In the matter of FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd - [2017] NSWSC 630

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: In the matter of FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd [2017] NSWSC 630
Hearing dates: 11 May 2017
Decision date: 11 May 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Order that, until further order, publication or other disclosure of a certain figure appearing in the judgment in Re FAL Healthy Beverages Pty Limited and FAL Retail Pty Limited [2017] NSWSC 476 is prohibited, except so far as such publication occurred prior to the date of making of this order. Dismiss the Applicants’ application that the judgment be recalled and amended. Order that the Applicants pay half the Plaintiff’s costs of and incidental to the application as agreed or as assessed.

Catchwords:
EVIDENCE – Prohibition of publication of evidence – Statutory powers – Application by certain Defendants, for whom judgment was given by consent, for non-publication order in respect of settlement sum – where sum published in judgment given in contested proceedings against another Defendant
PRODEDURE – Judgments and orders – Amending, varying and setting aside – Application for recall and amendment of judgment – whether aspects of judgment inconsistent with judgment for Applicant by consent
Legislation Cited: - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7–8, 12
Cases Cited: - Marshall v Prescott (No 3) [2013] NSWSC 1949
- Missingham v Shamin [2012] NSWSC 288
- Victorian Lawyers RPA Ltd v Werden [2006] VSC 73
Texts Cited: G Spencer Bower and K R Handley, 4th ed, 2009, Res Judicata
Category: Procedural and other rulings
Parties: FAL Healthy Beverages Pty Ltd (First Plaintiff)
FAL Retail Pty Ltd Pty Ltd (Second Plaintiff)
Timothy (Tim) Xenos (also known as Efthymios Xenos) (First Defendant)
EZI Group Pty Ltd (Second Defendant)
Fence All Australia Pty Ltd (Third Defendant)
Ashton Accountants & Business Advisors Pty Ltd (Fourth Defendant)
Andrew Ashton (Fifth Defendant)
ACN 111 804 383 Pty Ltd trading as Yates Beaggi Lawyers (Sixth Defendant)
Yates Amirbeaggi Pty Ltd trading as Yates Beaggi Lawyers) (Seventh Defendant)
Farshad Amirbeaggi (Eighth Defendant)
Representation:
Counsel:

J A Arnott (Plaintiffs)
I R Pike SC (Sixth to Eighth Defendants)
Solicitors:
Dentons (Plaintiffs)
Yeldham Price O’Brien Lusk (Sixth to Eighth Defendants)

File Number(s): 2016/80389

Judgment – ex tempore (revised 19 may 2017)

By Interlocutory Process filed on 4 May 2017, the Sixth, Seventh and Eighth Defendants, a corporate entity trading as Yates Beaggi Lawyers and others (“Yates Beaggi”), initially sought an order that my judgment in Re FAL Healthy Beverages Pty Limited and FAL Retail Pty Limited [2017] NSWSC 476 (“Judgment”) be recalled and certain paragraphs of the Judgment corrected to be consistent with certain matters.

