Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 16:

1. By Originating Process filed 9 August 2024, the Plaintiff, Ms Leonie Merker, seeks orders that the Second to Thirteenth Defendants (the Corporate Defendants) provide the Plaintiff and any professional adviser of the Plaintiff with access to, and permit copying of, the books and records specified in Schedules A and B to the Originating Process (the Books and Records).

2. At the hearing of this application, the Plaintiff sought access to the Books and Records for herself and for two nominated professional advisers - Mr Lindsey Somerville and Mr Gary Calford - as well as any members of their respective staff who are assisting them. The Plaintiff sought access on the basis that each of the Plaintiff, Mr Somerville and Mr Calford would give an undertaking not to disclose the Books and Records, or the information contained in them, to Mr Sam Morris, Mr Warwick Kerridge, or any other person, without the prior written consent of the Corporate Defendants, subject to the Plaintiff being able to use the information for the purpose of seeking and obtaining legal advice in relation to issues identified by Mr Somerville or Mr Calford, provided that those lawyers have first given an undertaking in the same terms.

3. The Corporate Defendants indicated, at the hearing, that they did not oppose the Plaintiff, Mr Somerville and Mr Calford being provided with access to the Books and Records on the basis of such an undertaking, subject to a number of matters.

4. The first of these was not contentious. The Corporate Defendants proposed, and the Plaintiff agreed, that Mr Somerville and Mr Calford would not be given access to the Corporate Defendants' accounting systems, but that instead the Books and Records would be exported and provided in an appropriate format.

5. However, the Corporate Defendants raised two further matters which were not agreed by the Plaintiff:

1) first, the Corporate Defendants contended that access to the Books and Records should also be on the basis of an undertaking that any advice given in relation to those materials would be directed to the performance of the Plaintiff's role as a director of the Corporate Defendants; and

2) secondly, the Corporate Defendants contended that, insofar as it was proposed that the Plaintiff should be able to use the information for the purpose of seeking and obtaining legal advice, it should be a condition that any such advice was provided by a legal practitioner other than the Plaintiff's solicitors in this matter, Gillis Delaney.

6. Finally, each side sought its costs from the other, irrespective of the outcome on these two contested issues.

7. Before addressing each of the contested issues, and the issue of costs, I will make some comments on the factual background, which are brief given the limited scope of those contested issues.

Factual background

8. The Plaintiff has been a director of the Corporate Defendants since 1 November 2023.

9. The Corporate Defendants comprise the Neilsen Group, which was founded by the Plaintiff's parents, who are both now deceased. It is one of the largest independently owned concrete and quarry operations in Queensland.

10. The ultimate beneficial owners of the Neilsen Group are the Plaintiff and her brother (who was previously named as First Defendant).

11. The Plaintiff was appointed as director of the Corporate Defendants following Federal Court proceedings, which were resolved by a deed of settlement dated 5 October 2023.

12. The deed of settlement provided for the Plaintiff's appointment as a director of the Corporate Defendants, and also provided that she was entitled to appoint two non-executive directors, namely, Mr Paul Simonds and Mr Alan Myers AC KC (who were ultimately appointed on 23 August 2024 and 24 September 2024 respectively).

13. The Plaintiff has been provided with access to some, but not all, of the Books and Records. However, this has been provided on a read only basis, and the Plaintiff has not been able to provide this material to her advisers.

14. Mr Somerville has been retained as the Plaintiff's personal adviser. He has over forty years of professional advisory experience in taxation, accounting, financial, business, legal and related advisory services. Mr Somerville swore an affidavit in support of the Plaintiff's application, and was cross-examined.

15. Mr Calford is a partner at Moore Australia, and has over twenty-two years of experience with top and second tier accounting firms. He also swore an affidavit in support of the Plaintiff's application, but was not required for cross-examination.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193dbc437531f4200173c08d)

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