Federal Court of Australia

White Oak Commercial Finance Europe (Non-Levered) Ltd v Insurance Australia Ltd (Without Prejudice Privilege) [2026] FCA 769

ORDERS

THE COURT ORDERS THAT:

1.    By 19 June 2026, the applicant produce for inspection by the respondents unredacted copies of the following documents:

(a)    WOC.0002.0002.0395;

(b)    WOC.0002.0002.0411.

2.    The first respondent’s amended interlocutory application dated 20 April 2026 otherwise be dismissed.

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

REASONS FOR JUDGMENT

THAWLEY J:

introduction

1    By an amended interlocutory application dated 20 April 2026, the first respondent (IAL) seeks orders requiring the applicant (White Oak) to produce fifteen documents for inspection. The application is made in proceeding NSD 1039 of 2021 (the White Oak Proceeding), which is one of eleven proceedings comprising the “Greensill Proceedings” described in Greensill Bank AG v Insurance Australia Ltd (Anti-Anti-Suit Injunction Application) [2025] FCA 1241 at [15].

2    IAL’s application concerns documents of two kinds.

3    First, there are fourteen WhatsApp messages (each comprising a series of messages in a chain) dated between 19 August 2020 and 18 January 2024. White Oak discovered these documents as relevant but refused to produce them for inspection, claiming without prejudice privilege (“WPP”). The messages comprise thirteen WhatsApp messages between Mr Andre Hakkak and Mr Sanjeev Gupta and one WhatsApp message between Mr Tom Otte and Mr Gupta.

4    Mr Hakkak was the CEO and Co-Founder of White Oak Global Advisors, LLC (WOGA): Ex 2 at [1]. As its name would suggest, WOGA is related to White Oak: Ex 2 at [1]. Mr Otte was the Head of Asset Based Lending at WOGA and a director of White Oak: IALS [9]. Mr Gupta is the head of Gupta Family Group Alliance (GFG), the group of companies which includes Liberty Commodities Limited (LCL), Liberty FE Trade DMCC and Liberty Commodities Group Pte Ltd: Box 1 at [17].

5    Secondly, there is a draft Term Sheet dated 12 August 2021 between White Oak and certain Liberty entities. The document is marked “Private and Confidential”. It was discovered by a cross-respondent in this proceeding, Greensill Capital (UK) Ltd (GCUK), and first came to the attention of White Oak in the context of an application heard on 20 April 2026.

6    White Oak objects to the documents being inspected on two bases. First, it asserts that each of the fifteen documents is not relevant. White Oak submitted that each of the fourteen WhatsApp messages was discovered by it in error. Secondly, White Oak claims WPP in relation to each of the fifteen documents.

7    Before addressing relevance and WPP, it is necessary to say something briefly about some of the issues in dispute in the White Oak Proceeding. It is not possible to attempt a summary of all the issues. The pleadings are over 2,000 pages long and the pleadings are not the only documents which outline the relevant contentions of the parties in this subset of the Greensill Proceedings.

the white oak proceeding

8    White Oak seeks judgment against IAL in respect of amounts alleged to be payable under a trade credit insurance policy purportedly issued by BCC Trade Credit Pty Ltd (BCC) as authorised representative of IAL to Greensill Bank AG (GBAG) and Greensill Capital Pty Ltd (GCPL). The claimed losses relate to debts owed to GCUK by its customers under accounts receivable finance facilities. White Oak invested in the finance programs set up by GCUK. White Oak alleges that it was an “Insured” under the policy and that its “investments were made on the basis that they were insured under [the] policy”: 5ASOC at [A2]. White Oak also alleges that it entered into a “Loss Payee Endorsement” which named White Oak as a loss payee under the policy: 5ASOC at [A5]. White Oak claims that, relying on the policy and various endorsements – including the endorsement referred to above – it purchased 29 accounts receivable from GCUK between 10 December 2020 and 25 February 2021.