Application for redaction of figures in Judgment

By application made orally, Mr Pike, who appears for Yates Beaggi, initially made a narrower application, while foreshadowing that the balance of the application will be reserved and shortly made. That narrower application is that two figures which appeared in paragraphs 2 and 165 of my Judgment, recording the amount of a payment made by Yates Beaggi to the Plaintiffs, before consent orders were made giving judgment for Yates Beaggi in the proceedings, should be the subject of a non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW).
I should first refer briefly to the context of the application, which I will seek to put in an uncontroversial way, reflecting what is common ground between the parties as to the relevant events. As I noted in my Judgment, and as is common ground on this application, orders were made by consent in the proceedings on 17 February 2017 providing for judgment for Yates Beaggi. An issue arose at the hearing, which did not involve Yates Beaggi, as between the First Defendant, Mr Xenos, and the Plaintiffs, FAL Healthy Beverages Pty Limited and FAL Retail Pty Limited, as to whether an amount recovered by the Plaintiffs from Yates Beaggi under the settlement between them (implemented by the consent orders giving judgment for Yates Beaggi) should be set off against the amount of any judgment against Mr Xenos. I addressed the relevant issues and the relevant case law in paragraphs 165–169 of my Judgment.
The issue arose following the issue of a notice to produce by Mr Xenos to the Plaintiffs, requiring production of, broadly, the terms of any settlement with Yates Beaggi. That notice to produce was stood over on several occasions, and the Court was informed that correspondence was taking place, inter alia, with the solicitors acting for Yates Beaggi concerning the production of that document. An extract of the document was ultimately produced, and a bank record was produced recording a payment made by Yates Beaggi to the Plaintiffs.
Those documents were tendered, at the hearing, on 1 March 2017, and Mr Arnott, who appeared for the Plaintiffs, sought an order restricting access to those documents. As I understood it, Mr Arnott sought that order because there were agreements inter partes between the Plaintiffs and Yates Beaggi as to the confidentiality of the terms of the settlement. There was then an exchange with Counsel for Mr Xenos as to the fact that he needed access to the documents because of their significance to the issue of set off which he sought to address. I observed that there was a further difficulty so far as I would need to address that issue in any judgment, and Mr Arnott observed that, if I felt it was necessary in my reasons to disclose the information contained in the documents, then the order would need to lapse.
Mr Arnott also fairly accepted, importantly, that what was being sought was not a non-publication order under the Court Suppression and Non-publication Orders Act, so there was not then and has never been, any restriction on the publication of the document, because no such restriction was sought. Because no such restriction was sought, no question arose as to whether the requirements for the grant of such an order under the Court Suppression and Non-publication Orders Act were satisfied.
The figure that Yates Beaggi now seeks to have redacted is found at two points in my Judgment, the first of which records, by way of introduction, the origin of the proceedings and the circumstances in which several Defendants, including Yates Beaggi, were no longer party to the final hearing and the proceedings continued against Mr Xenos alone. The second occasion on which that figure occurs is where I address the question of any set-off of the payment made by Yates Beaggi to the Plaintiffs against the judgment against Mr Xenos. I there referred to the terms of the deed as between the Plaintiffs and Yates Beaggi, and the basis on which the payment was made by Yates Beaggi, to determine whether that payment ought properly be set off against the amount of damages ordered against Mr Xenos.
I have noted above that no application was made, at that time, by Yates Beaggi for an order under the Court Suppression and Non-publication Orders Act, including in respect of that figure. I do not accept Mr Pike’s submission that Yates Beaggi did not have the opportunity to seek such an order. It seems to me that it plainly had that opportunity, so far as there had been a period of delay in respect of the tender of the documents, while its solicitors were consulted, and it must have been apparent to it that Mr Xenos sought to tender the documents. In the ordinary course, it would not have been difficult to infer the purpose for which Mr Xenos was likely to use the documents. I also do not accept Mr Pike’s submission that Yates Beaggi would have needed to attend the several days of the hearing to which it was no longer an active party in order to make such an application. It could have attended for a short time of its choice once it became apparent that Mr Xenos would seek to rely on the relevant deed of settlement or an extract from it, to seek such orders as it considered appropriate to protect its interests. I regard that as a neutral factor, not a negative factor, for Yates Beaggi’s application. Although the fact that an application was not made then is relevant to the manner in which matters previously proceeded, it is not a reason that such an application cannot be made now or should not be granted now if properly based.
I should add that the figure appeared in my Judgment, as delivered and published on 27 April 2017, as an aspect of the reasoning process to which I have referred above. When this application was foreshadowed by Yates Beaggi, the figure was then redacted in the Judgment as it was published in Case Law, with a notation that it was masked pending this application. It follows that the figure was publicly available for a relatively short period, but is not now publicly available on Case Law. The Court could continue that position by simply continuing the redaction that is already in place, and making a non-publication order, to the extent that the figure is not already known to persons who may have had access to it in the period in which it was public.
I turn now to the question whether a non-publication order should be made over that figure, which seems to me to raise issues of much less difficulty than arise in respect of other aspects of the relief sought by Yates Beaggi. Counsel have drawn my attention to three relevant aspects of the Court Suppression and Non-publication Orders Act. First, s 7 of the Act permits the Court to make a non-publication order under the grounds permitted by the Act which prohibits the publication or disclosure of information, relevantly, information that comprises evidence given in proceedings before the Court. Section 8 provides for the grounds on which such an order can be made, and Mr Pike identified two potential grounds of such an application. Section 8(1)(a), on which Mr Pike placed primary reliance, provides that the Court may make a suppression order or non-publication order where the order is necessary to prevent prejudice to the proper administration of justice. Section 8(1)(e) alternatively permits such an order where it is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice. Section 12 deals with the duration of the order that is to be made.
