CLSA Australia Pty Ltd v Golden Energy and Resources Limited
[2021] NSWSC 510
•11 May 2021
Supreme Court
New South Wales
Medium Neutral Citation: CLSA Australia Pty Ltd v Golden Energy and Resources Limited [2021] NSWSC 510 Hearing dates: On the papers Decision date: 11 May 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Partial disclosure granted
Catchwords: CIVIL PROCEDURE — Disclosure — Classes or categories of documents
Category: Procedural rulings Parties: CLSA Australia Pty Ltd (Plaintiff)
Golden Energy and Resources Limited (Defendant)Representation: Counsel:
Solicitors:
P Knowles (Defendant)
Brightstone Legal (Plaintiff)
Norton Rose Fulbright (Defendant)
File Number(s): 2020/00308363
Judgment
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The Plaintiff, CLSA Australia Pty Ltd (“CLSA”) and the Defendant, Golden Energy and Resources Limited (“GEAR”) entered an agreement on 11 December 2018 pursuant to which CLSA agreed to provide corporate advisory services to GEAR in relation to a possible future takeover by GEAR of Stanmore Coal Limited (“Stanmore”).
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By 18 May 2020, GEAR had obtained a 75.33% shareholding in Stanmore.
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These proceedings concern CLSA’s entitlement to certain contingent success fees in relation to that matter.
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There is a dispute between the parties as to whether the original 11 December 2018 agreement was terminated and replaced by a later agreement providing for lower renumeration or whether the original agreement was varied to like effect.
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I am dealing with competing motions for disclosure of documents.
CLSA’s Motion
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CLSA seeks documents “referring to” the “termination” and “fee tail” provisions in the 11 December 2018 agreement.
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These documents are said to be relevant to GEAR’s defence of estoppel by convention.
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They are likely to involve internal communications of GEAR evidencing whether GEAR was operating under the assumption it alleges, namely, that the 11 December 2018 agreement was terminated on the various dates.
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CLSA’s motion seeks documents “referring” to the identified provision and is thus narrowly focused.
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The documents sought appear relevant to the issues. GEAR should give disclosure as sought by CLSA.
GEAR’s Motion
Category One
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This category seeks:
“All documents referring to or recording Mark Dorney’s non-compliance with CLSA’s Operations Manual described in paragraph 8 of the affidavit of Pui Lam Wat affirmed 15 March 2021”.
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The relevant paragraph of Mr Wat’s affidavit is to the effect that “all staff” “always complied” with the Operations Manual referred to.
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The difficulty with the category as drawn is that it would require production of documents referring to any non-compliance by Mr Dorney with the Operations Manual, whether presently known to CLSA or not.
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GEAR could only reasonably seek documents referring to any non-compliance of the Operations Manual which has come to light. Otherwise CLSA would have to conduct a fresh investigation into whether some hitherto unknown non-compliance had occurred.
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In those circumstances I accept CLSA’s submission that it should give discovery in accordance with what it described as its “Reformulated Category” as follows:
“All documents prepared or received by CLSA Human Resources or CLSA Compliance referring to or recording Mark Dorney’s non-compliance with CLSA’s Operations Manual described in paragraph 8 of the affidavit of Pui Lam Wat affirmed 15 March 2021.”
Category Two
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This category is agreed.
Category Three
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This category seeks production of:
“All documents prepared in advance of, recording or referring to the meeting on 28 June 2019 between CLSA and GEAR at CLSA’s office in Sydney, including any agenda prepared for the meeting and any notes taken of the meeting”.
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Although the meeting of 28 June 2019 is not referred to in the pleadings, it is referred to in affidavit evidence.
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Mr Knowles for GEAR submitted that the “events of that meeting” are relevant to the issues of the proceedings in a number of respects including that CLSA’s subjective understanding of the contractual relationship between the parties at that date, this being relevant to GEAR’s conventional estoppel claim.
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However, the category should be narrowed obliging disclosure only of documents recording or referring to what occurred at the meeting.
Categories Four to Six
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GEAR seeks the following three categories of documents:
“All documents recording or referring to the decision to contact Mark Zhou on 2 July 2020, including without limitation all emails to Bao Nguyen in relation to GEAR.
All documents recording or referring to the telephone conversation on 9 July 2020 between Bao Nguyen of CLSA and Mark Zhou of GEAR, including without limitation emails sent by Bao Nguyen referring to the conversation.
All documents recording or referring to the discussion(s) mentioned in the email dated 8 September 2020 from Bao Nguyen of CLSA to Mark Zhou of GEAR”.
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These categories are relevant to the issues of the invoice which is the subject of these proceedings, a telephone call regarding the same, and a subsequent email confirming CLSA’s position that the invoice was due and payable.
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Mr Knowles submitted that these documents are likely to disclose whether, in making the demands for payment, CLSA departed from the assumption the subject of GEAR’s estoppel by convention allegation.
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The documents sought are capable of being relevant to this issue and should be disclosed.
Conclusion
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The parties should confer and agreed on the orders necessary to give effect to these reasons.
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Each party has some measure of success and I propose to order that the cost of each motion be the parties costs in the proceeding.
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This matter is currently listed for directions on 4 June 2021.
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Decision last updated: 11 May 2021
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