Oasis Fund Management v ABN Amro - [2009] NSWSC 967

CITATION: Oasis Fund Management v ABN Amro [2009] NSWSC 967

HEARING DATE(S): 8 September 2009

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 8 September 2009

DECISION: See paragraphs [25] to [28] of the judgment.

CATCHWORDS: PRACTICE - whether to order mediation - question of timing - whether sufficient information available to parties - no question of principle.

LEGISLATION CITED: Civil Procedure Act 2005

CATEGORY: Procedural and other rulings

CASES CITED: Dimento v Dimento [2007] NSWSC 420

PARTIES:
Oasis Fund Management Limited (First Plaintiff)
Oasis Asset Management Limited (Second Plaintiff)
Robert Anthony Ford (Third Plaintiff)
Harold Keith Manns (Fourth Plaintiff)
ABN Amro Bank NV (First Defendant)
Deon Joubert (Second Defendant)

FILE NUMBER(S): SC 50183/08

COUNSEL: J Lockhart / M Nagy (Plaintiff)
M J Darke (First Defendant)
R Carey (Second Defendant)

SOLICITORS: Johnson Winter & Slattery (Plaintiffs)
Blake Dawson (First Defendant)
Wotton + Kearney Lawyers (Second Defendant)

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

McDOUGALL J

8 September 2009 (ex tempore – revised 8 September 2009)

50183/08 OASIS FUND MANAGEMENT v ABN AMRO BANK NV

JUDGMENT - Application for proceedings to be referred to
mediation

1 HIS HONOUR: The plaintiffs seek an order pursuant to s 26 of the Civil Procedure Act 2005 that these proceedings be referred to mediation. The first defendant opposes mediation at this time. The second defendant neither consents to nor opposes mediation at this time. Likewise, those of the cross-defendants who are not otherwise parties neither consent to nor oppose mediation at this time.

2 The plaintiff seeks early mediation for a number of reasons. One is that, if there is no early or successful mediation, the costs of giving discovery and of putting on evidence will be high, and will of themselves be an obstacle to successful mediation at a later time. Another reason is that those who stand to benefit by success in the proceedings, and therefore by a fruitful mediation, are investors many of whom are old, many of whom relied on the investments in question to fund their retirement, and some of whom are suffering from financial distress because of the difficulties with the investment in question.

3 The first defendant opposes mediation at the present time for three reasons. One is that, absent discovery and evidence, it cannot make a realistic assessment of the strength and weaknesses of the case against it and its defence to that case. Another, perhaps somewhat inconsistent reason, is that even with no formal mediation, the parties could in any event engage in informal negotiations. The third, which in my view goes no further than the first, is that its "considered preference to continue the proceeding", is of itself a factor to take into account. The quotation comes, and the submission is based upon, the judgment of Brereton J in Dimento v Dimento [2007] NSWSC 420 at [1].

4 It is necessary to know a little about the case. The first plaintiff is 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.

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Details

Case: [2009] NSWSC 967
Decision Date: 8 September 2009

CaseChat Overview and Summary

Oasis Fund Management brought an action against ABN Amro, seeking compensation for losses allegedly incurred due to misleading or deceptive conduct. The dispute centred around whether ABN Amro provided adequate information regarding certain financial products, leading to the plaintiff's investment decisions. The Federal Court of Australia was tasked with deciding the preliminary matter of whether to order mediation and, if so, the appropriate timing.

The legal issue before the court was whether it should order the parties to engage in mediation and, if so, at what stage in the proceedings. The court was required to balance the need for early resolution of disputes with the necessity for parties to have sufficient information to make informed decisions about mediation. The court examined the circumstances of the case to determine if the timing of the mediation order was appropriate.

The court determined that there was no principled reason to order mediation at that stage of the proceedings. It was found that the parties did not have sufficient information available to them to make an informed decision about whether to mediate. The court emphasised that the decision was not about the merits of mediation itself but rather about the timing, given the current state of the case. The court concluded that the matter should proceed to a further stage before considering mediation.

The court ordered that the matter would continue to proceed, with the option of mediation being revisited at a later stage. This decision ensured that the parties would have adequate information to make an informed decision about mediation, aligning with the court's goal of facilitating efficient and effective dispute resolution.

Orders