Anyoption Holdings Ltd v Nurisvan Investment Ltd
[2015] VCC 1872
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for publication |
AT MELBOURNE
COMMERCIAL DIVISION
GENERAL CASES LIST
Case No. CI-15-05214
| ANYOPTION HOLDINGS LIMITED | Plaintiff |
| v. | |
| NURISVAN INVESTMENT LIMITED and FIBO AUSTRALIA PTY LTD | Defendants |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2015 | |
DATE OF JUDGMENT: | 18 December 2015 | |
CASE MAY BE CITED AS: | Anyoption Holdings Ltd v. Nurisvan Investment Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1872 | |
REASONS FOR JUDGMENT
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Catchwords: Interlocutory injunction – Agreement to enter into shares sale agreement – Agreement drafted as a deed but not executed by all parties – Part performance by payment of deposit – Whether share sale agreement entered into – Whether interlocutory injunction should be granted to restrain sale of shares to a third party – Plaintiff a Cypriot company with no assets in Australia – Whether plaintiff should provide security for the undertaking as to damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Sowden of Counsel | Nicholas O'Donohue |
| For the Defendants | Mr G. Sirtes SC with Ms A. Avery-William of Counsel | Sophie Grace Legal |
HIS HONOUR:
1Anyoption Holdings Limited (“Anyoption”), by writ dated 5 November 2015, claims that Nurisvan Investments Limited (“Nurisvan”) must transfer to it Nurisvan’s shareholding in FIBO Australia Pty Ltd (“FIBO”) for a total consideration of $100,000. Nurisvan is the sole shareholder in FIBO and by the transfer, Anyoption would thereby acquire FIBO’s Australian Financial Services Licence (“the licence”).
2On 18 November 2015, at the request of all parties, His Honour Judge Lacava made orders by consent, including an order that, “The First Defendant is restrained from transferring its shares in the Second Defendant other than to the Plaintiff or causing or permitting the Second Defendant to dispose of any of its assets until further order” (“the injunction order”).
3The defendants, Nurisvan and FIBO, seek the discharge of the injunction order and an order that the plaintiff provide security for the defendants' costs of the proceeding. The plaintiff, Anyoption, seeks the continuation of the injunction order until the hearing and determination of the proceeding.
4The applications by the parties involve the resolution of the following issues:
a.whether there a serious question to be tried as to Anyoption’s entitlement to the relief it seeks, particularly the proposed transfer of Nurisvan’s shares in FIBO;
b.whether damages would be an appropriate remedy;
c.should Anyoption’s undertaking as to damages, given as a condition of the grant of interlocutory injunctive relief, be required to be supported by appropriate security, and if so in what sum;
d.does the balance of convenience favour the grant of interlocutory injunctive relief;
e.is the balance of convenience affected by Nurisvan’s offer, if the injunction order were discharged, to provide security, effectively to be held until the hearing and determination of the proceeding on account of any damages Anyoption may recover as an alternative to an order for the transfer of the shares in FIBO;
f.should Anyoption be required to provide security for the defendants' costs of the proceeding, and if so whether it should be provided in tranches, and in what amounts.
Serious question to be tried / Damages an appropriate remedy
5Anyoption and Nurisvan are Cypriot companies. On about 24 December 2014, a document entitled “Binding Heads of Agreement” (“the Agreement”) was executed by FIBO and Anyoption. The Agreement had four parties – Nurisvan as “vendor”, Anyoption as “purchaser”, FIBO and Holley Nethercote Commercial & Financial Services Lawyers (“Holley Lawyers”) as “stakeholder”.
6The Agreement purported to be a “deed” although the document only made provision for execution by FIBO and Anyoption. The recitals in the Agreement were as follows:
“A. The Vendor wishes to sell to the Purchaser and the Purchaser wishes to buy from the Vendor the Shares.
B.FIBO holds a valid Australian Financial Services Licence (AFSL).
C.The Parties wish to manifest their intention for the Vendor to sell and the Purchaser to purchase all of the Shares in this deed.
