In the matter of Nielsen & Moller Autoglass (NSW) Pty Limited (in liq) ; Geoffrey James Rankine & Anor v John Frederick Lord & Anor

In the matter of Nielsen & Moller Autoglass (NSW) Pty Limited (in liq) ; Geoffrey James Rankine & Anor v John Frederick Lord & Anor - [2008] NSWSC 1197 - NSWSC 2008 case summary — Zoe

[36]

Undertake such other or further matters in relation to the liquidation and affairs of the First Defendant as the Court considers appropriate." 4 I shall refer to those paragraphs of the order appointing the liquidators which describe their powers and functions as "the appointment order". 5 On 26 August 2008 the liquidators moved a Registrar of the Court, and obtained, ex parte, orders for production of documents by the Rankines by 12 September 2008 ("the Orders"). 6 The documents required to be produced under the Orders are described in a lengthy schedule to each of them which is reproduced as Appendix A to this judgment (personal details which have no bearing on the present application having been deleted). 7 References below to paragraphs of the Orders are references to paragraphs in Part 3 of the schedule to the Orders. 8 The Orders include a prefatory note ("the prefatory note") in the following terms: " Note: If privilege is claimed, the records are to be separately listed and described with the relevant point of privilege claimed noted and produced in a separate sealed envelope marked 'Privileged Documents'. Points of privilege : (a) Documents brought into existence for the dominant purpose of enabling a solicitor to give and produce legal advice. (b) The advice itself. (c) Communication between a solicitor and his client for the dominant purpose of enabling the giving of advice. (d) Settlement negotiations 'without prejudice' privilege. (e) Communications from the client to a solicitor and vice versa for the dominant purpose of which is in the preparation and conduct of: (i) anticipated proceedings; (ii) contemplated proceedings; (iii) existing proceedings." 9 On 27 August 2008 summonses were issued under ss 596A and 596B of the Corporations Act 2001 (Cth) for the Rankines to attend before the Court on 13 October 2008 to be examined about the examinable affairs of the Company "insofar as those examinable affairs concern or relate to one or more of the 19 matters identified in paragraphs 1 to 19" of the appointment order. 10 Production of the documents as required by the Orders has not yet occurred and the proposed examinations have been adjourned until later in the year. THE CHALLENGES BY THE RANKINES 11 By amended interlocutory process the Rankines move to set aside: a the whole of the Orders on the basis that they are oppressive and an abuse of process; b alternatively paragraphs 2, 4(b)(xii), 4(h), 4 (presumably where second appearing), 7, 8(c)-(e), 9(b)(ii)-(iii), 9(c), 14(a)(ii)-(vi), 14(b)(ii)-(vi), 14(c)(ii)-(vi), 14(d)(ii)-(vi), 15(d), 15(g), 15(h)(iv)-(v), 15(i)(iv)-(v), 15(j)(ii)-(iv), 15(k)(ii), 15(k)(iv)-(v), 15(l)(ii), 15(l)(iv), 15(l)(v), 16(a), 16(b)(iii) and 19 of the Orders on the basis that they seek production not authorised by the appointment order; c alternatively paragraphs 5, 6, 7, 8, 9, 10 and 11 of the Orders on the basis that they call for production of material which is the subject of client legal privilege. 12 There was brief oral argument but the parties' submissions were made primarily in writing. 13 The first and second grounds relied upon overlap to a significant extent. 14 I will deal firstly with the challenge to the whole of the Orders, secondly with what then remains to dealt with of the challenge based on the Orders going beyond what was authorised by the appointment order, and thirdly with the privilege challenge. 15 To begin with it is necessary to refer to the statutory provisions pertinent to the issue of orders for production where they are made ancillary to examinations under ss 596A and 596B of the Corporations Act 2001. THE RELEVANT ENACTMENTS 16 The relevant jurisdiction in this State to order attendance at Court and production of documents is contained in s 68 of the Civil Procedure Act 2005 (NSW) ("CPA") which is in the following terms: " 68 Attendance at court and production of documents and things to court (cf Act No 9 1973, section 64; Act No 11 1970, section 72; SCR Part 36, rule 12)

[45]