Mr Pike draws attention to two decisions which seem to me to be of assistance in determining this application. In Missingham v Shamin [2012] NSWSC 288, Ward J (as her Honour then was) dealt with the position where the Court had inadvertently published a figure, which was the subject of a claim to confidentiality, in an ex tempore judgment, and a non-publication order was then sought in respect of that figure. A submission was there made that the reference to the material in the judgment can only have been an oversight, where the deed was tendered as a confidential exhibit. Mr Pike fairly recognises that the case is distinguishable on that basis, since the reference to the figure in this case was not an oversight. That figure was here referred to in the Judgment in this case because it was a step in my reasoning process, to deal with an issue that had been squarely raised and had been the subject of substantial focus before me, and in circumstances where, as I noted above, the confidentiality that existed was an inter partes obligation only; no application for a non-publication order had been sought or made under the Court Suppression and Non-publication Orders Act; and the prospect that the figure would be referred to in the Judgment had been squarely raised at the hearing, albeit at a time that Yates Beaggi were not present.
Ward J there noted the requirement, in exercising the statutory jurisdiction under the Court Suppression and Non-publication Orders Act, that suppression be necessary for one or other of the reasons in s 8 of the Act. Her Honour also recognised that the publication of a judgment on the Case Law website would not necessarily defeat the confidentiality of information contained in it, where there may be a question as to the extent to which it had then been accessed or downloaded. In any event, one would infer that, where a judgment had been available for a relatively short period, the redaction of information contained in it, going forward, would at least limit the extent to which that information further passed into the public domain.
The second judgment to which Mr Pike refers is the decision in Victorian Lawyers RPA Ltd v Werden [2006] VSC 73, where Habersberger J recognised a public interest in the settlement of disputes, and relied on that public interest in recognising a party's legitimate interest in having the amount of any payment kept confidential. Again, it seems to me that there are two significant distinctions between that case and the present case. The first is that it was not dealing with the position under the Court Suppression and Non-publication Orders Act which was intended to reduce the circumstances in which the public interest in the open administration of justice is compromised by inter partes confidentiality arrangements. The second is that that case was not dealing with the position, as here, where the disclosure of information was made in the course of reasoning in a judgment addressing a matter that was squarely in issue in the proceedings, in deciding that particular issue.
Turning now to the relevant provisions, it does not seem to me that the requirement for making of a suppression order under s 8(1)(a) of the Court Suppression and Non-publication Orders Act is satisfied. It does not seem to me that it could be said that the order is necessary to prevent prejudice to the proper administration of justice. In particular, it does not seem to me that the administration of justice would be prejudiced by reference to the figure in the course of reasoning that decides an issue to which the figure relates. I accept that, as Mr Pike points out, there is a public interest in promoting settlement, and there may well be a public interest in also preserving the confidentiality of figures in settlement, in order to promote such settlement. It does not follow, at least in an unqualified way, that it can be said, as it would need to be said for the purposes of s 8(1)(a) of the Act, that an order preventing publication of such a figure is necessary, in circumstances that that figure is relevant to the Court's reasoning as to a particular issue.
It seems to me that s 8(1)(e) of the Act raises somewhat different considerations. The concept of necessity is still used in that paragraph, but it seems to me it there contemplates a weighing of competing interests, namely the interest in preserving the confidentiality of information and the efficacy of settlements on the one hand and the public interest in open justice on the other. When that weighing exercise is undertaken in this case, there is a public interest, to which Mr Pike points, in preserving the confidentiality of information contained in the settlement agreement between the Plaintiffs and Yates Beaggi, in order to encourage the settlement of proceedings. The public interest in open justice seems to me to be qualified, because open justice requires that the public be able to follow the reasoning process which I have adopted, and that will be possible even if the particular figure which appears in that reasoning process is redacted. In those circumstances, it seems to me that the public interest in the order being made, in order to promote settlements involving money payments which parties may seek to keep confidential between themselves, does outweigh the public interest in open justice, at least where the particular figure is not necessary to follow the reasoning in the Judgment. Had Yates Beaggi made an application under the Court Suppression and Non-publication Orders Act during the hearing and prior to publication of the Judgment, I may well have made such an order, although there may have then been more uncertainty than there is now as to the necessity of the figure to my reasoning process. Where I would potentially have made such an order then, then it seems to me that I can also make such an order now. There will be public benefit in that order, in promoting the efficacy of settlements, as well as private benefit for Yates Beaggi, and no detriment to the public interest for the reasons that I have noted above.
I noted above that there is also a question as to the duration of the order under s 12 of the Act. Where the order is based on a claim to confidentiality, and there is no reason to think that that confidentiality will dissipate over time, then it seems to me that the order should extend for a longer rather than a shorter period. This is not a case, for example, where information is temporarily confidential, but its confidentiality will be lost by reason of some future publication of it, or by way of technology change that means it is no longer relevant. In those circumstances, it seems to me that the proper form of order is an order that applies until further order, which is a common form in which such orders are made as to confidential information.
Accordingly, I make an order that, until further order, pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act upon the ground of s 8(1)(e) of the Act, being that such an order is necessary in the public interest and that the public interest significantly outweighs the public interest in open justice, at least in respect of the specific information that is the subject of the order, publication or other disclosure of the figure appearing between the words “payment of” and “made by Yates Beaggi” in paragraph 2 of the Judgment and the figure appearing between the words “payment of” and “made by Yates Beaggi” in paragraph 165 of the Judgment is prohibited, except so far as such publication occurred prior to the date of making of this order. This order applies throughout the Commonwealth of Australia.

