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Category: Principal judgment

Parties: Johan Pele Brock Loewenthal (Plaintiff)
Universal Music Publishing Pty Limited (Defendant)
Australasian Performing Right Association Ltd (Respondent)

Representation: Counsel:
J Loewenthal (Self Represented)
R Clark (Defendant)
S Lawrance SC (Respondent)
Solicitors:
Banki Haddock Fiora Lawyers (Defendant and Respondent)

File Number(s): 2026/00150816

Publication restriction: Nil

JUDGMENT – ex tempore (revised)

INTRODUCTION

1. Johan Loewenthal has brought proceedings against Universal Music Publishing Pty Ltd by a summons filed 14 April 2026 in which he seeks various relief in relation to the Publishing A****greement dated 21 December 2017. In summary, that relief includes:

2. a declaration that he validly terminated the Agreement on 19 January 2026;

3. a declaration that all monies received by Universal after 19 January 2026 in respect of Mr Loewenthal’s musical compositions are held on constructive trust for his benefit; and

4. a declaration that Universal holds no continuing rights in Mr Loewenthal’s musical compositions and an order that Universal forthwith notify Australasian Performing Right Association Ltd (APRA), Australasian Mechanical Copyright Owners’ Society Ltd (AMCOS) and other collecting agencies, sub-publishers and digital service providers of the termination of the Agreement.

5. It is in this context that Mr Loewenthal has brought an application by notice of motion filed 14 May 2026 against APRA and AMCOS pursuant to s 247A of the Corporations Act 2001 (Cth), in effect seeking the production of all minutes of general meetings, board meetings and committee meetings of APRA and AMCOS as well as any policy, procedure, governance decision, board resolution or management directive relating to member inspection rights under s 251B of the Corporations Act or Article 9(1) of the APRA AMCOS Constitution.

6. Mr Loewenthal is a member of APRA and a self-represented litigant. He appeared at the hearing of the motion before me today by audiovisual link from Switzerland. APRA opposes the orders sought, including on behalf of AMCOS, whose business APRA also manages.

7. The motion is misconceived and must be dismissed for the reasons set out below.

LEGAL PRINCIPLES

5. Section 247A of the Corporations Act provides:

247A Order for inspection of books of company or registered scheme

(1) On application by a member of a company or registered 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) A person authorised to inspect books may make copies of the books unless the Court orders otherwise.

(3) A person who:

(a) is granted leave under section 237; or

(b) applies for leave under that section; or

(c) is eligible to apply for leave under that section;

may apply to the Court for an order under this section.

(4) On application, the Court may make an order authorising:

(a) the applicant to inspect books of the company; or

(b) another person to inspect books of the company on the applicant’s behalf.

(5) The Court may make the order only if it is satisfied that:

(a) the applicant is acting in good faith; and

(b) the inspection is to be made for a purpose connected with:

(i) applying for leave under section 237; or

(ii) bringing or intervening in proceedings with leave under that section.

(6) A person authorised to inspect books may make copies of the books unless the Court orders otherwise.

6. There is no issue that as a member of APRA, Mr Loewenthal has standing to bring the application.

7. The relevant principles to be applied under s 247A of the Corporations Act are expressed in Mesa Minerals Ltd v Mighty River International Ltd (2016) 241 FCR 241; [2016] FCAFC 16 by Katzmann J (with whom Siopis and Gilmour JJ agreed) at [22]:

There was no dispute below or on appeal as to the relevant principles. It is sufficient at this point to note the following matters drawn from the convenient summary given by Debelle J in Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344; 223 LSJS 97 at [29] and the additional principles identified by Gordon J in Hanks v Admiralty Resources NL [2011] FCA 891; (2011) 85 ACSR 101 at [32], both of which judgments were referred to by the primary judge at different points in his reasons:

(1) The stipulation that an application be made in good faith and for a proper purpose is a composite notion rather than two distinct requirements: Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (1989) 7 ACLC 536 at 540–541. That is to say, as Brooking J put it in Knightswood at 541:

[T]he reference to good faith colours and so reinforces the requirement of proper purpose. Acting in good faith and inspecting for a proper purpose means acting and inspecting for a bona fide proper purpose. It is as if the case was one of hendiadys.

