In the matter of Alberton Investments Pty Ltd [2024] NSWSC 1643

In the matter of Alberton Investments Pty Ltd [2024] NSWSC 1643

In the absence of clear proof that the plaintiff seeks access for an improper purpose or that she and her advisers will misuse the information, the plaintiff (and nominated advisers) are entitled to access the books and records, subject to specified confidentiality undertakings, without additional conditions on purpose of advice or restriction on legal advisers.

Parties
Plaintiff: Leonie Margaret Merker; First Defendant: Raymond Edwin Neilsen; Second Defendant: Alberton Investments Pty Ltd; Third Defendant: Engineered Concrete (Qld) Pty Ltd; Fourth Defendant: Neilsens Concrete Pty Limited; Fifth Defendant: Neilsen Developments Pty Ltd; Sixth Defendant: Neilsens Holdings Pty Ltd; Seventh Defendant: Neilsens Quality Gravels Pty Ltd; Eighth Defendant: NESP (QLD) Pty Ltd; Ninth Defendant: Alberton Holdings QLD Pty Ltd; Tenth Defendant: Neilsen Group Investments Pty Ltd; Eleventh Defendant: Neilsen Transport Services Pty Ltd; Twelfth Defendant: Neilsen Estates Pty Ltd; Thirteenth Defendant: Neilsen Services Group Pty Limited
Jurisdiction
Australia
Judgment Date
16 December 2024
Procedural Posture
Equity Corporations List / Application for Access to Books and Records Ex Tempore Judgment
Outcome
Application granted
Legal Topics
Directors' Rights of Access, Confidentiality Undertakings, Legal Professional Privilege, Costs
Corporations Directors' Rights of Access Confidentiality Undertakings Legal Professional Privilege Costs

Case Brief

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Parties

Leonie Margaret Merker

Plaintiff

Raymond Edwin Neilsen

First Defendant

Alberton Investments Pty Ltd

Second Defendant

Engineered Concrete (Qld) Pty Ltd

Third Defendant

Neilsens Concrete Pty Limited

Fourth Defendant

Neilsen Developments Pty Ltd

Fifth Defendant

Neilsens Holdings Pty Ltd

Sixth Defendant

Neilsens Quality Gravels Pty Ltd

Seventh Defendant

NESP (QLD) Pty Ltd

Eighth Defendant

Alberton Holdings QLD Pty Ltd

Ninth Defendant

Neilsen Group Investments Pty Ltd

Tenth Defendant

Neilsen Transport Services Pty Ltd

Eleventh Defendant

Neilsen Estates Pty Ltd

Twelfth Defendant

Neilsen Services Group Pty Limited

Thirteenth Defendant

Procedural Posture

Equity Corporations List / Application for Access to Books and Records Ex Tempore Judgment

Legal Issues

  1. 1 Whether plaintiff (director) and her professional advisers should be granted access to specified books and records of corporate defendants subject to confidentiality undertakings
  2. 2 Whether access should be conditional on an undertaking that advice be directed to performance of director's duties
  3. 3 Whether plaintiff should be precluded from seeking advice from her current solicitors

Ratio Decidendi

In the absence of clear proof that the plaintiff seeks access for an improper purpose or that she and her advisers will misuse the information, the plaintiff (and nominated advisers) are entitled to access the books and records, subject to specified confidentiality undertakings, without additional conditions on purpose of advice or restriction on legal advisers.

Court Disposition

Application granted

Orders

  • By 20 January 2025, the second and fourth to thirteenth defendants provide access to the plaintiff and her nominated professional advisers, Mr Somerville and Mr Calford (and their staff) to the books and records described in Schedule A and Schedule B to the Originating Process, enabling reading, downloading,...
  • The plaintiff will pay any additional expense or cost of the second and fourth to thirteenth defendants in providing access to the books and records.