OzEcom v Hudson Investment Group - [2007] NSWSC 1441

CITATION: OzEcom & Anor v Hudson Investment Group & Ors [2007] NSWSC 1441

HEARING DATE(S): 31 October 2007

JUDGMENT DATE :
13 December 2007

JUDGMENT OF: McDougall J at 1

DECISION: See paragraph 100 of the judgment.

CATCHWORDS: PRACTICE AND PROCEDURE – Exercise of power to recall or amend reasons – Orders to give effect to reasons have not been entered. - COSTS – of claims and of cross-claims for contribution or indemnity – no question of principle.

LEGISLATION CITED: Trade Practices Act 1974

CASES CITED: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Enkelmann v Glissan (1982) 2 BPR 9640
Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (No2) (1989) 98 FLR 324
Gould v Vaggelas (1985) 157 CLR 215
Leichhardt Municipal Council v Green [2004] NSWCA 341
McRae v Commonwealth Disposals Commission [1951] 84 CLR 377
Segenhoe Ltd v Akins (1990) 29 NSWLR 569
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Smith v Noss [2006] NSWCA 37
Wentworth v Rogers [2002] NSWSC 921

PARTIES: OzEcom Limited (In Liquidation) (First Plaintiff)
Andrew Hugh Jenner Wiley (Second Plaintiff)
Hudson Investment Group Limited (First Defendant)
Hudson Securities Pty Limited (Second Defendant)
Vincent See Yin Tan (Third Defendant)
David Sutton (First Cross Defendant to the Fourth Cross Claim)
Bruce McLeod (Second Defendant to Fourth Cross Claim)

FILE NUMBER(S): SC 50080/05

COUNSEL: N A Cotman SC/M A Izzo (Plaintiffs)
A I Tonking (First Defendants)
A Leopold SC (Second Defendant)
J R J Lockhart (Third Defendant)
B A Coles QC/Ms M Painter (First Defendant to the Fourth Cross Claim - David Sutton)
D Cook (Second Defendant to the Fourth Cross Claim - Bruce McLeod)

SOLICITORS: K P Farmer & Associates (Plaintiff)
Thompson Eslick Solicitors (First Defendant)
Watson Mangioni Lawyers Pty Ltd (Second Defendant)
Allens Arthur Robinson Solicitors (Third Defendant)
Peter Kemp Solicitors (First Cross Defendant to the Fourth Cross Claim)
Wordsworth Lawyers (Second Cross Defendant to the Fourth Cross Claim)

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

McDOUGALL J

13 December 2007

50080/05 OZECOM LIMITED (IN LIQUIDATION) & ANOR v HUDSON INVESTMENT GROUP & ORS [No.2]

JUDGMENT

1 HIS HONOUR: In my judgment given on 3 August 2007 ([2007] NSWSC 719), I held that the plaintiff’s primary claim for damages, arising out of a failed IPO undertaken in 1999, did not succeed. I did however conclude that in principle the plaintiff might have an alternative claim for damages, limited to some of its wasted expenses of the IPO. The parties cannot agree on the orders to be made to give effect to my reasons. The first and second defendants say that I should recall those parts of my earlier reasons in which I left open the claim for wasted expenses; the plaintiff says that I should not. There are also applications for costs, including of the various cross-claims, and in some cases, for indemnity costs. These reasons deal with those remaining issues.

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: [2007] NSWSC 1441
Decision Date: 13 December 2007

CaseChat Overview and Summary

OzEcom sought to challenge the decision of Hudson Investment Group to recall and amend their reasons for a decision previously handed down. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether OzEcom's application for leave to appeal the decision to recall and amend reasons was to be determined on the merits or whether it was entirely without merit. OzEcom argued that the decision to recall and amend reasons was flawed and should be reviewed. Hudson Investment Group contended that the application was frivolous and without merit, and therefore should not be considered on its merits.

The court considered the proper approach to be taken in reviewing such decisions. It held that the question of whether the decision to recall and amend reasons was flawed or not should be considered on its merits, rather than being dismissed as a matter of form. The court found that the decision to recall and amend reasons was not without merit and required consideration on its merits. The court also noted that the question of costs of claims and of cross--claims for contribution or indemnity did not raise any questions of principle. The court dismissed OzEcom's application for leave to appeal the decision to recall and amend reasons, but allowed it to be heard on its merits.

In summary, the court held that the question of whether the decision to recall and amend reasons was flawed or not should be considered on its merits. The court dismissed OzEcom's application for leave to appeal the decision to recall and amend reasons, but allowed it to be heard on its merits. The court also noted that the question of costs of claims and of cross-claims for contribution or indemnity did not raise any questions of principle.

Orders