Creditors access to documents

PUBLIC examinations under the Corporations Act often involve compulsory production of numerous documents.

Some are marked for identification and shown to witnesses.

Creditors can view these pursuant to section 597(14A) of the act as part of the examination record.

The New South Wales Supreme Court recently considered when creditors will be allowed to access other documents that were produced in the case RE Eurostar Pty Ltd.

The court held that as a general rule other such documents should not be used for purposes outside those of the examination.

However, one of the purposes of public examinations is to assist creditors in recovering debts owed to them from parties related to the debtor company.

Despite this, the court refused to make an order giving all creditors access to the documents in question.

The mere possibility that unnamed creditors might be considering recovery actions was not a special circumstance in which the general rule would not apply.

The court – adopting the approach taken in the 2001 Cap Reinsurance Corporations Holdings case – indicated that it would consider further applications that:

Identified the creditors considering action and the documents they wished to view;

Explained the likely relevance of those documents; and

Gave some indication of the likelihood that the creditors would actually pursue the action.

Any similar application should, therefore, address at least these points.

Dean Hely, partner

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