D. The Parties agree that this deed is binding on the Parties”.
7The Agreement was “conditional” upon a number of specified matters including “completion of due diligence to the purchaser’s reasonable satisfaction during the term”. No “term” is provided in the Agreement, although clause 8.1 provides that:
“This deed will terminate on the date the first of the following events occurs:
8.1.1 execution of the Share Sale Agreement.
8.1.2 the Parties agree in writing to terminate this deed”.
A Share Sale Agreement was never executed and there was no agreement in writing to terminate the deed.
8One would expect to find the issues in dispute between the parties articulated in the statement of claim and the defences of each defendant. The pleadings by all parties are presently inadequate. It is necessary, however, that an analysis be made of the matters raised by the pleadings, as well as other matters canvassed in submissions and which might, in the future, be raised by way of amendment.
9The issues between the parties include:
a.as regards the Agreement dated 24 December 2014, Anyoption pleads in its statement of claim that “the plaintiff and defendant entered into binding heads of agreement (executed as a deed)”. I allowed the plaintiff to amend “the defendant’ to “the first defendant”. However, Nurisvan pleaded in paragraph 14 of its defence:
“(i) as the “Binding Heads of Agreement” was in the form of a deed it required each party thereto to seal and deliver the deed;
(ii) as the First Defendant did not execute the deed at all the “Binding Heads of Agreement” was not formed and is invalid”;
b.nevertheless, the undisputed facts are that, pursuant to the Agreement, Anyoption paid a deposit of $10,000 to the stakeholder (Holley Lawyers). Between December 2014 and October 2015, Holley Lawyers were purporting to act as Nurisvan’s solicitors. Accordingly, there appears to be a very strong basis for suggesting, despite Nurisvan not having executed the agreement, whether as a deed or otherwise, that it should be bound by the terms of the agreement. These matters are not, however, presently referred to in the statement of claim;
c.although a Share Sale Agreement was not executed by the vendor and purchaser, Anyoption alleges that a Share Transfer Agreement forwarded by Anyoption to Nurisvan on 9 October 2015 “constitutes a binding agreement between” them. In that regard, Anyoption relies on the following matters:
i.by email dated 4 September 2015, Nurisvan’s solicitors wrote to Anyoption stating, inter alia, that “our client is now prepared to complete the transaction for the price of $100,000 (as previously contemplated in draft documents)”;
ii.by email dated 9 October 2015, Anyoption’s solicitors “forwarded a final version of the Share Sale Agreement containing all the terms that had been agreed by [Anyoption and Nurisvan] in relation to the sale and purchase of FIBO for approval and execution by [Nurisvan]”;
d.these allegations ignore the following further correspondence:
i.on 31 August 2015, Nurisvan’s solicitors advised Anyoption’s solicitors that their client “no longer wished to proceed with the sale of FIBO ... to Anyoption ... the vendor will now sell FIBO ... for AUD300,000”;
ii.on 22 September 2015, Nurisvan’s solicitors wrote to Anyoption’s solicitors noting that as Anyoption “has taken no steps to indicate that it will proceed with the sale of shares in FIBO”, following the email dated 4 September 2015, Nurisvan “now regards the document entitled “Binding Heads of Agreement which was executed by your client and FIBO Aus to have been repudiated by your client by reason of its inactivity”;
iii.Anyoption’s solicitors sent an email dated 30 September 2015 which reiterated a request earlier made on 8 September for “financials” for the 2015 financial year and “an updated trial balance”;
iv.Anyoption’s solicitors’ email dated 9 October 2015 asked “where your client is up to with the financial records?” The email also noted that “suggested modifications” had been made “to the sale agreement to accommodate issues that have arisen since it was last circulated”. The email asked Nurisvan’s solicitors to “confirm that [the further draft of the Share Sale Agreement] is in a form acceptable to your client”;
e.On 16 December 2015, Anyoption filed a further affidavit of its solicitor Mr Lynch when delivering further submissions to the Court. The affidavit exhibited further email correspondence between Mr Lynch and Mr Dixon (of Holley Lawyers), as follows:
i.email dated 4 September 2015 from Mr Lynch to Mr Dixon seeking clarification of issues relating to audit fees and the ASIC investigation;
ii.email dated 8 September 2015 from Mr Lynch to Mr Dixon advising that “Anyoption had indicated agreement in principle to complete the transaction on the agreed terms” but also foreshadowing that there would “need to be some amendments to the sale contract”, and asking Mr Dixon to “send through information and the updated contract”;
iii.later on 8 September 2015, Mr Dixon acknowledged Mr Lynch’s email earlier that day and said he would “pass on the contents [and] respond as soon as possible”.
