ACP v Southdown - [2001] NSWSC 155

CITATION: ACP v Southdown [2001] NSWSC 155

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 50160/99

HEARING DATE(S): 16.2.2001

JUDGMENT DATE:
14 March 2001

PARTIES :

ACP Magazines Pty Ltd v Southdown Publications Pty Ltd & Anor

JUDGMENT OF: Hunter J

COUNSEL : Applicant: A J Meagher SC & M J Steele
Respondents : S J Gageler & I R Pike

SOLICITORS: Applicant: Gilbert & Tobin
Respondents: Blake Dawson Waldron

CATCHWORDS: Contract - practice and procedure - construction of inspection of records clause - right to copy - orders declaratory of previous orders.

CASES CITED: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-2) 149 CLR 337
Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 (The Diana Prosperity)
Mutter v Eastern and Midlands Railway Co (1888) 38 Ch D 92
Downey v Pryor (1960) 103 CLR 353
Copyright Agency Ltd v Haines (1982) 1 NSWLR 182
Nelson v Anglo-American Land Mortgage Agency Company [1897] 1 Ch 130

DECISION: I make orders in terms of paragraphs 1(a), (b) and (c) of the amended notice of motion, omitting from paragraph (a) the words "or nominees", omitting from paragraphs (b) and (c), the words "nominees or". The defendants are to pay the costs of the motion.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

HUNTER J

WEDNESDAY 14 MARCH 2001

50160/99 ACP MAGAZINES PTY LIMITED -V- SOUTHDOWN PUBLICATIONS PTY LIMITED
REASONS FOR JUDGMENT

1 The following consent orders were made in these proceedings on 11 February 2000:

“1. Within 6 weeks of receipt of notice in writing from the plaintiff that the plaintiff wishes to inspect the books and records of TV Week in accordance with clause 5 of the Deed dated 6 August 1980 between Australian Consolidated Press Limited, News Limited and Southdown Publications Pty Limited (the “Deed”), the first defendant make and the second defendant procure that he make available for inspection by the Chairman for the time being of the plaintiff or his nominee at a place reasonably accessible to him, all the books of account, records, correspondence and other records of all transactions relating to the Business of “TV Week” for the period October 1991 to the date of this order, such inspection to be on the terms set out in clause 5 of the Deed.

2. The Second Defendant pay the Plaintiff’s costs of these
proceedings.
3. The proceedings otherwise be dismissed.”

2 Those orders have yet to be entered.

3 Clause 5 of the deed, referred to in order 1, was in the following terms:

“5.

Accounts

News shall keep or cause to be kept proper books of account and other records of all the transactions relating to the Business which accounts and records shall be kept by or under the supervision of News. Such books of account, records, correspondence and other relevant documents shall be at all reasonable times made available by the Chief Executive for the time being of News for inspection by the Chairman for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACP v Southdown

Details

AGLC: ACP v Southdown [2001] NSWSC 155
Case: [2001] NSWSC 155
Decision Date: 14 March 2001

CaseChat Overview and Summary

The case of ACP v Southdown involved a dispute between two parties, ACP and Southdown, concerning the interpretation of a clause in a contract that pertained to the inspection of records. The dispute reached the court, which was tasked with determining the legal rights and obligations of both parties under the contract. The court had to ascertain whether the clause allowed for the copying of records during an inspection and whether it could make declarations regarding the enforceability of previous orders made in relation to the contract.

The primary legal issue before the court was the interpretation of an inspection of records clause within the contract between ACP and Southdown. Specifically, the court needed to determine if the clause permitted ACP to copy any records it inspected. Additionally, the court was required to decide whether it could issue declaratory orders that would affirm the validity and enforceability of previous orders related to the contract. The interpretation of these clauses was crucial as they related to the procedural rights of ACP in exercising their contractual obligations and remedies.

The court undertook a detailed analysis of the contract language and the context in which the inspection of records clause was included. It examined the intentions of the parties and the ordinary meaning of the words used. The court found that the clause did allow for the copying of records during an inspection, as this was necessary for ACP to properly fulfill their obligations under the contract. Furthermore, the court concluded that it could issue declaratory orders to affirm the enforceability of previous orders, ensuring clarity and finality in the contractual relationship between the parties. The court's interpretation and reasoning provided a clear resolution to the dispute, allowing both parties to understand their rights and obligations moving forward.

Orders