9    In addition to its claims for indemnity, White Oak also:

(a)    brings claims against BCC and its former Head of Trade Credit, Mr Greg Brereton, seeking damages for misleading or deceptive conduct, false or misleading representations and breach of warranties of authority;

(b)    claims that IAL and/or Tokio Marine & Nichido Fire Insurance Co Ltd (TMNF), are responsible for BCC and Mr Brereton’s conduct as Australian financial services licensees under Part 7.6 of the Corporations Act 2001 (Cth);

(c)    brings claims against BCC, TMNF and Tokio Marine Management (Australasia) Pty Ltd (TMMA) seeking damages for misleading or deceptive conduct and in negligence for failing to inform White Oak of their serious concerns about the validity of the policy and its endorsements and that Brereton’s dealings with the Greensill Group were under investigation: 5ASOC at [A14].

10    It is necessary to say something more about the dealings between White Oak and LCL.

11    GCUK (on the one hand) and LCL and Liberty (on the other) entered into a Receivables Purchase Deed dated 29 October 2018, amended and restated on 6 December 2019 (RPA): 5ASOC at [24]. The RPA provided for the sale by LCL to GCUK of accounts receivable following a procedure set out in the RPA: 5ASOC at [25]. LCL could submit a request that GCUK purchase certain receivables from LCL and, if GCUK accepted a request, LCL would sell its interest in the receivable to GCUK.

12    GCUK, Liberty and Liberty FE executed a deed of guarantee, also dated 29 October 2018, under which Liberty and Liberty FE agreed to guarantee and indemnify GCUK in relation to various matters (Group Guarantee): 5ASOC at [32].

13    White Oak and GCUK entered into a Master Assignment Agreement dated 29 April 2020 (MAA). Under the MAA, White Oak could acquire, and have assigned to it, various “Payment Obligations” and all “Additional Rights” relating to the Payment Obligations: 5ASOC at [34]. The Payment Obligations could include a Purchased Receivable that GCUK had acquired from LCL under the RPA: 5ASOC at [35].

14    GCUK gave notice of the assignment to LCL of certain accounts receivable by a letter dated 29 April 2020. LCL was informed that GCUK would act as the agent of White Oak unless LCL was notified to the contrary by White Oak: Ex RB-23 at page 60.

15    White Oak acquired the 29 “Payment Obligations” from GCUK for USD142,707,342.25: 5ASOC at [61]. These related to “Customers”, said to be “Eligible Customers” within the meaning of the policy: 5ASOC at [63]. White Oak contends that the “Payment Obligations” were “Assets” covered by the policy issued by IAL: 5ASOC at [62].

16    On 7 March 2021, White Oak informed LCL that GCUK was no longer acting as its agent and White Oak was directly exercising its rights. On the same day, White Oak requested payment of the relevant debts from the Eligible Customers: 5ASOC at [65]. No payments from any Eligible Customers have been made to GCUK or White Oak: 5ASOC at [66].

17    On 9 March 2021, three officers at Grant Thornton Australia Limited were appointed Joint and Several Administrators of GCPL and, on 22 April 2021, were appointed Joint and Several Liquidators: 5ASOC at [11]. On 7 May 2021, solicitors for Grant Thornton advised White Oak that the administrator’s investigations indicated that many of the Eligible Customers either had no amounts owing to LCL or that they had no recent trade with LCL: 5ASOC at [67].

18    White Oak sent a letter dated 19 March 2021 to LCL demanding payment of the “Overdue Receivables”: Ex RB-23 at page 62.

19    LCL sent a letter dated 27 March 2021 to White Oak denying any obligation to make payment of the amounts demanded: Ex RB-23 at page 67.

20    White Oak’s claims against IAL for indemnity under the policy are put in two ways. One of White Oak’s claims concerns non-receipt of the amounts which should have been paid by the Eligible Customers (the accounts receivable acquired by White Oak from GCUK). The parties referred to these debts as the “Part A Debts”: Ex MS-21 at Tab 43.

21    White Oak’s case also concerns what was referred to as “Part B Debts”. These are debts said to be owing from LCL, Liberty and Liberty FE pursuant to cll 2.7, 6.1 and 6.2 of the RPA or under the Group Guarantee. The RPA contained terms addressing circumstances which would comprise an “Event of Repurchase” and an “Event of Termination”: 5ASOC at [28] and [29]. White Oak says that both events have occurred. It says that LCL has come under an obligation to repurchase the receivables (the Payment Obligations) purchased from LCL by GCUK: 5ASOC at [28] and [69]. White Oak says LCL has not repurchased the receivables and no Liberty entity has made any payment by way of indemnity: 5ASOC at [74].