f.the statement of claim (paragraph 9) alleges that Nurisvan breached the Agreement by its failure and/or refusal “to provide a counterpart of the Share Transfer Agreement signed for and on behalf of [Nurisvan]”. This appears to be alleged as a breach of the term of the Agreement (pleaded in paragraph 5(a)) that “the parties would enter into a Share Sale Agreement in according (sic) with the terms of the Binding Heads of Agreement”. Anyoption’s Counsel, Mr Sowden, submitted that this was not an express term contained in the Agreement, but must be imported “by necessity”;
g.the statement of claim does not currently refer to the following clauses of the Agreement:
i.clause 3 whereby, “The parties declare their respective bona fide intention to enter into the Share Purchase Agreement”;
ii.clause 6, which provides that, “Each party agrees to negotiate in good faith with respect to entering into the Share Sale Agreement in accordance with the terms in clause 5”, which provided that “the following conditions, among others, will be included in the Share Purchase Agreement...”;
h.the prayer for relief in the statement of claim seeks injunctive relief to enforce the promise by Nurisvan and FIBO, in clause 4 of the Agreement, that “for the term of this deed, it (sic) must not negotiate with any third party about the sale of the shares or any FIBO assets”;
i.however, the principal relief sought is in relation to the Share Sale Agreement “forwarded to Nurisvan on 9 October 2015”, as follows:
“C. An order for specific performance of the Binding Heads of Agreement.
D. Alternatively, a declaration that the Share Sale Agreement as executed by the plaintiff is binding on the plaintiff and first defendant.
E.Pursuant to paragraph D an order compelling the first defendant to do all such things to complete the Share Sale Agreement.
F.Alternatively, damages”.
10By their defences, Nurisvan and FIBO principally deny the allegations in the statement of claim. However, paragraph 14 includes the following pleadings:
“(iii) insofar as the Binding Heads of Agreement was not invalid, it contained an implied term that the ‘Completion Date’ would be within a reasonable time from the date of execution of the ‘Binding Heads of Agreement’;
(iv)in breach of the said implied term the Plaintiff failed to complete the agreement within a reasonable time after execution of the ‘Binding Heads of Agreement’, and was lawfully terminated”.
11The term alleged in paragraph 14 (iii) was said by the defendants' senior counsel Mr Sirtes SC (with whom Ms Avery-William appeared) to arise by implication, although the facts and circumstances by which the implication arises were nowhere stated. Similarly, the defences allege that, “the parties abandoned the ‘Binding Heads of Agreement’ by 31 August 2015”, without any particulars of the abandonment having been provided. The only matter which apparently occurred on 31 August was the email from Holley Lawyers stating that Nurisvan “no longer wished to proceed with the sale of FIBO” to Anyoption and would “now sell FIBO ... for AUD300,000”.
12In the affidavit in support of Nurisvan’s application to discharge the injunctive order, sworn by the defendants’ present lawyer, it is stated that one of the issues in the proceeding will be, “whether the solicitors engaged in correspondence in relation to the documentation, Holley Nethercote, were instructed and acted for the First Defendant until such time as the ‘Binding Heads of Agreement’ was terminated”. This matter is not presently raised in the defences.
