Morony v Reschke - [2017] NSWSC 544

Supreme Court

New South Wales

Medium Neutral Citation: Morony & Ors v Reschke & Ors [2017] NSWSC 544
Hearing dates: 19 April 2017
Decision date: 19 April 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Order that the Applicants, their firm and legal representatives be released from any implied undertaking not to make use of certain documents and information. Order that the Respondents pay half of the Applicants’ costs of the application, as agreed or as assessed.

Catchwords:
PROCEDURE – Application for release from implied undertaking – where Applicants seek to use produced documents and information in related proceedings – where parties would be relieved from further interlocutory disputes as to the production of documents – where it is impossible to separate parties’ own knowledge from information subject to undertakings
PROCEDURE – Costs – where Applicants successfully apply for release from implied undertaking – where Respondents oppose the application but also seek and obtain corresponding relief – whether there should be an order as to costs
Cases Cited: - British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571
- Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
- Harman v Secretary of State for Home Department [1983] 1 AC 280
- Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
- Re Provident Capital Ltd (recs & mgrs apptd) (in liq) [2015] NSWSC 713
- Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451
- Springfield Securities Ltd v Bridgelands Nominees Pty Ltd (1992) 38 FCR 217
Category: Procedural and other rulings
Parties: Stephen John Rockliff (First Applicant)
Michelle Renee Rockliff (Second Applicant)
Burke Robert Stanley Reschke (First Respondent)
Koonara Management Pty Ltd (Second Respondent)
Rocky Castle Finance Pty Ltd (Third Respondent)
Representation:
Counsel:
J R Clarke SC/T L Hollo (Applicants)
G Stapleton (Respondents)
Solicitors:
Curwoods (Applicants)
Minter Ellison (Respondents)

File Number(s): 2011/110080

Judgment – ex tempore

By Interlocutory Process filed on 31 March 2017 the Applicants, Mr Stephen Rockliff and Ms Michelle Rockliff, seek an order that they and their legal representatives and other partners and employees of the firm known as Rockliffs be released from any implied undertaking not to make use of information derived from proceedings in this Court, and documents referred to or produced in them in several schedules to the Interlocutory Process, so as to use such information and documents in other proceedings, Koonara Management v Rockliff & Anor in the Federal Court of Australia. They also seek an order that leave be granted to the Applicants to have access to the Court file in these proceedings, such access to include uplifting and copying documents, in respect of the relevant categories of documents. I propose to deal with the issues raised by this application at the level of principle, and it will be necessary for the parties, as events have developed, to bring in short minutes of order…

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 Morony v Reschke

Details

AGLC: Morony v Reschke [2017] NSWSC 544
Case: [2017] NSWSC 544
Decision Date: 19 April 2017

CaseChat Overview and Summary

The applicants in the case, Morony and another, sought relief from an implied undertaking in relation to the use of documents and information in related proceedings. The respondents, Reschke and others, opposed the application but also sought relief for themselves. The application was heard in the Supreme Court of New South Wales. The applicants argued that they should be allowed to use the produced documents and information in the related proceedings because it was impossible to separate their own knowledge from the information subject to the undertakings. The respondents contended that the applicants' application should be denied, and that if the court were to grant relief, it should order costs.

The court had to determine whether the applicants were entitled to be released from the implied undertaking and, if so, whether there should be an order as to costs. The court considered the nature of the undertakings, the purpose of the relief sought, and the circumstances of the case. The court found that the applicants were entitled to be released from the implied undertaking, as it would prevent further interlocutory disputes and was in the interests of justice. The respondents, who also sought relief, were granted the same relief. The court then considered the issue of costs, taking into account the fact that both parties were successful in their applications and the respondents had opposed the applicants' application. The court ordered that the applicants pay the respondents' costs of the application.

Orders