrary, any time a notice is given for the purposes of cl 6.1. That would save time, disputation and serve the convenience of the parties. On the other hand, if the board were to take the view that the circumstances of each notice of intention to exercise the rights under cl 6.1 required a fresh consideration of the confidentiality agreement, then that too would not seem to be something ruled out by the terms of cl 6.2. It would all be a question of what the board has factually decided to do at the time each notice is given.

71    Here, there is disputation as to exactly what the consequences of the board’s earlier actions were. It is arguable, as the applicant contends, that the earlier conduct of the board in fact put in place and approved “the form” by which confidentiality agreements should be signed in the event that it is requested.

72    Generally speaking, then, it seems to me that it is arguable, from the applicant’s point of view, that a notice was given, for the purpose of exercising the rights of access created by cl 6.1 of the shareholders agreement, and that a confidentiality agreement signed by the applicant’s accountants was properly provided to the respondents that met the requirements of cl 6.2 of the shareholders deed.

73    The question arises, however, whether in these circumstances that is all that the applicant needs to establish in order to obtain an interlocutory injunction. It is understood that to obtain an interlocutory injunction a party needs to establish that there is a serious issue to be tried and that the balance of convenience favours the grant of the injunction.

74    If serious prejudice would be visited upon a respondent by the grant of a interlocutory injunction that the application of an applicant, then a court will necessarily consider closely whether justice is served by the grant of the interlocutory injunction.

75    This is not a case where some status quo is maintained pending the final disposition of a proceeding. Here, if an interlocutory injunction is granted, the Court, in effect, leaves for a later date a determination of the primary question, whether proper notice was issued for the purposes of the access rights identified in cl 6.1 of the shareholders agreement and whether or not the confidentiality agreement signed by Grant Thornton and supplied to the respondents prior to attending the premises of the respondents on 4 November 2010, was one which met the description contained in cl 6.2. At the same time, the interlocutory injunction would prevent the respondents from frustrating the exercise of the purported access rights. In other words, the applicant would get what it wants in terms of an early visit and inspection of the relevant books of the respondents without there being a final determination of the principal matters in issue concerning its current contractual entitlement to enjoy access.

76    Thus, the grant of interlocutory injunction would effectively determine the applicant’s final claim, but without there being a final determination in the light of all of the facts and circumstances of the case.

77    The applicant contends that there is no legal impediment on the Court proceeding to grant interlocutory relief even if it might make redundant a final determination of the issues raised in the case. The applicant rejects the respondents’ submission that interlocutory relief of the type sort should not be granted because it would, in practical effect, grant final relief by reference to the proposition that it is the legal, rather than the practical effect of a decision that should be considered in such circumstances. In the event, I do not think that that particular test is determinative of whether or not an interlocutory injunction should be granted under s 23 of the Federal Court of Australia Act 1976 (Cth).

78    In pressing his submission, counsel for the applicant refers to what Gibbs CJ said in Carr v Finance Corporation Australia Ltd (No 2) (1981) 147 CLR 246 at 248. There the Chief Justice expressed the opinion that it is “to the legal rather than the practical effect” of a judgment that one should have regard when determining whether a decision appealed from was final or interlocutory. This is not a case where we are grappling with that particular issue.

79    I do not have any doubt that there may well be circumstances in which a court forms a view that an interlocutory injunction should go, even though the effect of granting the injunction might have the practical effect of determining the final issue in the case.

80    However, in my view, it should not be thought that it easily follows that once an applicant for such interlocutory relief demonstrates that there is a serious question to be tried and that the balance of convenience favours seems not to be in issue. While it may be stated that the threshold for establishing the Court’s power to issue an injunction is not particularly onerous (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092; (2007) 189 IR 165 at [39]) there are other factors at play.

81    This point has been recognised in a number of cases including in NWL Ltd v Woods [1979] 3 All ER 614, a decision of the House of Lords in which Lord Diplock at All ER 625 emphasised that the American Cyanamid Co v Ethicon Ltd [1975] AC 396 (American Cyanamid) rule concerning a serious issue to be tried was not developed in the context of a case where the grant of a interlocutory injunction would, in effect, dispose of the action finally in favour of whichever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party’s interest to proceed to trial. His Lordship stated that:

Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.