13Such an allegation seems inconsistent with the chain of emails between the solicitors, including the following statements:
a.Holley Lawyers’ email dated 31 August 2015 commences, “After being instructed by the Vendor, Nurisvan Investment Ltd that it no longer wished to proceed with the sale of FIBO Australia Pty Ltd to Anyoption Ltd ... I am instructed to advise that the vendor will now sell FIBO Australia Pty Ltd for AUD300,000 provided the sale can be completed within two weeks”.
b.Holley Lawyers’ email dated 4 September 2015 states, “I am instructed that our client is now prepared to complete the transaction for the price of $100,000 (as previously contemplated in draft documents) at the earliest possible opportunity”;
c.Holley Lawyers’ email dated 22 September 2015 includes the passage, “We are instructed that the vendor now regards [the Agreement] ... to have been repudiated by your client ... our client is prepared to offer to sell the shares in FIBO Aus to your client ... for the price ... AUD300,000”;
14I consider that although I should primarily have regard to the way in which the case is presently pleaded by Anyoption in its statement of claim, I should nevertheless take account of the matters raised during submissions which might reasonably be expected to be introduced by amendment as issues in the proceeding. It is my present view that Anyoption has established that there are serious questions to be tried as to:
a.whether Nurisvan is bound by the terms of the Agreement, and
b.whether Anyoption and Nurisvan entered into an enforceable share purchase agreement which obliges Nurisvan to transfer its shares in FIBO to Anyoption for the sum of $100,000.
15I consider that there is a sufficient likelihood that Anyoption would succeed on both these issues at trial. In regard to the Agreement, by accepting the deposit and by purporting to act as Nurisvan’s solicitors in circumstances as if there were a binding agreement between all four parties to the Agreement, Holley Lawyers appeared to have had the full authority of Nurisvan to negotiate and finalise the share sale agreement.
16To seek specific performance or other positive relief, Anyoption must be able to point to evidence which supports the conclusion that an agreement had been reached between the parties as to the terms of the sale of the shares in FIBO. In my view, the correspondence between the solicitors for Anyoption and the solicitors apparently acting for Nurisvan between 31 August and 9 October 2014, particularly the emails on 4 and 8 September 2015, suggests that agreement had been reached.
17Further, there is evidence from which to conclude that Nurisvan was not bona fide in its intention to enter into a share purchase agreement or to negotiate in good faith to achieve that end. Nurisvan’s instructions, as relayed by Holley Lawyers in its emails dated 31 August and 4, 8 and 22 September 2014 indicate that Nurisvan was alternating between demands for an increased sale price for the shares of $300,000 and a preparedness to enter into an agreement for the agreed price of $100,000.
18Although Anyoption presently pleads its case based upon the breach of an implied term, there is, in my view, sufficient to support the contention that the construction of the express terms of the Agreement lead to such a position. Further, the oral evidence of Nurisvan’s present solicitor about the draft share sale agreement to Ruizean Pty Ltd (“Ruizean”) was that, provided the injunction order were discharged, that company had a binding arrangement to purchase FIBO for a total price of USD410,000.
19Anyoption would need to amend its statement of claim in order to plead matters amounting to an enforceable share sale agreement, as well as the breaches of the Agreement allegedly constituted by Nurisvan’s failure to enter into a share sale agreement. The latter matters would ordinarily lead to no more than a claim for damages and would generally be insufficient to found a claim for specific performance or injunctive relief.
Undertaking as to damages
20As a condition of the grant of an interlocutory injunction, the applicant is ordinarily required to provide an undertaking as to damages. In this case, Anyoption is a Cypriot company without significant assets in Australia. An undertaking as to damages may simply be a hollow promise unless Anyoption were required to provide security for its undertaking.
21Nurisvan’s solicitor, Ms Gerber in her affidavit sworn 7 December 2015, stated that, “The first defendant seeks to sell the shares it owes in the second defendant to a third party. It has issued a contract to a company known as Ruizean Pty Ltd for an amount of USD410,000. If the plaintiff fails in these proceedings and, because of the injunction, the first defendant has been prevented from selling the shares it owns in the second defendant, the first defendant will call upon the undertaking as to damages”.
22I received in evidence on the application, an undated document entitled “Contract for sale of Australian Company including Australian Financial Services Licence between Nurisvan Investments Ltd and Ruizean Pty Ltd” (“the Ruizean sale contract”). In her oral evidence, Ms Gerber stated that Ruizean was also a client of her firm and that she had personally been involved in the negotiation of the agreement with Ruizean’s managing director. A copy of the Ruizean sale contract had been forwarded by Nurisvan’s solicitors to Ruizean in November 2015.