For the purposes of the definition of examinable affairs in section 9, section 53AA, 232, 233 or 234, paragraph 461(1)(e), section 487, subsection 1307(1) or section 1309, or of a prescribed provision of this Act, the affairs of a body corporate include: (a) the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and (b) in the case of a body corporate (not being an authorised trustee corporation) that is a trustee (but without limiting the generality of paragraph (a)) - matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust; and (c) the internal management and proceedings of the body; and (d) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when: (i) a receiver, or a receiver and manager, is in possession of, or has control over, property of the body; or (ii) the body is under administration; or (iia) a deed of company arrangement executed by the body has not yet terminated; or (iii) a compromise or arrangement made between the body and any other person or persons is being administered; or (iv) the body is being wound up; and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator of the body, of an administrator of such a deed of company arrangement, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body; and (e) the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body; and (f) the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the body or to dispose of, or to exercise control over the disposal of, such shares; and (g) matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body; and (h) the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests in a managed investment scheme made available by, the body; and (j) where the body has made available interests in a managed investment scheme - any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and (k) matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in a preceding paragraph." 23 There was no issue between the parties that the Orders were made under s 68 of the CPA ancillary to the summonses for the examination of the Rankines issued on 27 August 2008. THE CHALLENGE TO THE WHOLE OF THE ORDERS The arguments 24 The thrust of the challenge to the entirety of the Orders is that as a whole they are "utterly confusing" and create "a large number of obligations which are either entirely inconsistent or otherwise incomprehensible". It was put that the vice arises from the repetitive form of many of the paragraphs and the cascading nature of paragraphs and subparagraphs within them. 25 More particularly the submission was put in the following terms: "Paragraph 2 of the Order requires production of all Financial Documents 'of and concerning Nielsen and Moller'. In light of the width of that Order, what is to be understood by the multiple subcategories of documents described in paragraphs 3 (given the definition of Rankine loan); 4(a); 4(b)(iii), (iv), (v), (vi), (vii) etc? Similarly, what is the recipient of the Order to make of the relationship between the documents sought in paragraphs 3 and 4(e) or 15(i)(i). This vice effects [sic] virtually every paragraph in the Order. The ordinary reader would assume that each paragraph of the Order is intended to convey some separate category of documents which are required to be produced. That lawyers might be able to understand the relationship between the various subparagraphs does not save the document which should clearly and unequivocally describe, in a way which is comprehensible to the ordinary reader, the obligation which it imposes."

[52]

Consideration 30 The Orders plainly have extraordinary width. The vast majority of the categories of documents called for have no time limitation. 31 Paragraph 1 captures "All Documents of Nielsen & Moller", without any time or subject limitation. 32 The Concise Macquarie Dictionary (4th Ed) defines "of" in the relevant sense as "belonging or possession, connection or association". 33 Paragraph 1 covers all "Documents" as defined which are the property of the Company. It also covers, in my view, all "Documents", even if not its property, which are in its possession, custody or control. 34 "Document" is defined in the Orders to include amongst others: "(e) any other record of information including electronically maintained, whether in a hard drive, on a server or on a back up system, whether externally maintained or on a back up disk, where a hard copy can be printed out or recorded or reproduced on a disk; and (f) anything from which writing can be reproduced with or without the aid of anything else." 35 Paragraph 1 read with the definition of "Document" operates conceivably to capture every document which has been brought into existence by or on behalf of the Company during the course of its entire existence without any regard to subject matter. 36 It requires documents to be produced without there having to be any discernible connection with the specific powers and functions of the liquidators. 37 Paragraph 1 is oppressive because it is too wide. It is also beyond the powers conferred on the liquidators whose functions and powers are directed to specific subjects. No submission to the contrary was made. 38 Paragraph 2 of the Orders requires production of "All Financial Documents of or concerning Nielsen & Moller", without any time or subject limitation. 39 "Financial Document" is defined very widely. Part of the definition is as follows: "any record of financial information [including]: … (h) anything from which writing can be reproduced with or without the aid of anything else; (i) any other record of financial information including electronically maintained, whether in a hard drive, on a server or on a back up system, whether externally maintained or on a back up disk, where a hard copy can be printed out or recorded or reproduced on a disk." 40 Self-evidently "All Documents of Nielsen & Moller" must comprehend and include the narrower category of "All Financial Documents of or concerning Nielsen & Moller". 41 Paragraph 2 requires production of every document containing financial information which is presumably any document containing any reference to money. It too is oppressive because of its width and uncertainty. It too goes beyond the ambit of the liquidator's powers and functions. 42 With respect to the width of the Orders in the context of the liquidators' powers and functions, it was put on behalf of the liquidators that paragraphs 2-4, 5-7, 9, 13-18 and 21-23 of the appointment order justify the width of paragraph 2 of the Orders. 43 This submission overlooks the fact that those paragraphs of the appointment order have a subject matter limitation, whereas paragraph 2 of the Orders (like paragraph 1) does not. 44 The liquidators put further that the fact that the Court (by its Senior Deputy Registrar) had issued the Orders itself meant that the Court has, pursuant to paragraphs [21] and [25] of the Schedule, empowered the liquidators to obtain the documents in the terms of the Orders as ancillary to the examinations and that the Court had done so after giving consideration to the liquidators' affidavit of reasons and documents exhibited to it. 45 This submission is unsound because: a the summonses for examination on their face permit the Rankines to be examined about the examinable affairs of the Company "insofar as those examinable affairs concern or relate to one or more of the 19 matters identified in paragraphs 1 to 19". The Orders are ancillary to the summonses and the scope to order production depends on the scope of the examination which is ordered: Re Southland Coal Pty Ltd (recs and mngrs appt) (in liq) (2006) 58 ACSR 113 ("Re Southland Coal") at [38]; and b paragraph 2 was (as was the whole of the Orders) wrongly made. 46 Together paragraphs 1 and 2 cover every document belonging to, in the possession of, under the custody and control of or having any connection with the Company, without it being possible to discern with any degree of certainty any distinct field of operation of either paragraph. They are clearly insupportable. 47 This difficulty plagues numerous other paragraphs in the Orders which refer to "all Documents and all Financial Documents" or "all Documents" or "all Financial Documents". 48 Additionally given the width of paragraphs 1 and 2, the remaining paragraphs and dozens of subparagraphs have no field of operation which is otherwise not covered. This results in the recipient being faced with the impossible and fruitless task of attempting to discern the operation of a large number of paragraphs which are surplusage. 49 In my view it is neither possible nor appropriate to attempt to sever from the whole any limb which has meaningful and appropriate operation. 50 None of the submissions made by the liquidators meet these difficulties. 51 The Orders objectively construed are too wide and too uncertain to stand, irrespective of Mr Rankine's subjective or perceived lack of difficulty with them. Even less is his subjective position relevant to their purported effect beyond the powers of the liquidators. 52 The width of the statutory definition of "examinable affairs" does not assist the liquidators. They have been given specific powers and functions which relate to matters which are within the examinable affairs of the Company. The fact that the statutory definition of examinable affairs is wider (as it must be) than the matters to which their specific powers and functions relate cannot expand their authority. In addition the Orders in their present form would be objectionable even if the liquidators' powers and functions were not limited and applied to the examinable affairs of the Company to their fullest extent. 53 In my view the Orders should wholly be set aside. 54 Careful consideration should be given by the liquidators to the form of any further orders for production which are to be sought. I mention as an example subparagraph (f) of the definition of "Financial Document" which requires the recipient to determine what documents are: " needed to explain : (i) the methods by which financial statements are made up; (ii) adjustments to be made in preparing financial statements; and (iii) an annual financial report or a half yearly financial report" (emphasis added) 55 This form of description (in my view impermissibly) requires the recipient to determine what is needed to explain to an unidentified explainee, presumably to a level enabling that hypothetical explainee to attain understanding. This is oppressive.