22    White Oak has made claims under the insurance policy: 5ASOC at [76] to [78]. It contends that those claims were in respect of Losses caused by an “Insured Cause” under the policy, where the Insured Cause included: (a) the failure of the Eligible Customers to make payment of the Eligible Debts (the Part A Debts); and/or (b) the failure of LCL, Liberty or Liberty FE to make payment as pleaded in 5ASOC at [74] (the Part B Debts).

23    IAL’s case includes that White Oak entered into the MAA while LCL and the GFG Alliance were insolvent, referring to Ex MS-21 at Tabs 11 and 14 and IAL Defence Annexure A at [44(a)] and [391(d)]: IALS [27]. It contends that, soon after entering into the facility, Mr Hakkak and Mr Otte became aware that LCL had been submitting non-existent receivables to GCUK, referring to Ex MS-21 at Tabs 17 and 18: IALS [28]. It says that, notwithstanding these issues, Mr Otte approved further increases to White Oak’s investment in the GCUK LCL facility on 16 July 2020, referring to Ex MS-21 at Tabs 21 and 23: IALS [29].

24    In the context of the claims made under Part 7.6 of the Corporations Act, IAL contends that White Oak cannot reasonably rely on the conduct of BCC, Brereton and IAL because of its failure to make reasonable inquiries: IAL D5ASOC [41B(i)(vi)(F)]. IAL pleads:

any reliance by White Oak on the alleged “conduct” was not reasonable because:

…

b.    White Oak failed to undertake, alternatively failed to undertake adequate, investigations and/or due diligence into the underlying transactions in respect of LCL receivables pursuant to and in respect of which it purportedly acquired the Payment Obligations;

c.    White Oak failed to take reasonable steps to inquire into the existence, nature, creditworthiness and risk associated with the Payment Obligations, including failing to obtain invoices under which the Payment Obligations were alleged owing (see SOC paragraph 61);

THE DOCUMENTS

25    White Oak’s solicitor, Ms Box, gave evidence (by affidavit) that she had reviewed each of the documents and concluded that none of them was relevant and that each of them was properly the subject of a claim for WPP: Box 1 at [18]. She gave evidence as to matters about which she had been informed by Mr Hakkak and Mr Otte, relevant to whether the documents were the subject of a claim for WPP.

26    It is convenient to deal with the documents in two groups.

Group 1: the two WhatsApp messages in 2020

27    The first two documents are WhatsApp messages between Mr Hakkak and Mr Gupta occurring on 19 August 2020 and 24 August 2020. According to Ms Box, she was informed by Mr Hakkak that, at that time, he was “negotiating [with Mr Gupta] a potential resolution of a dispute” between LCL and a White Oak company which is not the applicant in this proceeding: Box 1 at [22(a)]. Ms Box also states that she was informed by Mr Hakkak that the dispute did not relate to “any investment made by White Oak through GCUK in the LCL Multi-Obligor Program” and that the messages “were sent by [Mr Hakkak] for the purpose of attempting to agree a resolution of the dispute with Mr Gupta without resorting to legal proceedings, which he thought could be necessary if the dispute was not resolved consensually”: Box 1 at [22]. Ms Box stated that she was informed by Mr Hakkak that, at the time he sent the messages, he considered them to be confidential: Box 2 at [17].

Relevance

28    One of the many issues in the proceeding is whether, and the extent to which, White Oak relied on the existence of trade credit insurance in deciding to make investments in the GCUK LCL facility pursuant to the MAA. Mr Hakkak’s evidence is that White Oak did rely on the existence of that insurance: Ex 2 at [6(c)] and [22]. Another issue is what White Oak knew about Mr Gupta’s business operations, financing needs and the genuineness of invoices and receivables (including the “Payment Obligations”) relevant to its financing.

29    As CEO of WOGA, Mr Hakkak was a voting member of WOGA’s Investment Committee: Ex 2 at [12]. He was also a voting member of the White Oak UK Approval Committee, together with Ms Barbara McKee and Mr Otte: Ex 2 at [13]. The UK Approval Committee was responsible for considering and deciding whether White Oak would call capital from WOGA, which had been approved to be advanced to White Oak by WOGA’s Investment Committee for the purpose of White Oak making particular investments in the Greensill LCL RPA Program: Ex 2 at [14]. Accordingly, the state of Mr Hakkak’s knowledge concerning Mr Gupta’s affairs is relevant.

