NSW Supreme Court knocks back request for Bankwest to inspect NextDC properties

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NSW Supreme Court knocks back request for Bankwest to inspect NextDC properties

The NSW Supreme Court has knocked back Asia Pacific Data Centres (APDC) application to force NextDC to open up three of its data centres for valuation by its bank.

APDC, which owns three properties occupied by NextDC's colocation facilities, took the company to court for allegedly breaching its leases by not allowing an independent property valuer from Bankwest to inspect the sites.

The property trust's management said the valuation was needed in order to potentially sell off the properties, as well as the need to refinance and comply with its obligations with the ASX to prepare its annual financial report.

APDC argued that NextDC was only refusing to give Bankwest access because it was looking to wind up the trust and acquire the properties cheaply.

In response, NextDC said its lease agreement allowed it to refuse access to the properties, and that it would give an independent valuer access, but argued that Bankwest was not "independent" and was representing APDC's commercial interests.

Judge Parker said that although the instructions for the inspection formally came from Bankwest, the instructions clearly reflected the commercial priorities of 360 Capital, APDC's majority shareholder.

The court eventually sided with NextDC, saying that APDC failed to demonstrate why Bankwest must carry out the inspection. The application was refused, however, a final hearing on access to NextDC's sites is still set to take place in July.

"One does not need to be unduly cynical to think that corporate manoeuvring is going on behind the scenes," the judge ruled.

"Counsel for APDC submitted that the explanation was that NextDC is trying to force a winding up of APDC so as to acquire the properties cheaply. This may, or may not, be correct but if the leases permit NextDC to single out Mr Duguid for refusal of access then it is entitled to do so."

APDC approached NextDC on multiple occasions offering to sell its data centres, with the most recent offer for $265 million, else it would sell them to a third-party. NextDC turned down the offer, leaving the door open for APDC to engage in discussions with other buyers.

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