[53]

THE CHALLENGE TO PARTICULAR PARAGRAPHS AS GOING BEYOND THE APPOINTMENT ORDER 56 A separate attack was made on a number of specific paragraphs as not being authorised by the appointment order. The particular paragraphs were identified in submissions (being somewhat different to the paragraphs identified in the amended interlocutory process), as follows: a paragraphs 4(b)(xii) and 4(h) on the grounds that the appointment order does not mention the Sylvania property and there is no apparent link between that topic (as defined in the dictionary section of the Orders) and the matters specified in the appointment order; b paragraph 4 (presumably where it appears the second time) on the grounds that the Orders do not authorise an investigation or examination into the winding up "let alone require or authorise the production of the great wealth of documents actually or potentially caught"; c paragraphs 8(c)-(e) and 9(b)(ii)-(iii) and, therefore, 9(c) on the grounds that they are not limited by reference either to time or subject matter to matters identified in the appointment order; d paragraphs 14(a)(ii)-(vi) and the same subparagraphs in 14(b), (c), (d) and (e) "for the same reason as is 14(h)" (the reference to paragraph 14(h) appears to be in error - I have assumed it to be a reference to 4(h)); e paragraphs 15(d), (g), (h)(iv)-(v), (i)(iv)-(v), (j)(ii)-(iv), (k)(ii)-(iv), (l)(ii) and (v) "for the same reason"; f paragraph 16(a) because of its timeframe and the lack of any relevant connection of the documents sought to the affairs of Nielsen & Moller or the transactions identified in the appointment order (Nielsen & Moller was not incorporated until early 2004); g paragraph 16(b)(iii) because of the breadth of the definition of Documents and Financial Documents. They would, for instance, capture telephone bills, rates notices and all manner of documents sent to or received at the property which have nothing to do with the facts and circumstances identified in the appointment order; and h paragraph 19 because according to its terms, it appears to require "production of every single document that Southern Cross has ever had anything to do with". 57 It is not necessary to deal with those specific paragraphs having regard to my conclusion that the whole of the Orders should be set aside and that many of the particular paragraphs themselves contain the defect of requiring "All Documents" and "All Financial Documents" without any limitation as to time so that they should be set aside in any event. 58 Notwithstanding this, it is appropriate to comment on some of those paragraphs on the assumption that further properly framed orders for production will be sought seeking documents concerning the subject matter of those paragraphs. 59 I will deal with the particular paragraphs in the order in which they appear above: a the nature and value of assets of the Company (including the Sylvania property) are conceivably relevant to the solvency of the Company which the liquidators are to investigate and could properly be the subject of an appropriately framed order. b documents which are pertinent to the winding up proceeding may be appropriately sought provided they bear some specified relationship to the powers and functions of the liquidators. The unqualified request in the Orders does not meet this requirement. c a appropriately framed request for all resolutions of Southern Cross and documents directly concerned with the meetings which passed them would not be too wide or beyond the subject matter of the powers and functions of the liquidators given that Southern Cross was only incorporated on or about 21 December 2007 and paragraphs 11, 12, 13, 14 and 15 of the appointment order. Similarly a properly framed request for all resolutions of GDF Nominees Pty Ltd would be sustainable given paragraph 16 of the appointment order. d given the time limitation and paragraphs 1, 2, 3, 4, 5, 6, 7, 13, 14 and 15 of the appointment order an appropriately framed request for documents concerning the subject matters enumerated in paragraph 14 would be sustainable. e in their present unqualified form I do not consider that these paragraphs are sustainable. f given paragraph 19 of the appointment order a request for the documents enumerated in paragraph 16(a) of the Orders would, if limited to documents after the incorporation of the Company, be sustainable. g an appropriately framed request for documents concerning the Sylvania property would be sustainable. h paragraph 19 of the Orders in its present form is not sustainable because of its width and the absence of any specification of subject matter. There is force in the Rankines' submission that it appears to require "production of every single document that Southern Cross has ever had anything to do with". THE PRIVILEGE CHALLENGE 60 It is not in issue that the Orders expressly call for documents which will be the subject of claims for legal privilege. 61 The predecessor to s 68 of the CPA, SCR Pt 36 r 36.12, was in the following terms: " 36.12 Attendance and production