(2) Good faith and proper purpose must be proved objectively: Acehill, citing Barrack Mines Ltd v Grants Patch Mining Ltd [1988] 1 Qd R 606 (Full Court) (Barrack Mines Appeal) and Knightswood supra. See also the discussion in C Mantziaris, “The member’s right to inspect the company books: Corporations Act, s 247A” (2009) 83 ALJ 621 at 628–9.

(3) “Proper purpose” means a purpose connected with the proper exercise of the rights of a shareholder as shareholder and not, for example, as a litigant in proceedings against the company or as a bidder under a takeover scheme: Cescastle Pty Ltd v Renak Holdings Ltd (1991) 9 ACLC 1333 at 1335.

(4) The onus of proof is on the applicant: Quinlan v Vital Technology Australia Ltd (1987) 5 ACLC 389 at 393.

(5) An applicant who has a significant holding and who has been a shareholder for “some considerable time” will more easily discharge the onus than one who has recently acquired a token holding: Quinlan at 393.

(6) It is not necessary that the applicant show that its interests are different to those of other shareholders: Yara Australia Pty Ltd v Burrup Holdings Ltd [2010] FCA 1273; 80 ACSR 641 at [116].

(7) Nor is it necessary that the applicant have sufficient evidence to bring or make out an action (Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237; 76 ACSR 236 at [40]); it is enough that the issue raised by the applicant is “substantive and not fanciful”, not “artificial, specious or contrived”: Re Style Ltd; Merim Pty Ltd v Style Ltd [2009] FCA 314; 255 ALR 63 at [66]–[67].

(8) Pursuing a reasonable suspicion of breach of duty is a proper purpose: McNeill v Hearing & Balance [2007] NSWSC 942 at [17] citing Barrack Mines Ltd v Grants Patch Mining Ltd (1987) 6 ACLC 97 and the judgment on the unsuccessful appeal: supra.

(9) Provided that the applicant’s primary or dominant purpose is a proper one, it is not to the point that an inspection might benefit the applicant for some other purpose: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 480; Barrack Mines Appeal at 615; Cescastle at 1335.

(10) Applicants do not necessarily lack a proper purpose merely because they are hostile to other directors: Humes at 480.

(11) Neither the fact that an applicant may have had sufficient information earlier nor the fact that an applicant may have other means of obtaining the information is detrimental to an application under the section: McNeill at [23]–[25].

(12) The procedure under s 247A is not intended to be as wide-ranging as discovery so that the general rule is that inspection will be limited to such documents as evidence the results of board decisions, rather than all board papers leading to decisions, but there may be occasions when it is proper to permit inspection of board papers: Acehill at [31].

(13) The Court has a residual discretion whether to order inspection: Humes at 481.

8. As indicated in Mesa, these considerations were drawn from Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 by Debelle J at [29].

CONSIDERATION

9. On 17 April 2026, Mr Loewenthal served a formal written notice on APRA and AMCOS, purportedly invoking article 91(c) of the APRA Constitution, requesting copies of all minutes of general meetings of APRA and AMCOS.

10. The “proper purpose” for the application was expressed by Mr Loewenthal in the following terms:

5.1 The Applicant brings this application for a proper purpose within the meaning of Section 247A. The minutes of APRA AMCOS board and general meetings are directly relevant to the active proceedings in which the Applicant is the Plaintiff.

5.2 Andrew Jenkins, President Australia and Asia Pacific Region of UMPG, serves as Publisher Director on the boards of both APRA and AMCOS. Marianna Annas, VP Commercial and Creative at UMPG, serves as Alternate Publisher Director on the APRA board. Both are disclosed in APRA AMCOS’s annual financial report for the year ended 30 June 2025.

5.3 On 12 February 2026, APRA AMCOS confirmed in correspondence that it had been in communication with UMPG concerning the Applicant’s publisher share dispute. The minutes are relevant to whether UMPG’s executives participated in any discussion or decision affecting the Applicant’s publisher share, mandate or royalty routing during the period of this dispute.

