In the matter of Ovato Print Pty Ltd [2020] NSWSC 1709

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Ovato Print Pty Ltd [2020] NSWSC 1709 Hearing dates: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Leave to file and serve subpoenas not granted Catchwords: CIVIL PROCEDURE — Subpoenas — Scheme of arrangement — Noteholder resolution prerequisite for satisfaction of conditions precedent — Noteholders not scheme creditors — Where identity of noteholders not known to Plaintiffs because of custodial arrangements — Where third party acquisition of number of notes may lead to blocking stake — Whether proper forensic purpose for subpoena to compel disclosure of identity of noteholders. Legislation Cited: - Competition and Consumer Act 2010 (Cth) Cases Cited: - Re Force Corp Pty Ltd (Recs & Mgrs Apptd) (In Liq) [2018] NSWSC 896 - Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 Category: Procedural and other rulings Parties: Ovato Print Pty Ltd (First Applicant) Ovato Limited (Second Applicant) Hannanprint NSW Pty Limited (Third Applicant) Hannanprint Victoria Pty Limited (Fourth Applicant) Inprint Pty Limited (Fifth Applicant) Representation: Counsel: Mr D Krochmalik (Applicants)

Solicitors: Ashurst Australia (Applicants) File Number(s): 2020/323408

Judgment – ex tempore (Revised 30 November 2020) 1. By Interlocutory Process filed on 27 November 2020, the Applicants, Ovato Print Pty Limited and others (together, "Ovato Companies"), seek orders for leave to file and serve subpoenas addressed to FIIG Securities Pty Limited ("FIIG") and to Tozer & Co Pty Limited ("Tozer") and for abridgement of the time of service of those subpoenas. 2. The subpoena to FIIG seeks the production of documents, between 1 November 2020 and 27 November 2020, relating to the transfer of certain notes on issue by Ovato Finance Pty Ltd ("OFPL"), and in particular, the identity, the address or contact details of persons who acquired the notes in the relevant period, and the custodial arrangement in place in connection with those notes. That subpoena is directed, as the evidence makes clear, at least to investigating a particular transaction in respect of the notes in that period. The subpoena to Tozer, a noteholder which corresponded with the Australian Securities and Investments Commission in respect of its opposition to the scheme, is directed to seeking evidence of Tozer's holding of the relevant notes and the number of notes which it holds. 3. It is plain that the Ovato Companies have a strong commercial purpose for wishing to access these documents, although it does not follow that it has any basis to request the Court to issue subpoenas in the scheme proceedings, which relate to creditors' and member's schemes of arrangement, in order to advance that commercial purpose. I am satisfied of the urgency of the application and, had I been satisfied that I should grant leave to issue the subpoenas, then it would have been straightforward to grant short service of them. Although the application has failed, it was well-put by Mr Krochmalik, who did all that could possibly be done to establish its basis.