FEDERAL COURT OF AUSTRALIA

London City Equities Ltd v Penrice Soda Holdings Ltd (No 2) [2011]

FCA 822

FEDERAL COURT OF AUSTRALIA

London City Equities v Penrice Soda Holdings (No 2) [2011] FCA 822

CORRIGENDUM

1.      Schedule A has been inserted at the end of the Orders below.

Associate:

Dated: 1 August 2011

THE COURT ORDERS THAT:

1.                  Pursuant to section 247A of the Corporations Act 2001 (Cth):

1.1              Mr Peter Murray, the Chief Operating Officer of the plaintiff;

1.2              Mr John Plummer, the Chairman of the plaintiff;

1.3              Mr Rob Chenery, a director of the plaintiff;

1.4              the following solicitors: Mr Stephen Klotz, Mr Tom Porter and Ms Vivien Fung, all of Norton Rose Australia, solicitors for the plaintiff, and Mr Jeremy Giles of counsel; and

1.5              Mr Stuart Hamilton Cameron of K.S. Black & Co., Chartered Accountants

are authorised, on the plaintiff’s behalf, to inspect and make copies of the books of the defendant which are specified in Schedule A to these orders, with such books to be made available for inspection by no later than 22 August 2011.

2.                  The people authorised to inspect and make copies of certain books of the defendant pursuant to order 1 of these orders, shall only use the information they obtain during such inspection:

2.1              for the purpose of investigating and determining whether proceedings should be commenced by the plaintiff against the defendant or the directors of the defendant (or both) and for prosecuting those proceedings; or

2.2              for the purpose of investigating and determining whether an application for leave to bring proceedings in the name of the defendant against directors and officers (or former directors and officers) of the defendant should be commenced; and

2.3              if it is decided to commence proceedings in the name of the defendant, for the purpose of seeking leave to commence such proceedings and prosecuting such proceedings.

All such copies are to be returned to the defendant in the event that such proceedings are not commenced within seven (7) months of the date of these orders, or at the conclusion of any such proceedings.

3.                  Each party is to bear its own costs.

4.                  Liberty is reserved to each party to apply, on five (5) days notice, for further orders and directions, whether in relation to the implementation and conduct of the inspection authorised by this order or otherwise.

Schedule A

1.                  All profit and loss statements, cash flow statements and balance sheets prepared monthly and provided to the Penrice board of directors, for the period 1 July 2006 to 30 June 2010.

2.                  Penrice’s interest rate and exchange rate hedging arrangements during the period from 1 May 2008 to 1 March 2009.

3.                  Those parts of Penrice’s board minutes and board packs which deal with one or more of the following topics in the period specified:

3.1              Disclosure to the market of:

3.1.1        hedging losses (1 May 2008 to 1 March 2009);

3.1.2        superannuation defined benefits shortfall (30 June 2007 to 1 March 2009);

3.1.3        Penrice’s total debt (1 July 2008 to 1 March 2009);

3.2              the accounting treatment of aggregates/schist/landfill (1 July 2006 to 30 June 2010);

3.3              profit forecasts for the financial year ended 30 June 2009 (1 October 2008 to 31 October 2009);

3.4              profit forecasts fro the financial year ended 30 June 2010 (1 July 2009 to 31 October 2010);

3.5              dividend forecasts (1 July 2009 to 31 October 2010);

3.6              the availability of profits to meet the 2008 dividend payment (1 July 2007 to 31 October 2008).

4.                  All documents recording communications between Penrice and Penrice’s accountants and auditors which deal with one or more of the following topics in the periods specified:

4.1              Disclosure to the market of:

4.1.1        hedging losses (1 May 2008 to 1 March 2009);

4.1.2        superannuation defined benefits shortfall (30 June 2007 to 1 March 2009);

4.1.3        Penrice’s total debt (1 July 2008 to 1 March 2009);

4.2              The accounting treatment of aggregates/schist/landfill (1 July 2006 to 30 June 2010);

4.3              profit forecasts for the financial year ended 30 June 2009 (1 October 2008 to 31 October 2009);

4.4              profit forecasts for the financial year ended 30 June 2010 (1 July 2009 to 31 October 2010);

4.5              dividend forecasts (1 July 2009 to 31 October 2010);

4.6              the availability of profits to meet the 2008 dividend payment (1 July 2007 to 31 October 2008).

5.                  All documents containing dealings with or communications with National Australia Bank Limited and/or Westpac Banking Corporation with respect to the payment of, or any proposed payment of, a dividend by Penrice for the financial year ending 30 June 2010.

6.                  All documents created or received by Penrice in the periods specified below which record communications dealing with disclosure to the market of:

6.1              hedging losses (1 May 2008 to 1 March 2009);

6.2              superannuation defined benefits shortfall (30 June 2007 to 1 March 2009);

6.3              Penrice’s total debt (1 July 2008 to 1 March 2009);

6.4              the accounting treatment of aggregates/schist/landfill (1 July 2006 to 30 June 2010);

6.5              profit forecasts for the financial year ended 30 June 2009 (1 October 2008 to 31 October 2009);

6.6              profit forecasts for the financial year ended 30 June 2010 (1 July 2009 to 31 October 2010); or

6.7              dividend forecast (1 July 2009 to 31 October 2010).

7.                  All advice obtained by Penrice in the periods specified below on the topic of market disclosure concerning disclosure to the market of:

7.1              hedging losses (1 May 2008 to 1 March 2009);

7.2              superannuation defined benefits shortfall (30 June 2007 to 1 March 2009);

7.3              Penrice’s total debt (1 July 2008 to 1 March 2009);

7.4              the accounting treatment of aggregates/schist/landfill (1 July 2006 to 30 June 2010);

7.5              profit forecasts for the financial year ended 30 June 2009 (1 October 2008 to 31 October 2009);

7.6              profit forecasts for the financial year ended 30 June 2010 (1 July 2009 to 31 October 2010); or

7.7              dividend forecasts (1 July 2009 to 31 October 2010).

8.                  All documents created or received in the periods specified below evidencing the accounting treatment of:

8.1              aggregates/schist/landfill (1 July 2006 to 30 June 2010);

8.2              hedging liabilities (1 May 2008 to 1 March 2009); or

8.3              superannuation defined benefits shortfall (30 June 2007 to 1 March 2009).

9.                  All documents created or received between 1 May 2009 and 31 August 2009 evidencing expenditure by Penrice:

9.1              relating to the general meeting held on 27 July 2009; and

9.2              for the purpose of supporting the position of Mr Heard and Mr Trebeck.

10.              Penrice’s directors and officers insurance policies for the period from 1 July 2008 to date.

11.              To the extent documents are produced in a redacted form, the redactions are not to redact the identity of the author and recipient of the document, the date of the document, and to the extent the documents record or refer to a meeting, the identity of the persons attending the meeting and the date of the meeting.

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

1                     On 17 June 2011 I published my reasons for judgment on the application by London City Equities Ltd for authorisation to inspect certain categories of books of Penrice Soda Holdings Ltd under ss 247A(1) and 247A(3) of the Corporations Act 2001 (Cth).

2                     On that date I ordered that the parties confer and bring in short minutes to give effect to my reasons.

3                     The parties did confer but remained in disagreement about four areas and also in relation to costs.

4                     I have had the benefit of written submissions as to the form of orders and costs, on behalf of the plaintiff dated 12 July 2011 and on behalf of the defendant dated 19 July 2011.

5                     I now publish my orders.

Associate:

Dated: 25 July 2011