23As a result of the making of the injunction order on 18 November 2015, the Ruizean sale contract had not been executed, as it was considered that this may constitute a breach of the injunction order. Nevertheless, according to Ms Gerber, the agreement between Nurisvan and Ruizean was that, if the injunction order were discharged, Ruizean would forthwith execute the Ruizean sale contract and pay the total consideration of USD410,000 into the trust account of Nurisvan’s solicitors to be dealt with in accordance with the contract.
24Pursuant to the Ruizean sale contract, when the document is executed and copies exchanged, USD123,000 will be released from the solicitors’ trust account as follows:
a.50 percent of the vendor’s legal and “arrangement” costs is to be transferred to the solicitors and other agent. In her evidence, Ms Gerber anticipated that the total of these costs would be about A$12,000;
b.the balance of about USD114,000 (about A$158,000) to Nurisvan.
25Four months later, USD287,000 would be released from the trust account as follows:
a.the balance of the legal and arrangement costs of about A$12,000;
b.the balance of USD287,000 (about USD278,000 or A$385,000) to Nurisvan.
26If the injunction order were to be discharged, the defendants' senior counsel, Mr Sirtes, offered at the hearing an undertaking on behalf Nurisvan that certain sums would be held pending the hearing and determination of the proceeding as security for any damages which may be ordered to be paid to Anyoption following the trial of the proceeding. In the defendants’ supplementary written submissions dated 16 December 2015, the undertaking was clarified as being limited to the amount first released to Nurisvan after the Ruizean share contract was executed which, less costs would be about $158,000 on current exchange rates.
27In these circumstances, Mr Sirtes submitted that any undertaking as to damages offered by Anyoption as a condition of the continuation of the injunction order should be supported by the provision of security of at least $200,000.
28In response, Mr Sowden submitted that a figure for security of no more than $100,000 was appropriate. He submitted that if Nurisvan had been able to find a purchaser for the shares in FIBO for USD410,000 that it was likely similar purchasers would be available if Anyoption were unsuccessful in the proceeding and the injunction was discharged. In those circumstances, the only loss likely to have been suffered by Nurisvan or FIBO could be compensated for by an order for the payment of interest.
29In my view, Mr Sowden’s submission is unrealistic. There is little evidence from which it could be assumed that the market by overseas companies for Australian Financial Services Licences will remain stable. The Agreement reached in this matter in December 2014 valued a licence at A$100,000. In late August, early September 2015, Nurisvan apparently considered that A$300,000 was a fair price. By November 2015, a willing purchaser was found at a price equivalent to about A$570,000.
30Accordingly, I consider that if the injunction order were to continue until trial that any undertaking as to damages would need to be supported by security for the undertaking in about the sum of A$200,000. In the further affidavit of Mr Lynch sworn 16 December 2015, he states that he has instructions from Anyoption that “if required, [it] is willing and able to post security for the undertaking as to damages and security for the defendants’ costs in the sum of AUD$250,000”.
The balance of convenience
31Anyoption submits that if the injunction order is not continued, Nurisvan will complete the sale of shares in FIBO to Ruizean, or some other purchaser. As a consequence, it will lose “the prospect of purchasing FIBO and by extension an AFSL [Australian Financial Services Licence]”. Anyoption considers obtaining a licence “to be a unique and expeditious opportunity to enter the financial services market in Australia [and that] were Anyoption to apply for its own AFSL the process could take up to twelve months without any guarantee that it would be granted an AFSL”.
32Mr Sowden, in developing this submission did not suggest that any particular licence had different qualities to those of another licence. I note, however, that clause 5.3 of the Agreement sets out the conditions of the completion of the share purchase included confirmation that:
a.“Key FIBO personnel... will remain in their current roles for a designated transition period”;
b.prudential requirements associated with the licence had been complied with.
