Acehill Investments Pty Ltd v Incitec Ltd

Judgment

1. By Originating Process filed on 28 August 2014, the plaintiff Tom Folino-Gallo & Sons Investments Pty Limited ("TFGS") sought orders under (CTH) Corporations Act 2001, s 247A, authorising it to inspect books and records of the defendant Tolco Pty Limited, in which it owns 50% of the issued shares.
2. Administrators were appointed to the defendant on 31 July 2015, shortly after the hearing, while judgment was reserved. Pursuant to Corporations Act 2001, s 440D, proceedings against the company were thereby stayed. Initially, the administrators took the position that no further steps should be taken in relation to the matter. TFGS submitted that s 440D did not stay the delivery of a reserved judgment, which it sought. Tolco by its administrators did not require a judgment, but left the matter in the hands of the court. In those circumstances, and being of the view that even if s 440D did not stay the delivery of a reserved judgment, it had the effect that no orders could be made without the administrators' consent or the leave of the Court, delivery of judgment was deferred pending the outcome of the administration. However, there having been no further communication from the parties or the administrators, this judgment will indicate the decision of the Court without, at least at this stage, making formal orders.
3. Tolco was incorporated on 28 February 2000. It conducts an engineering and construction business from Port Kembla. TFGS claims to have had an interest in Tolco since its inception, initially as a "silent partner". As a result of the then only registered shareholder and director, Mr Gabriel Zulian, denying this in late 2011, TFGS commenced proceedings ("the 2012 proceedings"), which were settled upon terms that included the issue to TFGS of a share representing 50% of the shareholding. Consequently, a share was issued to TFGS on 11 October 2013, and since then TFGS and Mr Zulian have each held one of the two issued shares in Tolco. Mr Zulian remains the sole director and secretary of Tolco.
4. Since the settlement of the 2012 proceedings and becoming a registered shareholder, TFGS has sought access to various documents of Tolco which, until these proceedings were instituted, was refused. By its application, TFGS sought authority to inspect: (a) documents, books and records of Tolco constituting or evidencing the transaction listed on the document entitled "Tolco Pty Ltd Loan Gabe Zulian Running Balance" including any entries that have been created after 11 December 2013, alternatively for the period from 30 June 2011 to date, (b) documents, books and records relating to the date on which the accounts for the year ended 30 June 2012 were completed and the date on which they were approved by the director, (c) documents, books and records concerning the written off debts in the year ended 30 June 2013, (d) documents, books and records evidencing, and evidencing communications relating to, the declaration and payment/recording of the dividend of $326,005 recorded as at 30 June 2012, (e) documents recording or evidencing arrangements between Tolco Pty Limited and Tolco Port Kembla Pty Limited, (f) documents, books and records evidencing payments to Tolco Port Kembla Pty Limited by Tolco Pty Limited, (g) documents, books and records evidencing the basis on which Tolco Pty Limited is liable to make such payments, (h) documents, books and records constituting or evidencing arrangements between Tolco Pty Limited and Lighteng Pty Limited, (i) documents, books and records evidencing payments to Lighteng Pty Limited by Tolco Pty Limited, (j) documents, books and records evidencing the basis on which Tolco Pty Limited is liable to make such payments to Lighteng Pty Limited, (k) documents, books and records evidencing the acquisition of assets acquired by Tolco Pty Limited pursuant to the Deed of Company Arrangement in 2000, (l) documents, books and records evidencing whether and how assets acquired pursuant to the Deed of Company Arrangement have been accounted for in the books and records of Tolco Pty Limited, (m) the original memorandum and articles of association of Tolco Pty Limited and documents recording all changes thereto.
5. In addition, Tolco sought leave at the hearing to amend the originating process, to add a further category: (n) records that identify employees and contract labour and where their time was spent including without limitation their location and allocation of their time in the records of Tolco in the period from 29 May 2009 to date.