[64]

[6] Mr P.B. Walsh of counsel, who has appeared for the liquidator this morning, has outlined a regime which would achieve that purpose and be consistent with the parameters which the Court of Appeal has indicated. That regime is embodied in the orders which I now make as follows: 1. The liquidator must not later than 14 July 2006 serve the amended interlocutory process filed on 6 July 2006 on each of the persons mentioned in paragraphs 3(j), 3(k), 3(l) and 3(n) thereof, together with a separate affidavit going to the basis of the contention that each such person is within s 596B of the Corporations Act vis-à-vis the winding up of Hypec Electronics Pty Limited. 2. Subject to service being effected in accordance with order 1, any affidavit of any of the persons concerned seeking to set out the basis on which production of documents would be resisted on the ground of client legal privilege or legal professional privilege is to be served on the liquidator by 21 July 2006. 3. The amended interlocutory process be listed for mention before the Corporations Judge at 10 am on Monday 31 July 2006." 71 It follows that unless UCPR Pt 1 rr 1.8 and 1.9 have altered the position as it previously stood, the Orders should not have been made because they were made ex parte, and contrary to the holdings in Meteyard v Love and Hypec Electronics Pty Ltd (In Liq), they compel production to the Court of privileged material irrespective of whether there is objection. 72 Concomitantly the Orders do not provide a regime to enable any issue of privilege to be tested before production is required. 73 The liquidators put that the position under s 68 of the CPA and the UCPR is different to that which applied under the SCR and that the reasoning in Meteyard v Love no longer applies. 74 Attention was drawn to the difference in terminology between the present rule and the earlier one. 75 SCR Pt 36 r 36.13(2) provided that the Court "shall not compel … production of a document … until the Court directs that the production … shall not be prevented by this subrule …" 76 UCPR Pt 1 r 1.9(4) provides that a person objecting under subrule (3) "may not be compelled". It was put that the earlier rule was mandatory whereas this one is in more expansive terms and accordingly allows compulsion in a way that the earlier rule did not. 77 It was also put that there is an independent power under UCPR Pt 1 r 1.8(b) to require the document to be produced to enable the Court to determine the question of privilege. 78 In further support of this submission I was referred to the decision of Austin J in Re Southland Coal in which his Honour said at paragraph 80:

[65]

