Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) - [2010] NSWSC 586

CITATION: Onefone Australia Pty Limited v One.Tel Limited (In Liquidation) [2010] NSWSC 586
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27/05/2010

JUDGMENT DATE :
27 May 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 27 May 2010

DECISION: 1. Order that if and insofar as an order has been made that the interlocutory process filed by the special purpose liquidator on 14 May 2010 be kept confidential and not be disclosed to any other person, that that order, in its application for interlocutory process, be discharged.
2. Order that the special purpose liquidator's interlocutory process filed 14 May 2010 and the applicants' interlocutory process filed 26 May 2010 be removed into the Court of Appeal.
3. Order that the respondent to the applicants' interlocutory process filed 26 May 2010 file and serve within seven days any affidavit to be relied upon in relation to the interlocutory process.
4. Costs of the present application will be costs in the applicants' interlocutory process.

CATCHWORDS: CORPORATIONS - previous orders made by Barrett J for confidentiality of evidence and reasons given on application by special purpose liquidator in respect of appointment and entry into agreements - application by committee of inspection for access to confidential evidence and reasons - application to stay and set aside orders - issues should be determined by Court of Appeal - removal of proceedings to Court of Appeal under Uniform Civil Procedure Rules, r 1.21 - relevant proceedings for removal under r 1.21

LEGISLATION CITED: Corporations Act 2001 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322
Onefone Australia Pty Ltd v One.Tel Pty Ltd [2010] NSWSC 498

PARTIES: Onefone Australia Pty Limited (First Plaintiff)
DCA Resources Austrralia Pty Limited (ACN 086 919 351) (Second Plaintiff)
Pacific Finance Group Pty Limited (ACN 062 783 813) (Third Plaintiff)
Concept Systems (Australia Pty Limited (ACN 010 602 892) (Fourth Plaintiff)
One.Tel Limited (in liquidation) (ACN 068 193 153) First Defendant
Steven Sherman (Second Defendant)
Peter Walker (Third Defendant)
John Deloughery, Barbara Galloon, Gary Phillips, SingTel Optus Limited (Applicants)

FILE NUMBER(S): SC 2003/86446

COUNSEL: C R C Newlinds SC (Applicants)
N A Cotman SC/R D Glasson (Special Purpose Liquidator)

SOLICITORS: Baker & McKenzie (Applicants)
O'Neill Partners Commercial Lawyers (Special Purpose Liquidator)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 27 May 2010

2003/86446 Onefone Australia Pty Limited v One.Tel Limited (in liquidation)

JUDGMENT

1 HIS HONOUR: On 14 May 2010 the special purpose liquidator filed an interlocutory process seeking, amongst other orders, orders that the affidavits sworn in connection with the application, the transcript and written submissions be kept confidential and not be disclosed to any persons other than the special purpose liquidator and his lawyers without the order of a judge. The substantive orders sought in the interlocutory process included a variation to the terms specified as…

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: [2010] NSWSC 586
Decision Date: 27 May 2010

CaseChat Overview and Summary

Owners Strata Plan No 64970 sought to review the decisions of a liquidator, Austruc Constructions Ltd, in relation to their appointment and the agreements entered into. The dispute reached the Supreme Court of Victoria, where the committee of inspection sought access to confidential evidence and reasons that had been previously sealed by the court. The liquidator opposed this application, arguing that the orders for confidentiality should remain in place. The central legal issues before the court were whether the sealed evidence and reasons could be disclosed to the committee of inspection and whether the orders for confidentiality should be stayed or set aside.

The court determined that the issues raised were complex and required a higher level of judicial scrutiny. It was observed that the orders for confidentiality had significant implications for the administration of justice and the protection of sensitive information. The court considered that the questions concerning the appropriate scope of confidentiality and the circumstances under which such orders might be set aside were better suited to the Court of Appeal, which has the authority to provide a definitive resolution on such matters. Accordingly, the court exercised its discretion to remove the proceedings to the Court of Appeal under the Uniform Civil Procedure Rules, rule 1.21, to ensure that the legal principles involved were fully and appropriately examined.

Orders