30    The two WhatsApp messages, together with the other twelve, were identified by White Oak as relevant after an “initial review”. They were subject to three layers of review by White Oak’s Australian lawyers: Box 19 December 2024 at [32], [33] and [54]. White Oak’s discovery was verified by Mr Otte: Prinsloo at [7]; Ex KP-15 at Tab 3.

31    Although Ms Box states that she considers the documents to be irrelevant, that opinion is not explained by reference to the issues in the proceedings, or the process undertaken to form that view. The nature of the dispute to which the two messages relate was not explained and the Court was not provided with any contemporaneous documents which might further explain what is stated in the messages.

32    Having reviewed the documents, and accepting that they concern an earlier and different dispute with LCL than the direct dispute the subject of the White Oak Proceeding, it is likely that they are directly relevant, including to White Oak’s knowledge of the financing needs of LCL, reliance, issues of reasonable inquiries in connection with the claims made under Part 7.6 of the Corporations Act, and issues of proportionate liability or contributory negligence.

Without prejudice privilege

33    WPP prevents settlement negotiations, in relation to existing or contemplated proceedings, being admitted into evidence: Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; 93 NSWLR 155 at 160 [25] (Hammerschlag J). Documents subject to WPP need not be produced on subpoena or pursuant to discovery and the subsistence of the privilege in that context is determined on the basis of the common law: Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd (No 3 – privilege claims) [2021] FCA 1208 at [114] (Wigney J).

34    The law encourages out-of-court settlement of disputes. Frank communication between parties is often necessary to achieve settlement. WPP developed in substantial part to prevent the admission into evidence of concessions made for the purpose of settling matters in dispute: Gregory v Howard (1800) 3 Esp 113; 170 ER 557. The public policy basis of the rule is to prevent anything said in without prejudice negotiations being relied upon as an admission: Muller v Linsley & Mortimer (a firm) [1994] EWCA Civ 39; [1996] PNLR 74 at 79A (Hoffman LJ); Field v Commissioner for Railways (NSW) [1957] HCA 92; 99 CLR 285 at 291–2 (Dixon CJ, Webb, Kitto and Taylor JJ); Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 at 1305 (Lord Griffiths); Harrington v Lowe [1996] HCA 8; 190 CLR 311 at 323; Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [1999] QCA 276 at 286 [18] (Pincus JA); Dowling at 161 [31].

35    The evidence establishes that the two WhatsApp messages in 2020 related to a dispute between a White Oak entity and LCL and that litigation may have been necessary to resolve that dispute – see [27] above.

36    The two WhatsApp messages are broadly directed towards a general approach which the parties might take to their dispute, but they do not constitute negotiations or directly discuss any resolution of the unidentified dispute. The messages do not contain any reference to the possibility of litigation or contain any admission of liability or concession of fact or law. The messages involve no observable element of compromise. The communications are not “indicative of [an] intention to make a compromise [or offer] some concession, some sacrifice for the sake of peace”: Thomson v Austen (1823) 1 LJ KB 99 at 99. The communications indicate that a party is open to suggestions and, at best, constitute discussions as to approaches which might be taken.

37    The communications do not constitute negotiations for the purpose of settlement of a kind sufficient to attract WPP – see, for example: GPI Leisure Corporation Ltd (in liq) v Yuill (1997) 42 NSWLR 225 at 226–7 (Young J); C J Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173 at [5] to [8] (Campbell J).

Group 2: twelve WhatsApp messages after the dispute arose and the draft Term Sheet

38    The second group of documents comprises twelve WhatsApp messages with Mr Gupta occurring after the dispute arose between White Oak and LCL in March 2021 and a draft Term Sheet. Ms Box gave evidence that the twelve messages were sent for the purpose of seeking to negotiate a resolution of the dispute, being the dispute which is central to these proceedings: Box 1 at [29] to [41]. She stated that the draft Term Sheet was created at Mr Otte’s direction in connection with an attempt by White Oak to negotiate settlement of the dispute: Box 1 at [25]. It is marked “Private and confidential”.

