In the matter of ACN 004 410 833 Limited (formerly Arrium Limited) (subject to a deed of company arrangement) [2019] NSWSC 1606

Supreme Court New South Wales

Medium Neutral Citation: In the matter of ACN 004 410 833 Limited (formerly Arrium Limited) (subject to a deed of company arrangement) [2019] NSWSC 1606 Hearing dates: 31 October 2019 Decision date: 19 November 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order setting aside examination summons not made. Order to be made setting aside order for production to KPMG. The parties to be heard as to the other orders for production. The parties to bring in agreed short minutes of order to give effect to this judgment or, if there is no agreement between them, respective short minutes of order and short submissions as to the differences between them in regards to the specified matters. Catchwords: CORPORATIONS – winding up – public examination of directors, officers and others – where shareholders propose to examine former director of company – where shareholders investigating potential class action – whether proposed examination is to be conducted for an improper purpose – whether proposed examination is an abuse of process.

COSTS – security for costs – order for production – where liquidators and creditors of company would bear costs of production – where significant difference in costs estimates – whether production should be ordered on condition that persons seeking disclosure fund costs of such disclosure. Legislation Cited: - Civil Procedure Act 2005 (NSW) s 68 - Companies (NSW) Code s 387 - Corporations Act 1989 (Cth) s 597 - Corporations Act 2001 (Cth) Ch 5, Pt 5.9, Div 1; ss 9, 237, 545, 596A, 596B, 597(5A), 597(9) - Supreme Court (Corporations) Rules 1999 (NSW) r 2.13, 11.5 - Uniform Civil Procedure Rules 2005 (NSW) r 42.21, 49.19 Cases Cited: - Hamilton v Oades (1989) 166 CLR 486 - Hodgkinson, in the matter of Kupang Resources Ltd (subject to deed of company arrangement) [2017] FCA 1342; (2017) 125 ACSR 301 - Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 - Kimberley Diamonds Ltd v Arnautovic [2017] FCAFC 91; (2017) 252 FCR 244 - Morris v Hanley [2000] NSWSC 957 - Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188 - Re Affinity Capital Pty Ltd – Indrasith v Ku [2011] NSWSC 1158 - Re BPTC Ltd (in liq) (1992) 7 ACSR 291; 10 ACLC 271 - Re BPTC Ltd (in liq) (No 5) (1993) 10 ACSR 756 - Re Cardinal Group Pty Ltd (in liq) [2018] NSWSC 748 - Re Excel Finance Corp Ltd (rec and mgr apptd); Worthley v England (1994) 52 FCR 69 - Re Hugh J Roberts Pty Ltd (in liq) [1970] 2 NSWR 582 - Re Laurie Cottier Productions Pty Ltd (in liq) (1992) 9 ACSR 513 - Re Leisure Developments (Qld) Pty Ltd (in liq) (2002) 41 ACSR 276 Category: Procedural and other rulings Parties: Interlocutory Process filed 11 June 2019 Michael Thomas Walton (First Plaintiff/First Respondent) Anthony Bogan (Second Plaintiff/Second Respondent) ACN 004 410 833 Limited (formerly Arrium Limited) (subject to deed of company arrangement (Applicant) KPMG (Interested Party)