Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue

Solicitors: Baker & McKenzie (Plaintiff/Applicant) Roser Lawyers (First and Second Defendants/Respondents) O'Neill Partners (Third Defendant/Respondent) File Number(s): SC 2017/218847

Judgment

1. Earlier today, I ordered that the third defendant, TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement) make disclosure to the plaintiff, Optus Administration Pty Ltd, of nine categories of documents notwithstanding the fact that evidence in the proceedings is not yet closed. I also made an order, nunc pro tunc, granting Optus leave to call on subpoenas it had issued to three individuals.
2. These are my reasons for coming to those conclusions.
3. During the course of argument, Mr Golledge, counsel appearing for the first and second defendants (the administrators of TLC), stated that the administrators were prepared to make available to Optus, on an informal basis, all of the books and records of TLC in their possession. Agreement was reached as to a regime whereby that would happen (with TLC to have first access to such documents).
4. Argument then proceeded as to the extent to which TLC should make disclosure.
5. The categories of documents that Optus sought are as follows. I have added, in emphasis, the amendments I made in respect of category 3 and the amendment that Mr Sulan (who appeared for Optus) proposed in the case of category 9: "1. A copy of the loan account referred to on page 24 of the s 439A report dated 26 June 2017 prepared by the first and second defendants (the Report). 2. A copy of the trade creditor/debtor accounts referred to on page 24 of the Report. 3. Copies of all documents recording communications between: (a) TLC, or any director, officer, employee, agent, representative or attorney of TLC; and (b) any TLC Related Entity (including any director, officer, employee, agent, representative or attorney of TLC), during the period 29 May 2017 to 14 August 2017 concerning the impact on the quantum of the deed fund referred to in the deed of company arrangement proposal referred to on page 28 of the Report of any financial benefit, payment or other incentive paid or proposed to be paid to a Creditor. 4. Copies of all documents recording any communications between Andrew Healy, Samantha Barnfield or Mira Strahinjic regarding: (a) any offer of a financial benefit, payment or other incentive to a Creditor; (b) without limiting (a), the manner in which a Creditor would exercise his, her or its vote at the second meeting of creditors of TLC; or (c) any proxy for voting at the second meeting of creditors of TLC, during the period from 29 May 2017 to 14 August 2017. 5. Copies of all documents recording any communications between TLC, or any director, officer, employee, agent, representative or attorney of TLC, on the one hand, and any Creditor regarding: (a) any offer of a financial benefit, payment or other incentive to a Creditor; (b) without limiting (a), the manner in which a Creditor would exercise his, her or its vote at the second meeting of creditors of TLC; or (c) any proxy for voting at the second meeting of creditors of TLC, during the period from 29 May 2017 to 14 August 2017. 6. Without limiting categories 4 and 5, copies of all documents recording any communications between TLC, or any director, officer, employee, agent, representative or attorney of TLC, on the one hand, and Adrianne Pecotic regarding: (a) any offer of a financial benefit, payment or other incentive to a Creditor; (b) without limiting (a), the manner in which a Creditor would exercise his, her or its vote at the second meeting of creditors of TLC; or (c) any proxy for voting at the second meeting of creditors of TLC, during the period from 29 May 2017 to 14 August 2017. 7. [Not pressed] 8. Copies of all documents recording any communications, during the period from 29 May 2017 to 14 August 2017, between TLC and: (a) any of the TLC Related Entities; or (b) any director, officer, secretary, servant, agent or attorney of any of the TLC Related Entities, regarding the terms of any offer of a financial benefit, payment or other incentive to a Creditor. 9. Copies of all documents recording communications between: (a) TLC, or any director, officer, employee, agent, representative or attorney of TLC; and (b) any TLC Related Entity (including any director, officer, employee, agent, representative or attorney of TLC), during the period 29 May 2017 to 14 August 2017 concerning the claims made by Optus Administration Pty Ltd in its proof of debt. 10. Copies of all policies of directors and officers insurance (including policy wordings, schedules and any endorsements) maintained by TLC during the period 1 July 2016 to 14 August 2017." [Emphasis added]