Application for recall and amendment of Judgment

By their Interlocutory Process filed on 4 May 2017, Yates Beaggi also seeks to have the Judgment recalled and certain paragraphs amended, so as to be consistent with certain matters to which they refer. I will address those paragraphs and the submissions in respect of them successively.
By way of background, Yates Beaggi and interests associated with it had initially been the Sixth–Eighth Defendants in the proceedings. Orders were made on 17 February 2017, by consent as between the Plaintiffs and Yates Beaggi, giving judgment for the Sixth, Seventh and Eighth Defendants. Those orders reflected the fact that, as I observed in my Judgment, the Plaintiffs had settled their claims against Yates Beaggi and its principals, by a deed dated 8 February 2017 on terms of a payment of [amount redacted] made by Yates Beaggi to the Plaintiffs.
Yates Beaggi submit that several paragraphs of the Judgment should be recalled and corrected. That raises both a broader and a narrower issue. The broader issue, to which Yates Beaggi refer, is the application of principles of issue estoppel and res judicata. They refer to the summary of the relevant principles in Marshall v Prescott (No 3) [2013] NSWSC 1949 where Beech-Jones J noted the circumstances in which, relevantly, a res judicata or issue estoppel might arise from, inter alia, a consent judgment. They also refer to the discussion of this issue in Spencer Bower and Handley: Res Judicata, chapter 2. However, the present case does not involve the Plaintiffs, FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd, pursuing a further claim against Yates Beaggi, having previously consented to judgment in favour of Yates Beaggi. This is instead a case where the Court has delivered its Judgment, following a lengthy trial on the merits, in respect of a claim by the Plaintiffs against the First Defendant, Mr Timothy Xenos, where facts relating to actions of Yates Beaggi, as solicitors acting for, inter alia, Mr Xenos, were an essential issue in the determination of the proceedings against Mr Xenos, and were reviewed at some length in the course of the proceedings and in the Judgment.