" [80] An order framed so as to exclude documents that the producing party would be entitled to withhold as privileged was made in Re Equiticorp Finance Ltd; Ex parte Brock (1992) 6 ACSR 725 and Basten JA contemplated the possibility of such an order in Meteyard : at [133]. But the Court of Appeal's reasoning does not mean that in every case, the order for production must contain such an express exclusion. The Uniform Civil Procedure Rules set out a procedure by which claims for privilege are to be made. As I have explained, the person to whom the order is directed may object to producing the document and once the objection is made, cannot be compelled to do so unless and until the objection is overruled. That is the position as a matter of law. If orders were made expressly excluding documents subject to client legal privilege, there would be a risk that the persons to whom the orders were directed would regard themselves as exonerated from taking any co-operative steps with respect to documents that they regarded as privileged, such preparing lists or even embarking on any process of review. At least in some cases, it may be preferable simply to add a note to the orders drawing the reader's attention to the relevant rules. But in my view it is unnecessary to take any such step in a fully contested inter partes matter where the parties are legally represented, and I do not regard the Court of Appeal as suggesting otherwise. In such a case an acceptable course, in accordance with the rules, is to make unqualified orders for production coupled with liberty to apply, which may be exercised for the purpose of giving directions designed to bring forward contested privilege claims for resolution, once specific documents have been identified and particular claims for privilege have been made in respect of those identified documents." 79 It was put that the procedure provided for in the prefatory note to the Orders was a permissible one under the UCPR, that it "constitutes adequate compliance with Austin J's approach" in Re Southland Coal and that the fact that the Orders were made on an ex parte basis was not a relevant feature given that the prefatory note made provision for privilege to be protected. 80 In my view far from effecting a change so as to facilitate the making of an order for production which requires privileged documents to be produced before any question of privilege is tested UCPR Pt 1 rr 1.9(3) and (4) solidify the position as it stood under SCR Pt 36 r 36.13 and determined by the Court of Appeal in Meteyard v Love. 81 UCPR Pt 1 r 1.9(4) makes it clear that a person objecting may not be compelled to produce until any objection to production on the grounds that a document is privileged is overruled. This means that compulsion is not permitted until the objection is overruled. 82 The existence of the independent power to order production of a document to resolve a privilege question supports rather than undermines this conclusion. It would not be needed if the Court could in any event require production under the terms of the order for production before the privilege question was determined. 83 The Orders made here compel production of privileged material irrespective of whether there is an objection based on privilege and continue to do so even if there is an objection. 84 The prefatory note to the Orders has the specific object of facilitating production even though privilege is claimed, directly contrary to UCPR Pt 1 r 1.9(4). 85 The reasoning of Basten JA that orders for production such as the present Orders should not be made ex parte where it may be anticipated that questions of privilege will arise or there should be exception for documents subject to privilege applies with no less force to the present case than it did in the circumstances considered by his Honour. 86 Accordingly the Orders should not have been made. 87 It is not necessary to deal with the question of severability having regard to my conclusion that the whole of the Orders should be set aside. 88 So far as Re Southland Coal is concerned, Austin J was dealing with a situation clearly distinguishable from the present. His Honour had before him an inter partes opposed application for orders for production. 89 Moreover the Orders in the present case (by reason of the prefatory note) require production contrary to the operation of the presently applicable rules. 90 There is an additional difficulty with the terms of subparagraphs (a), (c) and (e) of the prefatory note which incorrectly limit privilege to communications with and advice from solicitors rather than legal practitioners. 91 I consider that the reasoning in Meteyard v Love, which binds me, requires there to be in the case of an ex parte application where it is plain (as it is here) that the Orders will require production of privileged documents that it is necessary for the Orders to make specific provision to allow objection to production to be taken, and if that occurs, for its determination before production is compelled. 92 Thereafter the Court may in determining any privilege issue require the documents to be produced for inspection by it. 93 An appropriate mechanism which meets the requirements of the reasoning of the Court of Appeal in Meteyard v Love was implemented by Barrett J in Hypec Electronics Pty Ltd (In Liq). 94 Another appropriate mechanism might be for the order for production to make it clear that if an objection is taken to the production of privileged documents they need not be produced until the objection is determined and for there to be a date before production upon which such an objection is to be notified specifying any particular document to which objection is taken and the grounds. CONCLUSION 95 The order for production issued 26 August 2008 by Senior Deputy Registrar Musgrave to Mr Geoffrey James Rankine is set aside. 96 The order for production issued 26 August 2008 by Senior Deputy Registrar Musgrave to Mrs Karin Elke Rankine is set aside. 97 The liquidators are to pay the Rankines' costs of the application.

[115]