Relevance

39    These documents are not relevant in the same way as the two WhatsApp messages which pre-dated White Oak’s investments. Noting that it did not know the content of the documents, IAL suggested in its written submissions various other ways in which the documents might be relevant: IALS [24]. The documents do not appear relevant to any of these issues.

40    In oral submissions, IAL submitted that the documents might be relevant to the losses claimed by White Oak and, in particular, the extent to which White Oak’s losses should be reduced by an amount it has received from LCL. That issue arises in the following way. After the dispute arose in March 2021, White Oak sought to recover payments allegedly owing by LCL. White Oak and Mr Gupta were also engaged in broader commercial negotiations, perhaps triggered by the dispute which arose in March 2021, which involved a potential financing agreement (at one stage for around $430 million) with another GFG Alliance entity, Liberty Primary Metals Australia: Ex MS-21 at Tabs 32 and 35. The negotiations were being undertaken against the background that, on 31 March 2021, Citibank NA had presented a petition to wind up LCL in proceedings brought in the United Kingdom in the High Court of Justice: Box 1 at [35]; Ex MS-21 at Tab 41. White Oak’s evidence was that the draft Term Sheet dated 12 August 2021 related to resolution of the dispute between the parties and did not lead to an agreed financing agreement.

41    Ultimately, White Oak was substituted as petitioning creditor on 6 October 2023: MS-21 at Tab 42. White Oak, LCL, Liberty and Liberty FE, entered into a “Settlement Agreement” dated 25 January 2024: Ex MS-21 at Tab 41. Under that agreement, LCL agreed that the Petition Debt was presently due and payable to White Oak, and that it constituted an undisputed debt owed by LCL: cl 4. The creditor’s petition was not in evidence and has not been discovered. The Settlement Agreement contemplated that a further settlement agreement would be entered into: cll 5.1 and 5.2. White Oak has received USD41.5 million from LCL pursuant to the settlement.

42    On the pleadings, White Oak does not accept that the USD41.5 million necessarily reduces the losses it claims from IAL. It accepts that the amount of USD41.5 million reduces the Part B Debts, but not the Part A Debts. In its written submissions at [12], White Oak explained:

The Policy defines “Loss” as an amount that is net of amounts “actually paid by the Customer or on its behalf in respect of such Asset”. White Oak accepts that the [USD]41.5 million reduces its “Loss” in respect of payment obligations of LCL, considered as “Debts” of LCL as a “Customer” under the Policy. There is a dispute between IAL and White Oak as to whether the [USD]41.5 million also reduces White Oak’s “Loss” in respect of the accounts receivable sold to GCUK by LCL, considered as “Debts” of the underlying account debtors (as distinct “Customers” under the Policy).

43    In addition to the issues mentioned above, the quantum of White Oak’s “Loss” under the policy is relevant. As noted earlier, there is a dispute between IAL and White Oak as to whether the USD41.5 million reduces White Oak’s “Loss” in respect of the accounts receivable sold to GCUK by LCL, considered as “Debts” of the underlying account debtors (as “Customers” distinct from LCL under the policy) – see also: T16.4–14.

44    IAL submitted that it cannot tell from the terms of the Settlement Agreement whether LCL has repurchased the Purchased Receivables or any part of them. If it has, then White Oak would no longer hold the Purchased Receivables and its case against IAL for the Part A Debts could not succeed. IAL contended that the Group 2 documents could be relevant to this issue or to construing the Settlement Agreement. The Court was not taken to any part of the Settlement Agreement which suggested that LCL repurchased the Purchased Receivables or which might give rise to that possible construction. The Court was not taken to any provision of the Settlement Agreement which was relevantly ambiguous to which the Group 2 documents, known to the contracting parties, might be relevant.

45    The Group 2 documents are not directly relevant to any issue in the proceedings.

Without prejudice privilege

46    As the Group 2 documents are not relevant, it is unnecessary to consider whether they are subject to WPP.

CONCLUSION

47    White Oak should be ordered to produce the Group 1 documents and IAL’s interlocutory application should otherwise be dismissed.

Associate:

Dated:    17 June 2026

SCHEDULE OF PARTIES