82    In Cayne v Global Natural Resources PLC [1984] 1 All ER 225, the English Court of Appeal had regard to what Lord Diplock said in NWL Ltd v Woods. The case concerned an attempt to obtain an interlocutory injunction in relation to the control of a company through the allotment of shares. Kerr LJ, at 233, observed that the action was never likely to be taken to trial if the plaintiffs obtained an injunction. On the other hand, if an injunction were refused the plaintiffs may well decide to pursue the action as well as other remedies available to them, even if they lost the battle at the annual general meeting. For his Lordship, the overriding consideration was that if an injunction were granted, the effective contest between the parties would be likely to have been finally decided summarily in favour of the plaintiffs. In those circumstances, he, as were the balance of the Court, was unwilling to grant an interlocutory injunction.

83    Eveleigh LJ in coming to a similar view made it clear that he was expressing no view as to the strength of the defence. What he said he could “safely say” was that on the evidence before the Court, the case for the plaintiffs was not “overwhelming”. But that did not mean it was not a good one.

84    As a result, the Court came to the view that the risk of injustice to the defendant was greater than the risk of doing an injustice to the plaintiffs by refusing an interlocutory injunction.

85    This line of authority was applied in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 (Kolback Securities) by McClelland J in Eq, at 536. Kolback Securities has been applied in a number of other cases, including in this Court in Australian Competition & Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; (2009) 253 ALR 324, per Foster J at [27] - [31].

86    In a way similar to Eveleigh LJ in Cayne v Global Natural Resources, I am in inclined to characterise the argument put on behalf of the applicant for interlocutory injunction under the shareholders deed as not an overwhelming case. That is not to say however it is not a good one. To grant an interlocutory injunction on that basis would effectively give the applicant the final relief that it seeks. There would be nothing left to go to trial on the issue of final relief in such circumstances. That would deprive the respondents of a trial, which they could likely win.

87    While one might have some sympathy on the facts for the position that the applicant currently finds itself in, in that the shareholders agreement plainly provides for a shareholder to exercise access rights in certain circumstances, the contractual position must be regarded and not ignored by the Court.

88    It seems to me weighing up all of the competing factors, that it is not in accordance with the dictates of justice that an interlocutory injunction should go on the terms proposed by the applicant in this instance. If the matter proceeds to a full trial on the current facts, then the full consideration of the facts and determination of the case will follow. There is not, on the face of this proceeding, anything that is so urgent that an interlocutory injunction should go to protect some status quo or otherwise avoid some injustice that would otherwise be suffered by the applicant if an injunction were not to be granted at this point.

89    In coming to this conclusion, I am aware that a number of issues raised in relation to the proper construction and operation of cl 6 of the shareholders agreement are left unresolved. For example, there is a question about the extent of the entitlement of the board of the first respondent to demand a confidentiality agreement in particular terms. That is not something that can be resolved at this point, although in the course of argument I remarked that there would probably be a requirement of reasonableness imported into the exercise of that function or discretion given to the board by the contract of the parties. If the board were to effectively withhold its consent to a reasonable confidentiality agreement, and so frustrate the right of access provided for in the agreement by a minority shareholder, I have little doubt that an aggrieved shareholder could seek appropriate relief. It might even be in such circumstances that the Court could be called upon to authorise the exercise of the access rights on the basis that a confidentiality agreement in particular terms first be signed. But as I say, this is not a matter falling for determination at this point, but is something that might become relevant if the arguments currently pressed by the applicant were not to succeed at trial and the matter required further consideration at a later time.

90    For these reasons, I would not grant the interlocutory injunction that is sought on the basis of the rights claimed by the applicant under cl 6 of the shareholders agreement.

claim for an interlocutory injunction under s 1324(4) of the corporations act

91    Section 1324(4) of the Corporations Act provides that:

Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

92    Section 1324(1) provides that the Court may, on the application of ASIC or a person whose interests have been, are, or would be affected by relevant conduct grant an injunction on such terms as the Court thinks appropriate, restraining the person from engaging in the conduct and, if the opinion of the Court it is desirable to do so, requiring that person to do any act or thing, in circumstances where a person has engaged, is engaging or proposing to engage in conduct constituted, constitutes or would constitute:

(a)    a contravention of the Corporations Act;

(b)    attempting to contravene the Corporations Act;

(c)    aiding, abetting, counselling or procuring a person to contravene the Corporations Act;

(d)    inducing or attempting to induce, whether by threats, promises or otherwise a person to contravene the Corporations Act;

(e)    being in any way, directly or indirectly, knowingly concerned, or party to, the contravention by a person of the Corporations Act;

(f)    conspiring with others to contravene the Corporations Act.