6. Corporations Act, s 247A, relevantly provides as follows: 247A Order for inspection of books of company or registered managed investment scheme (1) [Court order for inspection on application of member] On application by a member of a company or registered managed investment scheme, the Court may make an order: (a) authorising the applicant to inspect books of the company or scheme; or (b) authorising another person (whether a member or not) to inspect books of the company or scheme on the applicant's behalf. 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. (2) [Copies of inspected books permitted unless contrary to court order] A person authorised to inspect books may make copies of the books unless the Court orders otherwise.
7. As defined in Corporations Act, s 9, "books" includes a register, any other record of information, financial reports or financial records, however compiled, recorded or stored, and a document. If, inspection having been authorised, it is refused, the court can then make an order under Corporations Act, s 1303, compelling immediate inspection. [1]
8. As a member of Tolco, TFGS has the requisite standing to apply for an order under s 247A. The essential issue is whether the Court is satisfied that TFGS is acting in good faith and that the inspection is to be made for a proper purpose. TFGS's purpose may be ascertained, in respect of the various categories of documents described in the application, from its submissions and the evidence of its director, Mr Folino-Gallo.
9. Paragraphs 1(a) through (d) of the application relate to Mr Zulian's loan account, and a dividend declared as at 30 June 2012. That loan account has had credited to it a dividend declared with effect from 30 June 2012. TFGS is concerned that the dividend may have been declared in breach of Corporations Act, s 254T, and thus that Mr Zulian's loan account may have been inappropriately credited. In addition, TFGS wishes to verify any other transactions on his loan account. Tolco submits that, apart from the 30 June 2012 dividend, there is no evidence of any matter which would require investigation in respect of the loan account; that TFGS was (on 10 October 2014) provided with the date on which the accounts were approved, so that paragraph (b) is of no further utility; that the contention that the bad debts should all have been written off in 2012 is speculative; and that as the plaintiff's expert has already opined that the dividend should not have been declared, no inspection of documents is necessary.
10. Paragraphs 1(e) through (g) relate to dealings between Tolco and Tolco Port Kembla ("Tolco PK"), a company that operates from the same address and uses the same telephone number but is wholly owned by Mr Zulian, and to which it appears that a standard payment of $55,000 per month has been remitted by Tolco over several years. There is a suggestion that Tolco has paid substantial sums for machinery that is not reflected in its current assets, but may be held by Tolco PK. If so, Tolco may have a claim in respect of that machinery against Tolco PK and/or Mr Zulian. Tolco objects that these categories are unlimited in time and exceedingly broad in their terms, and that the supporting allegations that Tolco PK appears to be the same business as Tolco, and expressions of concern about profit or asset stripping, are mere unsubstantiated assertions.
11. Paragraphs 1(h) through (j) of the application relate to dealings between Tolco and Lighteng, which appears to have billed Tolco $197,476 between 26 September 2004 and 28 November 2004, and $131,507 between February to March 2010. Lighteng apparently provided administrative staff to Tolco between 2003 and 2013. TFGS contends that in circumstances where a substantial part of administrative employment was contracted out, it will be necessary to investigate the dealings between Tolco and Lighteng to understand labour costs and the accounts. Tolco objects that these categories are unlimited in time, exceedingly broad and in the nature of impermissible discovery; that as Mr Folino-Gallo had already been able to form the view that the payments to Lighteng were "out of proportion" and "not within acceptable variances", there was no requirement for inspection of documents; and that merely wanting to investigate, like general curiosity, was insufficient reason for making an order. [2]
12. Paragraphs 1(k) and (l) relate to documents concerning the acquisition by Tolco of the business and assets of its predecessor under a deed of company arrangement ("DOCA") dated 1 March 2000, which were as at 3 December 1999 valued at $1,127,245 market value and $639,126 realisable auction value, but do not appear in Tolco's balance sheet. Tolco has explained that the assets were the subject of a sale and lease-back transaction between Tolco and GE Capital and that there is nothing to suggest that this was irregular. TFGS contends that insufficient detail has been provided to sustain this. TFGS wishes to investigate the documentation to ascertain what, if any, assets should be held by Tolco. Tolco submits that it has been explained that there was a sale and lease-back to GE Finance in April 2000; that no objective basis for intervention is established; and that the expressed concern that the DOCA assets may never have been received by Tolco is no more than speculation.
