In the matter of TLC Marketing Worldwide Pty Ltd (subject to a deed of company arrangement) [2017] NSWSC 1089

In the matter of TLC Marketing Worldwide Pty Ltd (subject to a deed of company arrangement) [2017] NSWSC 1089

Exceptional circumstances were made out under Practice Note SC Eq 11 given the public interest and the relevance of the documents sought to the key issues in the case. The orders for disclosure were justified to ensure the just, quick and cheap resolution of whether the resolution approving the DoCA should be set aside and whether TLC should be wound up. Relevance of each category sought by Optus was assessed and, save for subpoenas covering periods before 29 May 2017, disclosure was ordered.

Parties
Plaintiff/applicant: Optus Administration Pty Ltd; First Defendant/respondent: Bruce Gleeson (in his capacity as joint and several voluntary administrator of TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement)); Second Defendant/respondent: Daniel Robert Soire (in his capacity as joint and several voluntary administrator of TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement)); Third Defendant/respondent: TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement); Fourth Defendant: TLC Marketing France Sarl
Jurisdiction
Australia
Judgment Date
17 August 2017
Procedural Posture
Corporations List Proceeding / Interlocutory Application for Discovery/disclosure Prior to Close of Evidence
Outcome
Application for disclosure upheld. Orders for categories of documents sought by Optus made. Leave nunc pro tunc granted for subpoenas limited to documents after 29 May 2017.
Legal Topics
Deed of Company Arrangement, Discovery/disclosure, Practice Note SC Eq 11, Public Interest in Resolution of Insolvency Issues
Corporations Law Civil Procedure Deed of Company Arrangement Discovery/disclosure Practice Note SC Eq 11 Public Interest in Resolution of Insolvency Issues

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Parties

Optus Administration Pty Ltd

Plaintiff/applicant

Bruce Gleeson (in his capacity as joint and several voluntary administrator of TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement))

First Defendant/respondent

Daniel Robert Soire (in his capacity as joint and several voluntary administrator of TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement))

Second Defendant/respondent

TLC Marketing Worldwide Pty Limited (subject to a deed of company arrangement)

Third Defendant/respondent

TLC Marketing France Sarl

Fourth Defendant

Procedural Posture

Corporations List Proceeding / Interlocutory Application for Discovery/disclosure Prior to Close of Evidence

Legal Issues

  1. 1 Whether exceptional circumstances justify early disclosure of documents before close of evidence under Practice Note SC Eq 11
  2. 2 Whether categories of documents sought by Optus are relevant to the issues in proceedings seeking to set aside the DoCA

Ratio Decidendi

Exceptional circumstances were made out under Practice Note SC Eq 11 given the public interest and the relevance of the documents sought to the key issues in the case. The orders for disclosure were justified to ensure the just, quick and cheap resolution of whether the resolution approving the DoCA should be set aside and whether TLC should be wound up. Relevance of each category sought by Optus was assessed and, save for subpoenas covering periods before 29 May 2017, disclosure was ordered.

Court Disposition

Application for disclosure upheld. Orders for categories of documents sought by Optus made. Leave nunc pro tunc granted for subpoenas limited to documents after 29 May 2017.

Orders

  • Third defendant to make disclosure of nine categories of documents to Optus Administration Pty Ltd as detailed in the judgment.
  • Optus granted leave nunc pro tunc to call on subpoenas to three employees of TLC, restricted to documents from 29 May 2017.