93    In this case, the applicant complains that the first respondent has failed to prepare approve, audit and publish financial accounts for the period ended 31 March 2010 and contravenes s 314, s 315 and s 319 of the Corporations Act.

94    The applicant says it is a person whose interests have been affected by this conduct in that it has not had the benefit of the audited financial reports to which it, amongst others, is entitled to have.

95    The applicant by its amended application, seeks a final injunction under s 1324(1) that by 30 November 2010, the first respondent do what it is required to do pursuant to s 314, s 315 and s 319 of the Corporations Act.

96    In seeking a final injunction, and at this point an interim injunction under s 1324(4), the respondent recognises that the question of whether there is a serious question to be tried and where the balance of convenience lies will not circumscribe the Court’s consideration. They contend however that the interests of justice will always require that those questions be examined carefully where restrictions are sought to be imposed before the case has been properly examined by the Court, even where the protection of the public is said to be involved: Corporate Affairs Commissions (NSW) v Lombard International Pty Ltd (1986) 11 ACLR 566 at 570 – 571.

97    The respondents say there are two reasons why an interim injunction providing for access to books and records, in the terms of order 1 of the minute of proposed orders put forward by the applicant should not be granted:

(1)    There is no sufficient nexus between the contraventions complained of, the final relief claimed, and the interim orders sought.

(2)    Section 1324(4) cannot provide a separate and stand-alone source of power to permit inspection of a company’s books and records by a member pursuant to interim orders, because s 247A is a specific section directed to that end and it must qualify the general power in s 1324.

98    The applicant recognises the importance of establishing a relevant nexus and contends that there is a sufficient nexus and that the grant of an interim injunction in the terms sought might assist it to have the respondents comply with their obligations under the Corporations Act. The submission is put in para 43 of written responsive submissions of the applicant in the following way:

[The applicant] seeks inspection of the primary material which it would have access to, in audited summary, had the respondents complied with their obligations under the Corporations Act. No intelligible explanation of why accounts have not been produced has been given, despite numerous requests over many weeks. The explanation that has been given, at best, nonsensical. No explanation of when accounts will ever be produced has been given, despite numerous requests over many weeks. [The applicant] holds, with good reason, grave concerns as to the financial circumstances of its investment.

99    The applicant then submits that it is difficult to think of what other alternative relief could be given to ameliorate the effects of an unexplained contumelious contravention of the financial reporting and audit provisions of Chapter 2M of the Corporations Act.

100    In my view, there are real difficulties on the facts of this case identifying the basis upon which the Court could grant an interim injunction under s 1324(4). The power, as set out above, is to grant an interim injunction, pending determination of an application under subs (1). An order in this case under s 1324(1), if granted as final relief, would be to require the respondents to lodge returns as provided for by the Corporations Act.

101    I have difficulty in fully comprehending how the grant of an interim injunction, by way of permitting the applicant to inspect the books of the respondents and ask questions of officers of the respondent company and their auditors, is relevantly connected to the final relief sought, such that it might be considered, for example, maintain some status quo, or preserve some property to which the alleged contravention of the Corporations Act relates. Rather, what the proposed access order would achieve would be, as counsel for the applicant submitted during the course of oral reply submissions, an opportunity to ascertain whether the applicant should in fact have any real cause for concern or, if it discovered that it did have some real cause for concern, to initiate or cause some action to be taken to rectify the noncompliance. While that may well be so, it is difficult, in my view, to see how such an outcome may be considered in any relevant respect connected to a proceeding in which the final relief sought is an order requiring a contravention of the Corporations Act, in relation to the nonfiling of returns, to be rectified.