13. Paragraph 1(m) seeks the memorandum and articles. These were provided to TFGS on 20 May 2015.
14. Paragraph 1(n) of the application, sought to be added by amendment, relates to a suggestion that Tolco's resources - in particular, employees and contractors - have been used otherwise than for the benefit of Tolco. Tolco objects that this amendment is late, and that the category is oppressively wide, and in the nature of discovery and fishing.
15. Both parties referred to the judgment of Debelle J in Acehill Investments Pty Ltd v Incitec Ltd [3] in which his Honour distilled from the cases the following propositions relevant to the exercise of the discretion to authorise inspection under s 247A, to which reference has frequently been made in this context [4] (citations omitted): 1. The requirement that the applicant is acting in good faith and that the inspection is to be made for a proper purpose expresses a composite notion and the court will determine whether each has been demonstrated by applying an objective test. 2. The onus is on the applicant to demonstrate that he is acting in good faith and that the inspection is for a proper purpose. 3. The section operates where the applicant seeks to protect some specific or a personal right by the making of the order. Examples are where a shareholder contemplates proceedings under s 233 of the Corporations Act (the statutory successor of s 320 of the Companies Code) ... or where a shareholder reasonably takes the view that a transaction could adversely affect his investment and he seeks to investigate the transaction for the purpose of determining what action he should take ... or where a shareholder seeks to ascertain facts for the purpose of considering a takeover offer ... 4. If the applicant's primary or dominant purpose is a proper purpose, it is not to the point that an inspection may be of benefit to the applicant for some other purpose ... 5. The rights provided by s 247A should not be regarded as affecting the basic rule of company law that a shareholder should not ordinarily have recourse to the courts to challenge a managerial decision made by or with the approval of the directors. 6. Since every shareholder has a right to apply under the section for an inspection order, it is no answer to an application that, if an order is made, the applicant may acquire information not available to other shareholders and thereby be in a more advantageous position than those shareholders. 7. Applicants do not necessarily lack a proper purpose merely because (a) they are hostile to other directors; or (b) they will, after inspection, have more information than other members. 8. 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 the documents such as board papers leading to decisions ... I emphasise that this is a general rule. There may be occasions where it is proper to admit inspection of board papers ... 9. Even where an applicant is acting bona fide and has shown a proper purpose, the court has a discretion whether to order inspection.
16. Those propositions embody, as it seems to me, three main considerations: first, that the applicant must demonstrate that it is acting in good faith and that the inspection is to be made for a proper purpose, which is judged objectively; secondly, that the procedure is not intended to be in the nature of discovery; and thirdly, that the remedy is in any event discretionary.