It may be accepted that it was not open to the Plaintiffs to assert that Yates Beaggi were liable to them, in a way that was inconsistent with the consent orders giving judgment for Yates Beaggi, at least after the point at which settlement had occurred. I do not accept that it was not open to the Plaintiffs to contend, in response to Mr Xenos’ claim for set-off in the proceedings against him, that their claims against Yates Beaggi were seriously arguable, at least up to the point that they were settled on the basis of payment of a money amount by Yates Beaggi to the Plaintiffs. It does not seem to me that that proposition (so far as it is directed to the assessment of the claim prior to the settlement) is affected, one way or another, by the fact of the orders giving judgment for that firm, by consent, pursuant to that settlement.
Turning now to the particular paragraphs which were at issue in respect of the Judgment, Mr Pike submits that paragraph 2 of my Judgment should be corrected to make clear that the amount referred to in that paragraph was not said to be on account of damages, and that reference should be made to the fact that consent judgment has been entered in favour of Yates Beaggi in the claim brought by the Plaintiffs. It does not seem to me that the former correction is required, because the paragraph makes clear, in its present terms, that what occurred was a payment by Yates Beaggi to the Plaintiffs in settlement of the proceedings, and that paragraph could not reasonably be read as indicating the payment was on account of damages rather than in connection with the settlement.
It does not seem to me that the latter correction is required, because what I was determining in my Judgment was a case against Mr Xenos, not a case against Yates Beaggi, and all that was required for the purposes of the Judgment was a fair account of the background to the proceedings, and the circumstances in which several parties against which the proceedings had been commenced no longer appeared at the hearing. It seems to me that what I said in paragraph 2 of the Judgment provided a fair account of those matters. It was not necessary for me to go further to explore other aspects of, for example, the position of the Third, Fourth or Fifth Defendants, against whom proceedings were not continued in the circumstances to which I there broadly referred, or the position of Yates Beaggi, or how the settlement against that firm and its associated persons was implemented. There was no more reason to record that a consent judgment was entered in favour of Yates Beaggi (as occurred), than there would have been to record that there was a discontinuance by leave (if that had occurred), or that there was a dismissal of the proceedings (if that had occurred), or to explain the implications of each such approach, because none of those matters was relevant to the case that I had to determine, which was, I again note, the Plaintiffs’ case against Mr Xenos, not a case against Yates Beaggi.
Yates Beaggi also seek an amendment to paragraph 159 of the Judgment by deleting the words “with at least some assistance by Yates Beaggi (through Mr Amirbeaggi)” in that paragraph. It is not submitted that those observations were not properly founded in the evidence or did not have a proper factual basis. It is instead submitted that they were inconsistent with the consent orders giving judgment for Yates Beaggi and were not necessary to my Judgment. The Plaintiffs, represented by Mr Arnott, respond that no claim of knowing assistance had been brought by the Plaintiffs against Yates Beaggi or determined by the consent orders giving judgment for that firm and, in any event, the statement in paragraph 159 of the Judgment is a factual finding by the Court, not a statement as to liability on the part of Yates Beaggi. Both of those propositions seem to me to be correct. The finding that Mr Amirbeaggi provided at least some assistance to the relevant conduct of Mr Xenos is a finding of fact, not a finding that Mr Amirbeaggi or his firm was liable for knowing assistance in any breach of duty by Mr Xenos. A finding as to liability was not necessary to my Judgment and would have been inconsistent with the consent orders giving judgment for Yates Beaggi in the proceedings against that firm, but was not made.