Part 3 You are to produce to the Court at the date, time and place stated herein this Order for Production and the original, or if there is none, a copy or photocopy, of the following and for that purpose please have regard to the above "Definitions" (Part 1 and Part 2): 1. All Documents of Nielsen & Moller. 2. All Financial Documents of or concerning Nielsen & Moller. 3. All Documents and all Financial Documents which record, evidence or concern: (a) any Rankine Loan; (b) the application by Nielsen & Moller of any Rankine Loan; (c) the terms of any Rankine Loan. 4. All Documents and all Financial Documents which record, evidence or concern: (a) the Rankine Charge; (b) any legal, financial, business or accounting advice given to or for the benefit of or requested by or for the benefit of one or more of Nielsen & Moller, Mr Rankine, Mrs Rankine, the Rankines as trustees of the Rankine Super Fund, Moller, Southern Cross, concerning: (i) the creation of or entry into the Rankine Charge; (ii) the validity or enforceability of the Rankine Charge; (iii) the exercise of rights under the Rankine Charge; (iv) the appointment of a controller to Nielsen & Moller or any of its assets; (v) the appointment of Mr Rankine as the controller to Nielsen & Moller, or any of its assets and exercise of rights and powers under the Rankine Charge; (vi) the transfer, assignment or sale of some or all of the assets and undertaking and/or some or all of the liabilities and creditors of Nielsen & Moller to: (A) a third party; (B) Southern Cross (including the assumption thereof) in or about December 2007 - February 2008; (vii) acts, conduct or other steps to effect the transfer, assignment or sale of some or all of the assets and undertaking and/or some or all of the liabilities and Creditors of Nielsen & Moller to Southern Cross (including assumption thereof) in about December 2007 - February 2008; (viii) the value of any or all of the assets and undertaking of Nielsen & Moller in or about December 2007 - February 2008; (ix) the value which should be attributed to February or all of the assets and undertaking of Nielsen & Moller to be the subject of the transfer, assignment or sale to Southern Cross in or about December 2007 - February 2008; (x) Mr Rankine's Guarantee; (xi) Mrs Rankine's Guarantee; (xii) the Sylvania Property; (xiii) the ANZ Account; (xiv) the NAB Account; (c) any market appraisal or valuation of, calculation or determination of the value, price or amount to be attributed to, any or all of the assets and undertaking, including goodwill, of Nielsen & Moller the subject of the transfer, assignment or sale to Southern Cross in or about December 2007 - February 2008; (d) the transfer, assignment or sale of some or all of the assets and undertaking and/or some or all of the liabilities and creditors of Nielsen & Moller to Southern Cross (including assumption thereof) in or about December 2007 - February 2008; (e) any demand made by the Rankines as trustees of the Rankine Super Fund for payment of any Rankine Loan; (f) Mr Rankine's Guarantee; (g) Mrs Rankine's Guarantee; (h) the Sylvania Property; (i) the ANZ Account; (j) the NAB Account. 4. All Documents and all Financial Documents relating to or concerning the Winding Up Proceeding. 5. All Documents which record, evidence or concern any legal, financial, business or accounting advice relating to or concerning the Winding Up Proceeding. 6. All Documents and all Financial Documents which record, evidence or concern: (a) any Nielsen & Moller Debt; (b) the terms of any Nielsen & Moller Debt; (c) any demand upon Nielsen & Moller for repayment of any Nielsen & Moller Debt; (d) any default or failure by Nielsen & Moller to repay any Nielsen & Moller Debt; (e) any request for, offer to or agreement to repay any Nielsen & Moller Debt over time or by instalments or to compromise the amount of such debt; (f) any legal proceedings in respect of any Nielsen & Moller Debt; (g) any legal, financial, business or accounting advice in relation to or concerning any of the matters in paragraphs (a)-(f) above. 7. All Documents and all Financial Documents which record, evidence or concern: (a) the: (i) incorporation of Southern Cross; (ii) acquisition by Mr Rankine of shares in Southern Cross; (iii) appointment of Mr Rankine as the sole director and secretary to Southern Cross; (b) any legal, financial, business or accounting advice in relation to or concerning any of the matters in (a) above. 8. All Documents which record, evidence or concern: (a) any charge or debenture which Southern Cross has given to any person or entity and the terms thereof; (b) all shares issued in and all shareholders (whether legal or beneficial) of Southern Cross; (c) all meetings of and all resolutions of directors of Southern Cross; (d) all meetings of and all resolutions of shareholders of Southern Cross; (e) any legal, financial, business or accounting advice in relation to or concerning any of the matters in (a)-(c) above. 9. All Documents which record or evidence: (a) the identity of any shareholder (whether legal or beneficial) and the number of shares held (whether legally or beneficially) at any time in: (i) Nielsen & Moller; (ii) Southern Cross; (iii) Nominees; (b) the holding of, discussion at and/or resolutions passed at any meeting of directors of or shareholders of: (i) Nielsen & Moller; (ii) Southern Cross; (iii) Nominees; (c) any legal, financial, business or accounting advice in relation to or concerning any of the matters in (a) and (b) above 10. All Documents and all Financial Documents which record, evidence or concern: (a) the financial position, financial circumstances, solvency or insolvency of Nielsen & Moller from 1 July 2006 until the appointment of the Liquidator; (b) any legal, financial, business or accounting advice in relation to the financial position, financial circumstances, solvency or insolvency of Nielsen & Moller, where such advice was given at any time on or after 1 July 2006 to or for the benefit of any one or more of: (i) Nielsen & Moller; (ii) Mr Rankine; (iii) Mrs Rankine; (iv) the Rankines as trustees of the Rankine Super Fund; (v) Southern Cross; (vi) Nominees. 