33Further, in March 2015, ASIC had served a Notice of Hearing on FIBO “regarding a number of compliance breaches”. These matters indicate that each licence is not precisely the same and the risks associated with a purchase due to management or compliance issues may significantly affect the market value of a particular licence. It seems apparent, however, that if Anyoption were not able to acquire the FIBO licence, that it would be likely to cost more, and perhaps significantly more, than A$100,000.
34Anyoption submitted that the process of obtaining an alternative licence (to that held by FIBO) may not necessarily be successful and “could take up to twelve months”. The lack of any further detail makes it difficult to assess the effect of these matters, particularly as the trial of the proceeding is unlikely until about July 2016.
35Nurisvan submitted that the contract with Ruizean for the sale of the licence for USD410,000 would be threatened by the continuation of the injunction order. The sale of the shares to a third party would breach the terms of the Agreement, unless one of the defences raised were successful and it was determined that the Agreement could not be enforced against Nurisvan because of the lack of execution by Nurisvan, the failure to complete by Anyoption “within a reasonable time”, or other circumstances giving rise to the abandonment of the Agreement.
36I consider that, in this case, the balance of convenience generally favours the maintenance of the status quo as anticipated by the terms of the Agreement, specifically, the requirements that the parties “negotiate in good faith with respect to entering into the Share Sale Agreement” and that Nurisvan “must not negotiate with any third party about the sale of the shares”.
37A matter of significance, however, is the undertaking offered by Nurisvan to provide what is effectively security for part of any damages Anyoption might recover in the proceeding, in circumstances where it would be limited to a claim for damages if the injunction order were discharged.
38The offer of the undertaking proposed by Nurisvan’s senior counsel was diluted in the defendants’ further written submissions. The undertaking is now in terms that, if the injunction order were discharged, the first defendant would provide security, presumably by payment into Court or in a form acceptable to the plaintiff, or the Court by further order, to abide the determination of the proceeding or further order, of the sum of about A$158,000 within a specified time of Ruizean, or its nominee, executing and exchanging an agreement substantially in the form of the document entitled “Contract for Sale of Australian Company including Australian Financial Services Licence between Nurisvan Investments Limited and Ruizean Pty Ltd”.
39In my view, this is a significant matter and should be given weight, particularly in the circumstances where Nurisvan had no obligation to make the offer and, as was conceded by both parties, there would be little or no chance of Anyoption executing upon the judgment of a Victorian Court in Cyprus. However, the offer is not a matter which must overwhelm every other consideration. It is, in my view, not a factor which in circumstances where the relevant considerations favour Anyoption should persuade the Court to exercise its discretion against the continuation of the injunction order.
Security for the defendants' costs of the proceeding
40Anyoption, as a foreign company with few if any assets in Australia, would ordinarily be required to provide security for the defendants' costs of the proceeding. Mr Sowden submitted that, at this stage of the proceeding, it was appropriate that any order for security should be limited to an amount to cover the period up to and including the mediation of the dispute.
41Mr Sowden submitted that the defendants’ solicitor’s estimate of $200,000 for the defendants' costs of the proceeding, if assessed on a standard basis, was excessive. That figure is calculated as a proportion of $280,000, which Ms Gerber has estimated based on her experience as a lawyer of about 7 years standing.
42Mr Sowden submitted that the sum of $89,000, presently held in Anyoption’s solicitors’ trust account, as the balance of the purchase money for the shares in FIBO, should be a sufficient security sum for the defendants’ costs to cover substantially more than the period to the completion of mediation. Mr Sowden did not, however provide any detail of the calculations which might support his submission.
43In my view, Anyoption must provide security for the defendants’ costs. The security should be provided in three tranches; to the completion of the mediation, up to and including the first day of the trial and to the conclusion of the trial. The first tranche would include the completion of amended pleadings, requests for further and better particulars and responses, and the costs of the mediation. I consider that $50,000 would be an appropriate figure for the security Anyoption must provide, if the action were to proceed.
