Arkin v Tridon Australia Pty Limited [2003] FCA 1372

FEDERAL COURT OF AUSTRALIA

Arkin v Tridon Australia Pty Limited [2003] FCA 1372 Corporations Act 2001 (Cth) s 286, 290, 290(4) Income Tax Assessment Act (Cth) Division 7A Evidence Act 1995 (Cth) s 136 Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 referred to Arkin v Tridon Australia Pty Limited (2002) 43 ACSR 610 referred to Cristel v Cristel [1951] 2 KB 725 cited Kraft v Kupferwasser (1991) 23 NSWLR 236 cited Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1980) 148 CLR 150 referred to HARRY LEE ARKIN v TRIDON AUSTRALIA PTY LIMITED N 3016 OF 2002 HELY J 2 DECEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 3016 OF 2002

BETWEEN: HARRY LEE ARKIN

APPLICANT

AND: TRIDON AUSTRALIA PTY LIMITED

(ACN 001 398 698)

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 2 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant's Notice of Motion of 28 July 2003 is dismissed with costs. 2. The respondent's Amended Notice of Motion of 28 July 2003 is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 3016 OF 2002

BETWEEN: HARRY LEE ARKIN

APPLICANT

AND: TRIDON AUSTRALIA PTY LIMITED

(ACN 001 398 698)

RESPONDENT

JUDGE: HELY J

DATE: 2 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

A director seeks access to documents 1 The background to this matter is explained in a judgment which I delivered on 24 December 2002: Arkin v Tridon Australia Pty Limited (2002) 43 ACSR 610. As I there explained at [57], the issue in the proceedings in this Court was whether the Court should enforce inspection of Tridon Australia Pty Ltd's ('TAPL') financial records by Mr Arkin, as a person falling within the description of a director for the purposes of s 290 of the Corporations Act 2001 (Cth) ('the Corporations Act') having regard to the complaints which TAPL made as to his conduct and connections, and whether this Court should authorise Mr Watson or Mr Donnelly to inspect those records on Mr Arkin's behalf. One of the grounds on which inspection was originally opposed was that ACDT Tridon Inc ('ACDT') was seeking to wind up TAPL in the Supreme Court and, in TAPL's contention, the inspection sought by Mr Arkin was to aid ACDT in the prosecution of those proceedings. Mr Arkin was appointed to the board of TAPL on the nomination of ACDT pursuant to the provisions of the shareholders agreement referred to in the earlier judgment.