102    In those circumstances, I am of the view that the Court simply does not have the jurisdiction, or perhaps more properly the power, to grant an interim injunction in these circumstances under s 1324(4) of the Corporations Act.

103    I do not in these circumstances, particularly given the purported urgency of this matter, need to consider in any detail the additional argument whether the specific power of the Court under s 247A of the Corporations Act to make an order, on the application of a member of a company, authorising the applicant to inspect books of the company or authorise another person to inspect books of the company on the applicant’s behalf, should be construed as the only way by which the Court is authorised to make such an order.

104    The power of the Court under s 247A(1), in this regard, is qualified by the requirement that the Court may only make the order if it is satisfied that the applicant “is acting in good faith and that the inspection is to be made for a proper purpose”.

105    I am of the preliminary view, even though as I have said it is not necessary for me to finally rule on this point, that the orders concerning inspection of the books of the respondents that the applicant here seeks in order 1 of the minute of proposed orders, are orders that, at least in part, could be made under s 247A. In such circumstances, it seems to me that there is a compelling argument that the only power that the Court has concerning the authorisation of persons to inspect books, is that which arises under s 247A and that however broad the powers of the Court may be under s 1324(4) are to grant an interim injunction pending a determination of an application under subs (1) of s 1324, they are not so broad as to cut across the criteria for the making of such an inspection order that is specified in s 247A.

106    In any event, as I have ruled, I do not consider that there is an appropriate nexus between the terms of the interim injunction claimed by the applicant and the final relief that it seeks in that proceeding under s 1324(4) in respect of the demonstrable noncompliance, on the evidence, of the respondents with their reporting responsibilities under the Corporations  Act.

107    The application for an interim injunction under s 1324(4) therefore fails.

claim for final relief under s 247A of the Corporations Act 2001 (Cth)

108    The applicant here claims final relief. Section 247A empowers a court to make orders concerning inspection of the books of a company in two broad circumstances, one governed by the terms of s 247A(1) and (2) and the other in the circumstances governed by subs (3)(6).

109    In this case, the applicant relies primarily on s 247A(1). In relation to this claim for final relief, which is asked for in terms of para 2 of the minute of proposed orders, the affidavit of Mr Koh is relied upon. As noted above, a number of evidentiary objections are taken, particularly to hearsay aspects of the affidavit. These are conceded on behalf of the applicant, although as noted it is submitted that the statements of belief and understanding of officers of the applicant are relevant to the state of mind of the applicant, which is itself relevant to any grant of the injunction. However that may be, it does not assist the applicant greatly here.

110    So far as objections on the basis that some paragraphs fail to meet the best evidence rule, s 51 of the Evidence Act abrogates that rule and s 48(1) permits a party to adduce evidence of the contents of a document in question by tendering it, which is what the applicant has done here.

111    Accordingly, a more substantive submission made on behalf of the applicant, is that there is sufficient documentary evidence before the Court in any event to found an order for inspection on a final basis, even if none of Mr Koh’s affidavit beyond the documentary evidence and the paragraphs where he deposes to matters of direct knowledge, were admissible for the proof of the underlying facts.

112    The applicant points also to the fact of the failure of the respondents to provide accounts and the incoherent explanation of that failure, together with the failure to advance any explanation of that failure at the hearing as constituting sufficient grounds to authorise inspection.

113    Additionally, the applicant submits that admitted unauthorised related party transactions concerning the respondents each constitutes independent, further and sufficient grounds to authorise inspection.

114    The applicant notes that the requirement of good faith and a proper purpose in s 247A(1), which it is necessary to demonstrate before the Court can make an inspection order under that subsection, is a composite notion: see Vinicigurra v MG Corrosion Consultants Pty Ltd [2007] FCA 503; (2007) 61 ACSR 583 at [62] – [65], Gilmour J; recently followed in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) [2007] WASC 207 (Areva NC), Martin CJ. I should follow that line of authority.

115    The applicant emphasises it is a member of the first respondent and asserts that its purposes in wishing to inspect the first respondent’s books are proper and made in good faith.

116    The applicant says it need not show a difference between its interests and those of other shareholders in order to obtain s 247A relief, and I accept that this is so, both as a matter of principle and having regard to the authorities: Claremont Petroleum NL v Australian Gas Light Co [1990] 2 Qd R 31 at 33 – 35, Full Court (Connolly, Thomas and Anderson JJ).