It seems to me that the observation that Yates Beaggi seek to have amended or deleted was necessary to give a fair account of the facts as I had found them, based on a detailed analysis of transactions and dealings with Yates Beaggi to which I had referred in the several previous pages of the Judgment. What I was there seeking to do was to indicate what I had found against Mr Xenos, and my finding against Mr Xenos was that he had engaged in conduct, which I described as a “conscious and concerted effort” to disguise the underlying work that was performed by Yates Beaggi on his behalf. The reference to Mr Amirbeaggi’s assistance, as a finding in the case against Mr Xenos, was relevant, because a reference to the conduct of Mr Xenos that did not recognise his solicitor’s role would have been inconsistent with the facts that I had found. That finding was not, and could not be read as, a finding of liability on the part of Mr Amirbeaggi or his firm. It is plain enough, as Mr Pike points out, that the case against that firm had concluded by a consent judgment in their favour, in connection with the settlement to which I referred in paragraph 2 of my Judgment.
Next, Yates Beaggi suggest that paragraph 165 of my Judgment should be corrected, consistent with the correction that Yates Beaggi seek to paragraph 2 of my Judgment. The primary correction which now seems to be sought is a reference to the consent judgment in favour of Yates Beaggi in respect of the proceedings. I do not consider that alteration is necessary in order to fairly record relevant events, so far as it is necessary to determine the case against Mr Xenos, for the reasons I indicated in dealing above with the correction sought to paragraph 2 of the Judgment.
Finally, a correction is sought to paragraph 169 of my Judgment, where I found that the claims brought by the Plaintiffs against Yates Beaggi were substantial and seriously arguable and that the recovery made by them against Yates Beaggi should properly be attributed to those claims and to costs before any credit was allowed from that recovery against damages awarded against Mr Xenos. Mr Arnott responds that, so far as I found that the claims against Yates Beaggi were substantial, that was so as a matter of fact. It seems to me that that proposition is uncontroversial so far as the size of the claim against that firm was concerned. The finding that the claim was seriously arguable was a finding on the merits, which was necessary to my Judgment, because an issue had been raised by Mr Xenos whether the amount paid by Yates Beaggi in connection with the settlement should be set off against the damages recoverable by the Plaintiffs against Mr Xenos. In particular, Mr Xenos had raised an issue as to whether the entirety of the payment made by Yates Beaggi should be attributed to one aspect of the claim against Yates Beaggi so as to support his claim for set-off of it against the claim against him, and that in turn required me to determine whether other aspects of the claim against Yates Beaggi were seriously arguable. I reviewed the relevant case law in the Judgment, and matters which were relevant to determining whether Mr Xenos’ claim for set-off should be allowed included the issues which I addressed, namely, whether the claims against Yates Beaggi were properly arguable and whether the payment that was made should be attributed to particular aspects of those claims.
Here, I was not determining any claim between the Plaintiffs and Yates Beaggi. I was instead determining Mr Xenos' defence to the claim brought by the Plaintiffs against him. From time to time, it will be necessary, as here, to reach findings as to third party conduct in order to determine claims between the parties to the proceedings. Nothing in that finding involves any unnecessary finding in respect of the position as to Yates Beaggi, and the conclusions that I reached reflected the reasoning which precedes them. In these circumstances, it does not seem to me that that paragraph could properly be recalled, or amended, without distorting the reasoning process which I adopted, which was necessary to determine the position as between the Plaintiffs on the one hand and Mr Xenos on the other.
For these reasons, I am not satisfied that the paragraphs of the Judgment which Yates Beaggi seek to amend involve error, or any unfairness as against Yates Beaggi, recognising that, first, as Mr Pike has pointed out, there has been judgment in the Sixth–Eight Defendants’ favour in the proceedings brought by the Plaintiffs against them, by consent, and, second, that they were no longer party to the relevant proceedings that went to hearing before me, and that no findings that I reached in those proceedings bind them. For these reasons, the second aspect of the Interlocutory Process, so far as it seeks that certain paragraphs of my Judgment be recalled and corrected in the manner for which Yates Beaggi contends, should be dismissed.