17. The delineation of proper from improper purposes is assisted by a comparison of cases in which proper purpose has been established and those in which it has not. [5] The following have been accepted as proper purposes: 1. To allow a member to investigate prima facie irregularities in the company's financial accounts or transactions - for example, the creation of parallel financial records, [6] or a loan transaction between companies with a large number of common directors. [7] 2. To allow a member to investigate the conduct of the directors in relation to 'the whereabouts and commercial benefit [to] the company of the profit and cash flow' of the company for certain periods. [8] 3. To allow a member to investigate other reasonably suspected breaches of duty. [9] 4. To allow a member to value the members' shares, so as to: (i) negotiate a fair exit price from the company, [10] or (ii) to examine the effect of a corporate debt transaction on the value of the shareholding. [11] 5. To allow a member to prosecute a proceeding to enjoin the holding of an extraordinary general meeting on the ground that the company directors will have failed to discharge their duty of disclosure to their shareholders. [12] 6. To allow a member of a corporation holding property in an apartment block in which all members reside to investigate board decisions regarding the conduct of litigation by the corporation. [13]
18. Inspection has been refused where the purpose has been: 1. To ascertain the value of the equity of redemption in respect of a mortgage issued over the member's share by investigating the exercise of rights between mortgagor and mortgagee. [14] 2. To outflank a claim for client legal privilege made (or anticipated) over the company's books [15] or to serve as a substitute for discovery. [16] 3. To obtain confidential information for a competitor to the company. [17] 4. To improve the chances of a take-over bid. [18] 5. To ascertain whether the corporation is solvent (a finding which should be attended by some doubt if it is intended to state a general principle). [19]
19. From that comparison, it emerges - perhaps unsurprisingly - that authority to inspect has been refused where the purpose is unrelated to the interests of the member qua member, or savours of an abuse of process, but has been granted where the purpose is connected with the member's interest qua member and is not vexatious.
20. TFGS, by its director Mr Folino-Gallo, says that he is contemplating an application for leave to bring proceedings on behalf of and in the name of Tolco in respect of any reasonably available cause of action against any person; that he is concerned to ascertain whether there has been "asset or profit stripping", to "verify" Mr Zulian's loan account and investigate whether the 30 June 2012 dividend was paid in breach of Corporations Act, s 254T; and to ascertain the alternatives available to him to exit his investment in Tolco. TFGS submitted that it was not required to identify the precise case of misconduct or maladministration that it seeks to investigate, and that it was sufficient that it wished to "investigate the books and records relating to a limited number of unusual and suspicious transactions and dealings…so as to permit our client and its accounting and legal advisers to understand the detail of these transactions". Those purposes are plainly connected with TFGS's interest as a member and are prima facie proper purposes.
21. However, Tolco submitted authority to inspect should be refused, on the grounds that: 1. the evidence relied on by TFGS was "mere assertion and unsubstantiated subjective belief inadequate to establish any proper basis for inspection", and that with the possible exception of the 30 June 2012 dividend, no particular claims had been identified nor any reasonable or objective ground for any potential investigation of them established. Without conceding that there was any basis for any claim or investigation concerning the dividend, Tolco submitted that TFGS was self-evidently in a position to identify a potential claim without the need for any further inspection; and 2. the categories of documents sought by TFGS were "far too wide and in the nature of general discovery".
22. At the core of Tolco's first objection was the proposition that TFGS must establish "some reasonable ground for believing that misconduct or maladministration (or whatever else is suggested" or "past or future wrongful or other undesirable conduct" had taken place, on some objective basis). For this proposition, Tolco invoked Smartec (at [64], citing Praetorin at [39] to the effect that there needs to be 'some objective basis' for intervention); Praetorin (at [94], to the effect that the requirement that before granting preliminary discovery the court must be satisfied that the applicant may be entitled to make a claim for relief means that there must be some tangible support that takes the existence of the alleged right beyond mere 'belief' or 'assertion' by the applicant); and Motasea (at [51], [20] to the effect that in an application by a director under Corporations Act, s 198F, the factual background must be established by more than unsubstantiated assertion, a mere desire to investigate something being insufficient).