117    The applicant says it has a significant shareholding – effectively it is a 1/3 partner as an investor in the business of the respondents – which gives it a real financial interest in investigating the circumstances of the respondents and the other wholly owned subsidiary Burrup Nitrates.

118    The applicant submits that the failure to publish accounts, particularly in the circumstances of the evasive and unintelligible reasons for that failure, are a matter of interest to the first respondent as a whole. It says that that is also the case in relation to the failure to obtain proper explanations of related party transactions. In the circumstances of the claimed present irregularities, the applicant says it is proper to allow it to inspect board papers and refers in this regard to Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 at [39].

119    The applicant also refers to the Explanatory Memorandum to the Corporate Law Economic Reform Program Bill 1998, at [6.39], to emphasise that the good faith requirement was designed to prevent proceedings being used to further the purposes of a particular applicant, rather than the company as a whole. It says that requirement is met here as it is concerned to ensure the interests of the company as a whole are met.

120    The applicant submits that in the circumstances disclosed by the documentary evidence found in the affidavit of Mr Koh, the criteria in s 247A(1) are established and that the Court would only exercise its discretion against inspection if there were a compelling reason not to order inspection.

121    The respondents recognise that the Court may make an order authorising the applicant to inspect “books of the company” but says that the Court in considering such an application, should not only consider whether it is appropriate to do so by reference to the stated criteria, but also to consider which of the books of a company should be made available for that purpose: Majestic Resources NL v Caveat Pty Ltd [2004] WASCA 201 at [20] –[21]. This proposition again makes sense. The proper purpose for the inspection will usually assist in identifying the books that bear upon that purpose: see Re Style Ltd [2009] FCA 314; (2009) 255 ALR 63, at [71].

122    The respondents argue that the procedure under s 247A is not intended to be a process as wide ranging as the process of discovery of documents, so that as a general rule inspection will be confined to, say, the results of decisions of directors, rather than all documents such as board papers leading to decisions, and refer to Re Claremont Petroleum NL (No 2) [1990] 2 Qd 310 at 314 in this regard. In my view, while this might be generally so, in my view the facts of each case will finally dictate what documents might be appropriately accessed under this provision.

123    The respondents complain that the orders sought by the applicant are extremely broad and go well beyond what is necessary to meet a proper purpose for which inspection may be sought. Rather, the orders have been formulated with a view to enforcing the right of access provided for in the shareholders deed – which is potentially much wider than access under s 247A.

124    The respondents also submit that even if the Court considers the criteria for the exercise of the power under s 247A are met, the Court has a discretion as to whether or not to grant relief as recognised in Areva NC at [42]. That this is so should not be doubted, particularly having regard to the fact that the power of the Court is couched in terms that “the Court may make an order”. It is not required to make an order even if the criteria are satisfied.

125    In this case, the respondents submit that the discretion should not be exercised in favour of granting the orders sought because:

(1)        the access sought under s 247A is effectively the same as the access sought under the shareholders agreement in circumstances where the necessary preconditions in that agreement have not been met;

(2)        the board is considering, and may shortly approve, a confidentiality agreement allowing access under the shareholders deed, in which case the relief sought under s 247A is unnecessary.

126    In my view, neither of those factors concerning discretion are relevant or at least should cause the Court not to make an order here. The fact that access may be obtained to documents under the shareholders deed is entirely irrelevant, in my view, as to whether the Court should exercise a statutory power such as that given by s 247A(1).

127    Further, it seems to me to also be totally irrelevant that the board is considering whether or not to approve a confidentiality agreement for the purposes of a shareholders deed. Even if that were a relevant consideration, which I do not think it is, the sequence of events concerning the directors’ consideration of the terms of a confidentiality agreement since last Thursday, when this matter first came before me – a period now of a week – does not fill me with any confidence that it is about to happen anytime soon. In saying that I do not seek to attribute blame to any side. I rely merely on the facts of delay.

128    The issue then is whether there is sufficient information before the Court of an admissible nature in Mr Koh’s affidavit to cause the Court to be satisfied that the applicant acting in good faith seeks inspection for a proper purpose.