Proposed orders
44Accordingly, I consider that the following orders are appropriate:
1. It is noted that the plaintiff by its Counsel, Mr Sowden, gave an undertaking to the Court to abide by any order the Court may make as to damages in case the Court should hereafter be of the opinion that the defendants, Nurisvan Investments Ltd and FIBO Australia Pty Ltd, shall have sustained any, by reason of this order, which the plaintiff ought to pay.
2. Until the hearing and the determination of the proceeding or further order,
a. the first defendant is restrained from:
(i) transferring its shares in the second defendant other than to the plaintiff, and
(ii)causing or permitting the second defendant to dispose of any of its assets, otherwise than in the normal cause of the second defendant’s business;
b. the second defendant is restrained from disposing of any of its assets, otherwise than in the normal course of its business.
3.The plaintiff must:
a.by 4pm on 31 December 2015 provide security for:
(i) the defendants’ costs of the proceeding up to and including the completion of the mediation of the dispute in the sum of $50,000;
(ii) the plaintiff’s undertaking as to damages in paragraph 1 hereof, as to the first part payment, in the sum of $30,000;
b.by 4pm on 16 January 2016 for the plaintiff’s undertaking as to damages in paragraph 1 hereof, as to the second part payment in the sum of $85,000;
c.by 4pm on 31 January 2016, for the plaintiff’s undertaking as to damages in paragraph 1 hereof, as the third part payment in the sum of $85,000, making total security for that purpose of $200,000.
4.The security to be provided pursuant to paragraph 3 hereof must be paid to the Registrar of the Court (or in some other form of security agreed by the defendants in writing, or by further order, prior to the time for the provision of the security).
5.If the plaintiff fails to provide the security for the defendants’ costs of the proceeding in accordance with paragraphs 3(a) and 4 hereof:
a.the proceeding shall be forthwith stayed;
b.the injunctive relief in paragraph 2 shall be forthwith discharged.
6.If the plaintiff fails to provide any part of the security for its undertaking as to damages in accordance with paragraphs 3 and 4 hereof, the injunctive relief in paragraph 2 shall be forthwith discharged.
7.By 4pm on 22 January 2016, the plaintiff has leave to file and serve an amended statement of claim.
8.By 4pm on 16 February 2016, the defendants must file and serve their amended defences to the amended statement of claim.
9.By 4pm on 29 February 2016, the plaintiff must file and serve any reply.
10.Any request for further and better particulars of an amended pleading must be delivered within 14 days of the service of the pleading and answered within 21 days.
11.The mediation of the dispute must be completed by 25 March 2016.
12.The proceeding is set down for trial on 28 June 2016 before a judge sitting alone (estimate 2-3 sitting days).
13.The setting down fee must be paid by the plaintiff by 8 April 2016. If the plaintiff defaults, the defendant may pay the fee within 21 days. If the fee is not paid the trial date will be vacated.
14.The parties shall cooperate in completing the interlocutory processes so that the action is brought to trial as quickly as is reasonably practicable.
15.By 4pm on 15 April 2016, each party must make discovery (including full inspection) of the following documents:
a.each document referred to in the party's pleadings or the particulars of the pleadings;
b.any document which may be produced by the party at the trial during examination-in-chief, cross-examination or re-examination;
c.any document which may harm the party's case;
d.any document or class of documents which any other party reasonably requests the party to discover.
16.All other interlocutory processes will be conducted in accordance with the Rules of Court.
17.By 4pm on 20 May 2016, all parties are to file and serve all expert reports as to damages and liability upon which they intend to rely together with all supporting documentation.
18.By 3 June 2016, each party must have issued any subpoenas under Order 42A.
19.Any application to vacate the trial date must be made to the Commercial Division Duty Judge at least 30 days before the trial date.
20.Court books must be prepared by the parties, (either jointly or separately) and filed with the Court at the commencement of the hearing.
21. The parties must notify the Court if the action settles.
22. Reserve costs.
23. Reserve liberty to apply.
45The parties will be given the opportunity to comment on the proposed orders although it is intended that orders will be made on 18 December 2015.
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Certificate
I certify that the preceding 14 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 18 December 2015.
Dated: 18 December 2015
Mi-Lin Chen Yi Mei
Associate to His Honour Judge Anderson
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