ANZ Bank has joined Yara International's Federal Court action to gain access to the accounts of Burrup Holdings, as the Pankaj Oswal-controlled fertiliser producer again failed to approve the terms under which inspection of the accounts could proceed.
ANZ Bank has joined Yara International's Federal Court action to gain access to the accounts of Burrup Holdings, as the Pankaj Oswal-controlled fertiliser producer again failed to approve the terms under which inspection of the accounts could proceed.
Yara launched the action last week after becoming concerned about various financial dealings of Burrup, of which it owns 35 per cent, including allegations involving millions of dollars in unauthorised related party transactions and differential dividend payments.
The case was adjourned on Friday to enable Burrup's directors to approve the conditions of a confidentiality agreement negotiated by the rival legal teams that would allow the inspection to occur.
However, Burrup was unable to gain the necessary final signature from a third director before the matter resumed this afternoon.
At the same time, the ANZ Bank - one of Burrup's major lenders - sought to join proceedings as an interested party.
Representing the bank, barrister Konrad de Kerloy said the bank was concerned that Burrup's requests to impose greater restrictions on access to various company documents would "inadvertently" infringe on its contractual rights to inspect them.
Mr de Kerloy said the bank was seeking to exercise its rights to inspect Burrup's accounts, including some of those that were the subject of Yara's action and which the court last week ruled should be kept in a sealed envelope at the court and only be made accessible to the two parties' lawyers.
Neither Yara nor Burrup opposed ANZ joining the action, though Burrup barrister Anthony Willinge said he had not been instructed as to whether he should agree to ANZ's requests for minor amendments to the court's existing restrictions on access to the relevant documents.
Asked why Justice Michael Barker should not simply act on Yara's request for urgent access to Burrup's books, Mr Willinge said it would "simply be wrong" to believe Burrup was not actively trying to resolve the impasse.
He noted that Yara had itself only notified Burrup of additional amendments to the proposed confidentiality agreement this morning, while lawyers separately representing Mr Oswal had also only just provided their own suggestions about the terms of the agreement.
"So it would be wrong for anyone to jump to the conclusion that anyone is stalling," Mr Willinge said.
Speaking via phone from Canberra, Justice Barker agreed to give both parties until tomorrow afternoon to make final written submissions ahead of a final hearing on Wednesday morning.
But in a clear sign of his growing frustration, he warned that he intended to make a ruling at 2.15 on Wednesday afternoon regardless of whether Burrup's board had signed the proposed confidentiality agreement.
Yara's legal action comes after its frustration that Burrup has still not lodged its accounts, four months after they were due, and last week said it was motivated by concerns over a number of Burrup's financial dealings.
In particular, it raised its concerns that Mr Oswal and his wife Radhika, who together own 65 per cent of Burrup, appeared to have been paid a dividend due in July 2009 in full, while Yara had received only 25 per cent of its $10.5 million entitlement by last August. The remainder was paid only last week.
It also said it was concerned by an "unauthorised $22 million related party transaction", described as a "prepayment" on a $US350 million bank facility for which Yara did not believe Burrup was liable, and by payments made by Burrup to Oswal-linked shipping company, Maruti Shipping.
Burrup maintains that Yara had no need to take court action because it had already been promised access to inspect the accounts in writing, though on terms not considered acceptable by Yara.
It has also accused Yara of using the court in "a cynical attempt to muddy the waters" in relation to a commercial dispute over the pricing of ammonia exports from Burrup's ammonia plant near Karratha.