5.4 The Applicant does not seek the minutes for any improper purpose. The application is made in good faith to obtain documents relevant to the relief sought in the active proceedings.

11. None of these matters are a proper purpose within the sense described in each of Mesa and Acehill. Mr Loewenthal’s claims in the substantive proceedings are made against Universal. He is seeking to use the documents that he wishes to obtain from APRA and AMCOS for the purpose of vindicating the rights he has against Universal, not to vindicate any rights he has as a member of APRA and AMCOS. Mr Loewenthal is not seeking those documents to assist in vindicating any right he has as a member of APRA and AMCOS but instead in connection with another purpose, which is to advance his rights against Universal in the substantive proceedings he has against them, which involves a commercial dispute between Mr Loewenthal and Universal in relation to the Agreement. Even if the documents which are sought from APRA and AMCOS were relevant to those proceedings, it would still not constitute a proper purpose for his application under s 247A of the Corporations Act.

12. Further, Mr Loewenthal has already been provided with the minutes of the annual general meetings of APRA for the period from 2016 to 2025 pursuant to two emails which were sent to him on 12 and 13 May 2026 by the General Counsel of APRA. Accordingly, before Mr Loewenthal filed the motion he had already received documents within the first category described in the motion.

13. Mr Loewenthal also seeks the board minutes, committee minutes, board papers, internal communications and other documents of both APRA and AMCOS in the period from 2016 to the present time. The categories of these documents are incredibly broad, encompassing every operational matter of APRA and AMCOS over a ten-year period. Those documents are self-evidently confidential and would obviously contain commercially sensitive information. That factor also forms a further basis on which I would refuse the application for an order requiring the production of documents within those categories to Mr Loewenthal.

14. The sheer breadth of the request for documents sought by Mr Loewenthal also indicates that it is not a properly made request of APRA and AMCOS.

15. Mr Loewenthal also references an email dated 12 February 2026 to suggest that Universal had been in contact with APRA and AMCOS in relation to his dispute with Universal. The email is far more benign than Mr Loewenthal suggests. The email from APRA to Mr Loewenthal states:

I hope this finds you well.

Thanks for the follow-up and clear breakdown of the updates you need.

We’ve been in communication with Universal who has let us know they’ve not yet officially relinquished their claim to the works, and that their review of the agreement is still “ongoing”.

To move things forward, we’d recommend you follow up with them to reach an agreement. Once Universal formally advises us of the release, will be able to action things ASAP.

We look forward to hearing from you.

16. In my view, this email indicates nothing more than a view from APRA that they do not wish to become involved in Mr Loewnthal’s dispute with Universal and instead intends to await the outcome of it.

17. Mr Lowenthal also complains about the fact that the minutes provided to him do not contain scanned wet ink signatures on physical paper and were instead signed electronically. The evidence provided by APRA and AMCOS is that:

18. they changed the format in which they store electronic minutes in 2021;

19. prior to 2021, the minutes of general meetings were printed and signed by the chair in wet ink; and

20. from 2021 onwards, the minutes of general meetings were signed by the chair by way of placing an electronic signature on a Word document containing the minutes and then that document would be printed and pasted into the minute book and the Word document saved to the hard drive.

21. I consider this is a sufficient explanation for the format of the minutes which were provided to Mr Loewenthal.

22. Finally, Mr Loewenthal repeatedly stated that there was a conflict of interest arising between the various people acting for Universal, APRA and AMCOS. He did not explain the relevance of this conflict to this application and I make nothing further of it.

ORDERS

20. For these reasons, I make the following orders:

21. The notice of motion filed 14 May 2026 by the plaintiff is dismissed.

22. The plaintiff is to pay the costs of each of the defendant, Australasian Performing Right Association Ltd and Australasian Mechanical Copyright Owners’ Society Ltd in relation to the notice of motion filed 14 May 2026, with the costs of Australasian Performing Right Association Ltd and Australasian Mechanical Copyright Owners’ Society Ltd payable forthwith.

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