Federal Court of Australia
Federal Court of Australia
Enares Pty Limited v Nimble Money Limited, in the matter of Nimble Money Limited [2021] FCA 1596 File number: NSD 1200 of 2021
Judgment of: CHEESEMAN J
Date of judgment: 16 December 2021
Catchwords: CORPORATIONS – application by shareholder for access to company books and records under s 247A of the Corporations Act 2001 (Cth) – where access is sought to enquire into the debt refinancing arrangements entered into by the company but not yet completed – where the company has existing senior and subordinated debt due to mature imminently – where refinancing of senior debt is conditional on retirement of subordinated debt – where company has explored alternative methods of raising capital including by way of rights issue – where the applicant has put forward repeated indicative, conditional rights offers with latest to be underwritten on restrictive terms fettering the company's flexibility to enter future financing arrangements – whether the plaintiff had established on an objective basis that it is seeking access in good faith and for a proper purpose – whether power, if enlivened, to grant access should be exercised as a matter of discretion – Held: application unsuccessful
Legislation: Corporations Act 2001 (Cth), s 247A
Cases cited: Acehill Investments Pty Limited v Incitec Limited [2002] SASC 344 Barrack Mines Limited v Grants Patch Mining Limited [1988] 1 Qd R 606 Cescastle Pty Limited v Renak Holdings Limited (1991) 6 ACSR 115 Hanks v Admiralty Resources NL [2011] FCA 891; (2011) 85 ACSR 101 In the matter of Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649 Intercapital Holdings Limited v MEH Limited (1988) 13 ACLR 595 Knightswood Nominees Pty Limited v Sherwin Pastoral Company Limited (1989) 15 ACLR 151 Mesa Minerals Ltd v Mighty River International Ltd [2016] FCAFC 16; (2016) 241 FCR 241 Mighty River International Limited v Mesa Minerals Limited [2015] FCA 462 Praetorin Pty Limited v TZ Limited [2009] NSWSC 1237; (2009) 76 ACSR 236 Rasley (Singapore) Pte Ltd v Financial & Energy Exchange Ltd [2020] FCA 1462 Re Augold NL [1987] 2 Qd R 297 Re Claremont Petroleum NL (No 2) [1990] 2 Qd R 310 Re Style Limited; Merim Pty Limited v Style Limited [2009] FCA 647; (2009) 255 ALR 63 Re Tolco and ENT Pty Ltd v Sunrasia Television Ltd [2007] NSWSC 270; (2007) 61 ACSR 626 Re Tolco Pty Limited [2016] NSWSC 1069 Smartec Capital Pty Ltd v Centro Properties Ltd [2011] NSWSC 495; (2011) 83 ACSR 461 Unity APA Limited v Humes Limited (No 2) [1987] VR 474
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