23. However, in the context of a member's inspection under s 247A, the principles applicable on applications for preliminary discovery [Praetorin at [94]] or applications by directors under s 198F (which provides that a director may inspect the books of the company for the purposes of a legal proceeding to which the person is a party; or which that person proposes in good faith to bring; or which that person has reason to believe will be brought against him or her) [Motasea at [51]; Boulos at [31]] are of limited relevance, because such applications are necessarily ancillary to pending or contemplated proceedings for substantive relief, whereas authority for a member to inspect documents under s 247A does not depend on there being any pending or contemplated proceedings. As Barrett J observed in Smartec, the words "in good faith" and "for a proper purpose" in s 247A are not confined by reference to some cause of action or legal wrong, but are at large. [21] The touchstone of the discretion is "what the court ought to require that the company tell its shareholder". [22] While it is a relevant consideration that there is a specific dispute rather than general dissatisfaction with management, an application should not be necessarily be refused because it is grounded on general dissatisfaction with management, and the extent and value of the applicant's personal interest is a relevant consideration. [23] Thus, I do not accept that an order under s 247A can be made only where some reasonable ground can be established, on an objective basis, for believing that there has been or will be some particular misconduct, maladministration or other wrongful or undesirable conduct.
24. While the evidence and the submissions, both written and oral, tended to traverse the various categories on an issue by issue basis, in this case it is helpful to take a more general view. In this case, the size and nature of the applicant's interest, mentioned by Bryson AJ in Rowland v Meudon as a relevant consideration, is of considerable significance. TFGS holds 50% of the issued capital in Tolco, which is a closely held company - an incorporated quasi-partnership. It became a registered shareholder following a dispute as to whether it was in effect a silent partner; the outcome of the 2012 proceedings reflected substantial success for TFGS in that contention. The only director is the other shareholder, who had denied that TFGS had that interest. TFGS now entertains concerns that, through declarations of dividend, loan account transactions, intercompany dealings and use of employees and contractors, Mr Zulian and/or his associates may have obtained benefits from Tolco in excess of those to which he was lawfully entitled, to the detriment of TFGS. In order to ascertain whether there is substance in those concerns, TFGS desires to inspect books of Tolco.
25. There is an enormous difference in this context between the position of a small shareholder in a large public listed company, where there are many protective governance measures in place, with that of a 50% shareholder in a small private company in which the sole director is the other 50% shareholder. In the former situation, the expectation of the maintenance of an informed market and investor body is underwritten by the continuous disclosure regime which is administered by ASX; the need for a single investor to have access to company documents is likely to be greatly reduced by the existence of that regime. [24] In the latter situation, however, there is no such regime, and a prudent shareholder would periodically inspect the company books, and a reasonable director ought to allow it - there is effectively no other means by which the shareholder can exercise due diligence in respect of the investment. In the context of Tolco's history and ownership, it ought to make its books and records readily and extensively available to its 50% shareholder TFGS, having vindicated its shareholding, to review to the extent it wishes the conduct of the company affairs under the management of the sole director.
26. However, the form of orders sought by TFGS savours of imposing on Tolco an obligation in the nature of discovery. The function of an order under s 247A is to authorise a shareholder to inspect a company's books - not to require a company to undertake an exercise of discovery. [25] Authority to inspect books of a company does not involve imposing on the company an obligation to examine its own books to form a judgment whether particular documents do or do not relate to a particular issue or subject matter. Orders under s 247A should be framed so as to identify particular books or classes of books (such as minutes, cash books, wages books, correspondence registers, cheque books, or MYOB records), for defined periods where appropriate, rather than issues or topics to which documents may relate - since the latter impermissibly requires the company to undertake an exercise in the nature of discovery. Only paragraph (m) of the orders sought does this, and the documents referred to in it have already been provided.
27. My conclusions may be summarised as follows. In the context of Tolco's history and ownership, it ought to make its books and records readily and extensively available to its 50% shareholder TFGS, having vindicated its shareholding, in order that TFGS may review, to the extent it wishes to do so, the conduct of the company's affairs under the management of the sole director. However, the form of orders sought by TFGS savours of imposing on Tolco an obligation in the nature of discovery. Accordingly, while I would be disposed to make an order under s 247A authorising TFGS to inspect books of Tolco, I would not make an order in the form sought in the application. If the application is to be pressed, and subject to the impact of any statutory stay, the plaintiff should bring in short minutes more appropriately specifying the books which it wishes to inspect, in a form which identifies the relevant books or classes of books, and does not require the defendant to undertake a process akin to discovery.
