Lenark Pty Limited ACN 123 715 962 v TheChairmen1 Pty Limited [2011] NSWSC 1552

Lenark Pty Limited ACN 123 715 962 v TheChairmen1 Pty Limited [2011] NSWSC 1552

Clause 14.2 of the Unitholders Agreement gave Lenark Pty Limited a right of inspection for any reasonable purpose, which included obtaining documents for discovery, and the confidentiality provisions did not qualify that right. However, Lenark Pty Limited had an enforceable right only in respect of documents in the custody or possession of Industrial Partners Holdings Pty Ltd, not Industrial Partners Pty Ltd, because Industrial Partners Pty Ltd was not a party to the Unitholders Agreement. Clause 13.1 did not confer a legally enforceable right on a unitholder to obtain documents from Industrial Partners or from the nominated director; it merely permitted arrangements for the director to...

Jurisdiction
Australia
Judgment Date
15 December 2011
Procedural Posture
Interlocutory Process Seeking Discovery Orders / Interlocutory Discovery Application
Outcome
Interlocutory discovery application allowed in part; each party to bear its own costs.
Legal Topics
['discovery' 'control of Documents' 'unitholders Agreement' 'right of Access to Trust Documents' 'confidential Information']
['civil Procedure' 'corporations' 'equity'] ['discovery' 'control of Documents' 'unitholders Agreement' 'right of Access to Trust Documents' 'confidential Information']

Case Brief

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Procedural Posture

Interlocutory Process Seeking Discovery Orders / Interlocutory Discovery Application

Legal Issues

  1. 1 ["Whether documents in the possession or custody of Industrial Partners Holdings Pty Ltd or Industrial Partners Pty Ltd were within Lenark Pty Limited's control for discovery because of rights of access under a Unitholders Agreement." 'Whether the words "or any other reasonable purpose" in cl 14.2 of the Unitholders Agreement extended to access for the purpose of giving discovery in proceedings to which Lenark Pty Limited was a party.' 'Whether Lenark Pty Limited had an immediately enforceable right to obtain access to documents held by Industrial Partners Pty Ltd, which was not a party to the Unitholders Agreement.' 'Whether cl 13.1 of the Unitholders Agreement conferred on a unitholder a legally enforceable right to obtain copies of documents received by its nominated director.']

Ratio Decidendi

Clause 14.2 of the Unitholders Agreement gave Lenark Pty Limited a right of inspection for any reasonable purpose, which included obtaining documents for discovery, and the confidentiality provisions did not qualify that right. However, Lenark Pty Limited had an enforceable right only in respect of documents in the custody or possession of Industrial Partners Holdings Pty Ltd, not Industrial Partners Pty Ltd, because Industrial Partners Pty Ltd was not a party to the Unitholders Agreement. Clause 13.1 did not confer a legally enforceable right on a unitholder to obtain documents from Industrial Partners or from the nominated director; it merely permitted arrangements for the director to...

Court Disposition

Interlocutory discovery application allowed in part; each party to bear its own costs.

Orders

  • ['The plaintiff must provide discovery to the defendants of documents which: (a) fall within the categories of documents to be discovered by the plaintiff pursuant to order 1 made on 5 September 2011; (b) are books, accounts or records of Industrial Partners Holdings Pty Ltd, the Industrial Partners Unit Trust or...