Costs

Following delivery of my judgment, the Plaintiffs sought their costs of their appearance today. It seems to me that the Plaintiffs had a legitimate interest in seeking to defend the Judgment in their favour, in circumstances where an application was made to recall it, which may or may not have affected the position as between them and Mr Xenos, and an application was also made to amend findings which I have found were essential to the determination of their case against Mr Xenos. Yates Beaggi were successful in one aspect of the application, which is an order redacting a figure that appears in two paragraphs of the Judgment, under the Court Suppression and Non-publication Orders Act, but unsuccessful in respect of the application to redact the Judgment as I have noted. It seems to me that there should be no order as to costs in respect of that first matter. No order was sought or should be made that the Plaintiffs pay Yates Beaggi's costs, where this application was first made by Yates Beaggi today, not at the hearing, and where the Plaintiffs were not, in truth, opponents to it.
So far as the second aspect of the application, seeking a recall and amendment of the Judgment is concerned, the Plaintiffs were successful in defending a judgment in which they had an interest, against an application which was adverse to that interest. On that basis the Sixth, Seventh and Eighth Defendants should pay the costs of that aspect of the application. It seems to me that that matter can be addressed, in a broad and cost effective way, by an order that the Sixth, Seventh and Eighth Defendants pay half of the Plaintiffs' costs of and incidental to the hearing today. I therefore order that the Sixth, Seventh and Eighth Defendants pay half of the Plaintiffs' costs of and incidental to the application today, as agreed or as assessed.

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Amendments

25 May 2017 - Amendment of headnote

Decision last updated: 25 May 2017

Medium Neutral Citation:	In the matter of FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd [2017] NSWSC 630
Hearing dates:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	Order that, until further order, publication or other disclosure of a certain figure appearing in the judgment in Re FAL Healthy Beverages Pty Limited and FAL Retail Pty Limited [2017] NSWSC 476 is prohibited, except so far as such publication occurred prior to the date of making of this order. Dismiss the Applicants’ application that the judgment be recalled and amended. Order that the Applicants pay half the Plaintiff’s costs of and incidental to the application as agreed or as assessed.
Catchwords:	EVIDENCE – Prohibition of publication of evidence – Statutory powers – Application by certain Defendants, for whom judgment was given by consent, for non-publication order in respect of settlement sum – where sum published in judgment given in contested proceedings against another Defendant PRODEDURE – Judgments and orders – Amending, varying and setting aside – Application for recall and amendment of judgment – whether aspects of judgment inconsistent with judgment for Applicant by consent
Legislation Cited:	- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7–8, 12
Cases Cited:	- Marshall v Prescott (No 3) [2013] NSWSC 1949 - Missingham v Shamin [2012] NSWSC 288 - Victorian Lawyers RPA Ltd v Werden [2006] VSC 73
Texts Cited:	G Spencer Bower and K R Handley, 4th ed, 2009, Res Judicata
Category:	Procedural and other rulings
Parties:	FAL Healthy Beverages Pty Ltd (First Plaintiff) FAL Retail Pty Ltd Pty Ltd (Second Plaintiff) Timothy (Tim) Xenos (also known as Efthymios Xenos) (First Defendant) EZI Group Pty Ltd (Second Defendant) Fence All Australia Pty Ltd (Third Defendant) Ashton Accountants & Business Advisors Pty Ltd (Fourth Defendant) Andrew Ashton (Fifth Defendant) ACN 111 804 383 Pty Ltd trading as Yates Beaggi Lawyers (Sixth Defendant) Yates Amirbeaggi Pty Ltd trading as Yates Beaggi Lawyers) (Seventh Defendant) Farshad Amirbeaggi (Eighth Defendant)
Representation:	Counsel: J A Arnott (Plaintiffs) I R Pike SC (Sixth to Eighth Defendants) Solicitors: Dentons (Plaintiffs) Yeldham Price O’Brien Lusk (Sixth to Eighth Defendants)
File Number(s):	2016/80389