28. Having published these reasons, my only order is: 1. the proceedings be adjourned to 22 August 2016 in the Corporations Judge directions list.

Endnotes

1. Cf In the matter of Motasea Pty Ltd [2014] NSWSC 69 at [50].
2. Boulos v Carter (2005) 54 ACSR 827 at [31]; cf Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495 at [87].
3. [2002] SASC 344 at [29]
4. See, for example, Re Style Ltd; Merim Pty Ltd v Style Ltd [2009] FCA 314; (2009) 255 ALR 63 (Goldberg J); Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237; (2009) 76 ACSR 236 at [36]-[39] (Barrett J); Smartec at [64] (Barrett J).
5. These are collected in Christos Mantziaris, "The member's right to inspect the company books: Corporations Act, s 247A" (2009) 83 ALJ 621, quoted by Le Miere J in Snelgrove v Great Southern Managers Australia Ltd [2010] WASC 51 at [66] and by Barrett J in Smartec at [66] and [67].
6. Vinciguerra v MG Corrosion Consultants Pty Ltd [2007] FCA 503; (2007) 61 ACSR 583.
7. Cescastle Pty Ltd v Renak Holdings Ltd (1991) 6 ACSR 115.
8. United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 404 at [27], [29]-[30]; Vinciguerra v MG Corrosion at [57]-[59], [64], [66].
9. Barrack Mines Ltd v Grants Patch Mining Ltd (1987) 12 ACLR 357 (affirmed Barrack Mines Ltd v Grants Patch Mining Ltd [No 2] [1988] 1 Qd R 606); McNeill v Hearing & Balance Centre Pty Ltd [2007] NSWSC 942 at [17]; Humes Ltd v Unity APA Ltd [No 1] [1987] VicRp 42; [1987] VR 467 ; (1986) 11 ACLR 641.
10. Tinios v French Caledonia Travel [1994] FCA 1154; (1994) 13 ACSR 658.
11. United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 404 at [20]-[23]; see also United Rural Enterprises Pty Ltd v Lopmand Pty Ltd (2003) 45 ACSR 271; [2003] NSWSC 405.
12. ENT Pty Ltd v Sunraysia [2007] NSWSC 270; (2007) 61 ACSR 626 at [79]; [2007] NSWSC 270.
13. Rowland v Meudon [2008] NSWSC 381; (2008) 220 FLR 362; 66 ACSR 83.
14. United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 404, [24]-[26], [10].
15. Czerwinski v Syrena Royal Pty Ltd [No 1] (2000) 34 ACSR 245; [2000] VSC 125; Keenfern Pty Ltd v Thorlock International Ltd (2002) 20 ACLC 1322 at [6]; [2002] WASC 142.
16. Rowland v Meudon at [38]; Re Claremont Petroleum NL [No 2] [1990] 2 Qd R 310 at 314; Czerwinski v Syrena Royal.
17. Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151; 7 ACLC 536.
18. Garina Pty Ltd v Action Holdings Ltd (1989) 7 ACLC 962.
19. Keenfern v Thorlock International.
20. See also Boulos v Carter at [31].
21. Smartec at [65].
22. Rowland v Meudon at [41] (Bryson AJ), referring to Re Claremont Petroleum NL (No. 2) [1990] 2 Qd R 310 (McPherson J) and Czerwinski v Syrena Royal (Warren J); Re Style Ltd; Praetorin at [36]; Smartec at [64], [68].
23. Rowland v Meudon at [35], adopting Re Claremont Petroleum NL [No 2] [1990] 2 Qd R 310 (McPherson J); Smartec at [65].
24. Smartec at [76].
25. Acehill Investments v Incitec at [29]; Rowland v Meudon at [38]; Re Claremont Petroleum NL [No 2] [1990] 2 Qd R 310 at 314; Czerwinski v Syrena Royal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2016