11. All Documents and all Financial Documents which record, evidence or concern any legal, financial, business or accounting advice provided or given at any time on or after 1 July 2006 given to or for the benefit of any of: (a) Mr Rankine; (b) Mrs Rankine; (c) Moller, in relation to or concerning their duties as directors or officers (including as controller) of Nielsen & Moller and/or Southern Cross and/or the conduct or performance of those duties. 12. All Documents and all Financial Documents which record, evidence or concern any communications or dealings by or on behalf of Nielsen & Moller with the ATO in relation to or concerning: (a) payment by Nielsen & Moller of its tax liabilities, including but not limited to, any request for, offer to or agreement or arrangement with, Nielsen & Moller to pay such tax liabilities over time or on an instalment term basis; (b) any variation of any such agreement or arrangement referred to in (a) above; (c) any default by Nielsen & Moller of the performance of and compliance with the terms of any such agreement or arrangement referred to in (a) above. 13. All Documents and all Financial Documents which record, evidence or concern any communications or dealings by or on behalf of Nielsen & Moller with any supplier of Nielsen & Moller or other Creditor in relation to or concerning any request for, offer to or agreement or arrangement with Nielsen & Moller to pay outstanding indebtedness to such suppliers or other Creditors over time or by instalments. 14. All Documents and all Financial Documents which record, evidence or concern any communications or dealings at any time on or after 1 July 2006 with the ANZ, the NAB or any other financial institution in relation to or concerning: (a) any loan or facility to be provided to: (i) Nielsen & Moller; (ii) the Rankines as trustees of the Rankine Superannuation Fund; (iii) Mr Rankine; (iv) Mrs Rankine; (v) Rankines; (vi) Southern Cross; (b) the terms of any loan or facility provided to: (i) Nielsen & Moller; (ii) the Rankines as trustees of the Rankine Superannuation Fund; (iii) Mr Rankine; (iv) Mrs Rankine; (v) the Rankines; (vi) Southern Cross; (c) any request, offer or agreement or arrangement to vary the terms of any loan or facility provided to: (i) Nielsen & Moller; (ii) the Rankines as trustees of the Rankine Superannuation Fund; (iii) Mr Rankine; (iv) Mrs Rankine; (v) the Rankines; (vi) Southern Cross; (d) the failure of, or default by: (i) Nielsen & Moller; (ii) the Rankines as trustees of the Rankine Superannuation Fund; (iii) Mr Rankine; (iv) Mrs Rankine; (v) the Rankines; (vi) Southern Cross, to comply with the terms (including as varied) of any loan or facility; (e) any demand for or request of: (i) Nielsen & Moller; (ii) the Rankines as trustees of the Rankine Superannuation Fund; (iii) Mr Rankine; (iv) Mrs Rankine; (v) the Rankines; (vi) Southern Cross, for repayment of any such loan or facility; (f) Mr Rankine's Guarantee; (g) Mrs Rankine's Guarantee; (h) the Sylvania Property; (i) the ANZ Account; (j) the NAB Account. 15. Any file, including an electronic file, created, held or maintained, in relation to or concerning any one or more of: (a) Nielsen & Moller; (b) the ANZ Account; (c) the NAB Account; (d) Southern Cross; (e) Mr Rankine's Guarantee; (f) Mrs Rankine's Guarantee; (g) the Sylvania Property; (h) the Rankines as trustees of the Rankine Superannuation Fund insofar as it relates to or concerns: (i) the affairs of Nielsen & Moller including any Rankine Loan; (ii) any equity in Nielsen & Moller; (iii) the Rankine Charge; (iv) superannuation contributions for and entitlements of the Rankines; (v) the Sylvania Property; (vi) Mr Rankine's Guarantee; (vii) Mrs Rankine's Guarantee; (viii) the ANZ Account; (ix) the NAB Account; (i) the Rankine Superannuation Fund insofar as it relates to or concerns: (i) the affairs of Nielsen & Moller including any Rankine Loan; (ii) any equity in Nielsen & Moller; (iii) the Rankine Charge; (iv) superannuation contributions for and entitlements of the Rankines; (v) the Sylvania Property; (vi) Mr Rankine's Guarantee; (vii) Mrs Rankine's Guarantee; (viii) the ANZ Account; (ix) the NAB Account; (j) Mr Rankine insofar as it relates to or concerns: (i) the affairs of Nielsen & Moller; (ii) the affairs of Southern Cross; (iii) the Rankine Charge; (iv) the Sylvania Property; (v) Mr Rankine's Guarantee; (vi) Mrs Rankine's Guarantee; (vii) the ANZ Account; (viii) the NAB Account; (ix) any equity in Nielsen & Moller; (k) Mrs Rankine insofar as it relates to or concerns: (i) the affairs of Nielsen & Moller; (ii) the affairs of Southern Cross; (iii) the Rankine Charge; (iv) the Sylvania Property; (v) Mr Rankine's Guarantee; (vi) Mrs Rankine's Guarantee; (vii) the ANZ Account; (viii) the NAB Account; (ix) any equity in Nielsen & Moller; (l) the Rankines insofar as it relates to or concerns: (i) the affairs of Nielsen & Moller; (ii) the affairs of Southern Cross; (iii) the Rankine Charge; (iv) the Sylvania Property; (v) Mr Rankine's Guarantee; (vi) Mrs Rankine's Guarantee; (vii) the ANZ Account; (viii) the NAB Account; (ix) any equity in Nielsen & Moller; (m) Moller insofar as it relates to or concerns the affairs of Nielsen & Moller or Southern Cross; (n) the Rankine Charge. 16. In relation to the Rankine Superannuation Fund for the period 1 July 2003 to date: (a) all financial reports or half yearly financial reports, however compiled, recorded or stored, balance sheets, profit and loss accounts, management accounts, cash flow projections or forecasts, income tax returns, ledgers, journals, directors reports or minutes, auditors reports or minutes, bank statements, deposit books, cheque books, schedules of beneficiaries' entitlements; (b) all Documents and all Financial Documents relating to or concerning: (i) Mrs Rankine's Guarantee; (ii) Mr Rankine's Guarantee; (iii) the Sylvania Property; (iv) the ANZ Account; (v) the NAB Account. 