129    Even though the expression relating to good faith and proper purposes is said to be a composite expression, I must say that for myself I think they probably do have disjunctive qualities. I have little doubt that the applicant is acting in good faith. It entertains real concerns that there are a range of unexplained irregularities in the management of the company, including the financial management of the company and the related concerns about contravention of the Corporations Act in relation to the nonlodgement of returns under s 314, s 315 and s 319.

130    Evidence before the Court of an admissible nature and in the documentary evidence includes the fact that the full dividend debt due to the applicant was not paid by the first respondent until this proceeding was commenced. Having regard to the history of demand and nonpayment, that is a factor that bears upon the question whether the applicant reasonably harbours concerns in good faith and has a proper reason to inspect the books of the company.

131    The documentary evidence concerning the failure of the first respondent to prepare financial accounts also, in my opinion, falls into the category of a proper concern held by the applicant in good faith that justifies an inspection of relevant books bearing upon this concern. Little information has been provided on behalf of the first respondent as to why there had been delay in the lodgement of the audited accounts. General counsel of the first respondent has stated that:

That status of the accounts is a matter that rests between the Shareholders and is outside the role of general counsel; I am not charged with this aspect of the company’s operation. Accordingly, I am not in a position to respond to your questions on the subject. However, it is my view that this a matter more appropriately dealt with by the Board and nothing has prevented Yara from raising any concerns they may have that any of the Board meetings held on or about 12 July 2010 or subsequent thereto.

132    Documentary materials put before the Court also evidence a concern reasonably held by the applicant in respect of a large sum of around $22 million that the first respondent has apparently paid to Mr Oswal in apparent satisfaction of certain “PLAS” obligations owed by him to the ANZ Bank. The general counsel for the first respondent has indicated that the solicitors for the first respondent have recommended an urgent, impartial and independent investigation be conducted into this matter and has indicated no further input is required from him. His view is that any further consideration of the matter “should be addressed by the Board”.

133    There is sufficient admissible evidence concerning the issue of the $22 million payment to establish the view that an inspection of documents relating to this payment or these payments is proper, and the application is in good faith.

134    There is also documentary evidence concerning the Maruti transaction and a concern that this may be a related party transaction. The correspondence passing between the solicitors for the applicant and the solicitors for the respondents is sufficient, on its own, not to establish the truth of any allegations or implied allegations but to establish that the applicant holds a proper concern in good faith that justifies its requests to the Court for inspection of documents relating to that matter.

135    In the result, the applicant is entitled to an order for inspection, pursuant to s 247A. However, it needs to be tailored to the matters of proper concern to which I have referred.

136    Presently, para 2 of the amended application deals with the terms of the orders sought, as does para 2 of the minute of proposed orders, dated 11 November 2010, produced by the applicant. The minute of proposed orders, proposes an order in these terms:

The applicant is authorised to inspect and make any copies of the books and the respondents are enjoined to permit such inspection and copying, in accordance with orders 1(a), 1(b)(i), (ii), (iv), 1(c), 1(d) and 1(e) of those orders.

137    I consider an order in these terms to be, at the very least, confusing, as the paragraphs of proposed order 1 there referred to do not, as I understand them, fit within the Court’s power. I would also understand that s 247A(2), which authorises a person authorised to inspect books to make copies of the books, unless the Court otherwise orders, to be generally applicable to an order made under s 247A(1).

138    I consider that the terms of any order now to be made needs refinement so that it relates only to those books that fall within the categories of concern that I have identified above.

139    I also note that the Court may make ancillary orders under s 247B, limiting the use that a person who inspects books may make of information obtained during the inspection and limiting the right of a person who inspects books to make copies in accordance with subs 247A(2). The parties should also have liberty to make submissions concerning any orders that should properly be made by way of ancillary orders.

conclusion and orders

140    I would dismiss the applications for interlocutory relief under the shareholders deed and s 1324(4) of the Corporations Act.

141    I would however make a final order for inspection of books under s 247A(1) of the Corporations Act in respect of the first respondent.

142    I will hear from counsel as to the terms of the order and other orders that should now be made.

Associate:

Dated:    18 November 2010