17. All Documents and all Financial Documents relating to or concerning the performance by Mr Rankine of his duties in the performance of his office as the controller of Nielsen & Moller. 18. All lists of suppliers to Nielsen & Moller for the period 1 July 2007 to the appointment of the Liquidator. 19. In relation to Southern Cross, all income tax returns, balance sheets, profit and loss accounts, cash flow projections or forecasts, management accounts, trading accounts, ledgers, cashbooks, lists of creditors (including aged creditors), aged creditor analysis, lists of debtors (including aged debtors), aged debtor analysis, lists of suppliers, bank statements, cheque books and butts, deposit books, terms of trade or supply, lists of stock or inventory, stock takes, stock costings, lists of assets, fixed asset register, depreciation schedules, leases, hire purchase agreements, loan or facility agreements or deeds, guarantees and indemnities, charges, debentures and directors and officers insurance policies. 20. Professional indemnity insurance policies and cover notes covering the period 1 July 2006 to date. 21. From 1 July 2006 to date: (a) your income tax returns; (b) your financial reports and half yearly financial reports; (c) your balance sheets; (d) your profit and loss statements; (e) All Documents and Financial Records which record or evidence any trust of which you are or were: (i) an appointor of such trust; (ii) a director or a shareholder (including beneficially) of a company that is or was an appointor of such trust; (iii) a trustee of such trust; (iv) a director or shareholder (including beneficially) of a company that is or was a trustee of such trust; (v) a beneficiary or unit holder of such trust; or (vi) a director or shareholder (including beneficially) of a company that is or was a beneficiary or a unitholder of such trust; (f) All Documents and Financial Documents which record or evidence any interest, whether legal or beneficial, which you have or had in any real property; (g) All Documents and Financial Documents which record or evidence any interest, whether legal or beneficial, in any real property which any company has or had where you are or were a director or a shareholder (including beneficially) of such a company; (h) All Documents and Financial Documents which record or evidence any interest, whether legal or beneficial, in any real property which any trustee of a trust had or has where you are or were: (i) an appointor of such trust; (ii) a director or a shareholder (including beneficially) of a company that is or was an appointor of such trust; (iii) a trustee of such trust; (iv) a director or shareholder (including beneficially) of a company that is or was a trustee of such trust; (v) a beneficiary or unit holder of such trust; or (vi) a director or shareholder (including beneficially) of a company that is or was a beneficiary or a unitholder of such trust; (i) All Documents and Financial Documents which record or evidence any interest, whether legal or beneficial, which you have or had in any personal property or other asset not being real property which cost, or if not purchased, has a value of, $10,000 or more; (j) All Documents and Financial Documents which record or evidence any interest, whether legal or beneficial, in any personal property or other asset not being real property which cost, or if not purchased, has a value of, $10,000 or more, which any company has or had, where you are or were, a director or a shareholder (including beneficially) of such a company; (k) All Documents and Financial Documents which record or evidence any interest, whether legal or beneficial, in any personal property or other asset not being real property which cost, or if not purchased, has a value of, $10,000 or more, which any trustee of a trust had or has, where you are or were: (i) an appointor of such trust; (ii) a director or a shareholder (including beneficially) of a company that is or was an appointor of such trust; (iii) a trustee of such trust; (iv) a director or shareholder (including beneficially) of a company that is or was a trustee of such trust; (v) a beneficiary or unit holder of such trust; or (vi) a director or shareholder (including beneficially) of a company that is or was a beneficiary or a unitholder of such trust; (l) bank statements for any bank account in which you have or had a legal or beneficial interest; (m) bank statements for any bank account in which any company has or had a legal or beneficial interest, where you are or were a director or a shareholder (including beneficially); (n) bank statements for any bank account in which any trustee, has or had a legal or beneficial interest, where you are or were: (i) an appointor of such trust; (ii) a director or a shareholder (including beneficially) of a company that is or was an appointor of such trust; (iii) a trustee of such trust; (iv) a director or shareholder (including beneficially) of a company that is or was a trustee of such trust; (v) a beneficiary or unit holder of such trust; or (vi) a director or shareholder (including beneficially) of a company that is or was a beneficiary or a unitholder of such trust; (o) the trust deed and any amendments thereof of any trust encompassed within (e), (h), (k) or (n) above; (p) the financial reports, half yearly financial reports, balance sheets, profit and loss accounts, and tax returns of any trust encompassed within (e), (h), (k) or (n) above; (q) the financial reports, half yearly reports, balance sheets, profit and loss accounts and tax returns of any company encompassed within (e), (g), (h), (j), (k), (m) or (n) above."

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (6)

Cited By (2)