Press v iSam Securities (UK) Ltd - [2024] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Press v iSam Securities (UK) Ltd [2024] NSWCA 260
Hearing dates: 29 October 2024
Date of orders: 31 October 2024
Decision date: 31 October 2024
Before: Ward P; Griffiths AJA
Decision:
1. The application for leave to appeal filed on 4 September 2024 is dismissed.
2. The applicants are to pay the respondents’ costs.

Catchwords:
APPEALS — leave to appeal — interlocutory orders — orders for preliminary discovery — whether applicants have identified principle of general application or a question public importance or any substantial injustice — where leave to appeal denied

Legislation Cited:
Australian Consumer Law, s 18
Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 5.2, 5.3, 36.16

Cases Cited:
Counter Building and Construction Pty Ltd v Kerr [2008] NSWSC 883
House v The King (1936) 55 CLR 499
iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Murray & Anor v Wheeler & Ors [2013] NSWSC 137
Racing New South Wales v Racing Victoria Ltd (No 2) [2023] NSWSC 576
Tabcorp Holdings Ltd v Entain Group Pty Ltd [2023] NSWSC 220

Texts Cited:
Nil

Category: Principal judgment
Parties: Matthew Press (First Applicant)
Forexco Australia Pty Ltd (Second Applicant)
iSAM Securities (UK) Limited (First Respondent)
iSAM Securities (HK) Limited (Second Respondent)
iSAM Securities (Global) Limited (Third Respondent)
iSAM Securities (USA) Inc (Fourth Respondent)
Representation:
Counsel:
O R Jones / C J Beshara (Applicants)
C Bova SC / Z Graus (Respondents)
Solicitors:
O’Loughlin Westhoff (Applicants)
Corrs Chambers Westgrath (Respondents)

File Number(s): 2024/00327981
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2024] NSWSC 1036

Date of Decision:

19 August 2024

Before:

Richmond J

File Number(s):

2024/00263578

JUDGMENT:

THE COURT: The applicants seek leave to appeal from orders made by Richmond J on 19 August 2024 (see iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036 (PJ)).
In brief, the proceedings relate to concerns by the iSAM group of companies (iSAM) that Mr Press and companies associated with him may have engaged in misleading or deceptive conduct in providing pricing and liquidity services in a way which falsely suggested that they were associated with iSAM.
iSAM claimed that it had insufficient information to commence substantive proceedings against Mr Press or others, including for any accessorial liability. Accordingly, proceedings were brought seeking orders for preliminary discovery and the like, relying on rr 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the Court’s inherent jurisdiction.
The primary judge ordered Mr Press to provide an affidavit identifying persons who supplied liquidity and/or brokerage services during a specified period using a particular business name as well as identifying persons who supplied or used a particular product using a pricing prefix associated with iSAM.…

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: [2024] NSWCA 260
Decision Date: 31 October 2024

CaseChat Overview and Summary

Press and iSam Securities (UK) Ltd were the parties involved in an application for leave to appeal to the Supreme Court of New South Wales. The dispute concerned interlocutory orders made by a lower court, specifically orders for preliminary discovery. The applicants sought leave to appeal these discovery orders.

The primary legal issue before the Court of Appeal was whether the applicants had demonstrated sufficient grounds to warrant leave to appeal the interlocutory discovery orders. This required the court to consider whether the applicants had identified a principle of general application, a question of public importance, or established that a substantial injustice would occur if leave were not granted.

Ward P and Griffiths AJA dismissed the application for leave to appeal. Their Honours found that the applicants had failed to satisfy the necessary criteria for granting leave to appeal interlocutory orders, which typically requires demonstrating a matter of broader significance or a significant risk of injustice. Consequently, the application was dismissed, and the applicants were ordered to pay the respondents' costs.

Orders

Orders of the court

1. The application for leave to appeal filed on 4 September 2024 is dismissed.

2. The applicants are to pay the respondents’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Press v iSam Securities (UK) Ltd [2024] NSWCA 260
Hearing dates:	29 October 2024
Date of orders:	31 October 2024
Decision date:	31 October 2024
Before:	Ward P; Griffiths AJA
Decision:	1. The application for leave to appeal filed on 4 September 2024 is dismissed. 2. The applicants are to pay the respondents’ costs.
Catchwords:	APPEALS — leave to appeal — interlocutory orders — orders for preliminary discovery — whether applicants have identified principle of general application or a question public importance or any substantial injustice — where leave to appeal denied
Legislation Cited:	Australian Consumer Law, s 18 Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), rr 5.2, 5.3, 36.16
Cases Cited:	Counter Building and Construction Pty Ltd v Kerr [2008] NSWSC 883 House v The King (1936) 55 CLR 499 iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036 Mohareb v Local Court of New South Wales [2024] NSWCA 235 Murray & Anor v Wheeler & Ors [2013] NSWSC 137 Racing New South Wales v Racing Victoria Ltd (No 2) [2023] NSWSC 576 Tabcorp Holdings Ltd v Entain Group Pty Ltd [2023] NSWSC 220
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Matthew Press (First Applicant) Forexco Australia Pty Ltd (Second Applicant) iSAM Securities (UK) Limited (First Respondent) iSAM Securities (HK) Limited (Second Respondent) iSAM Securities (Global) Limited (Third Respondent) iSAM Securities (USA) Inc (Fourth Respondent)
Representation:	Counsel: O R Jones / C J Beshara (Applicants) C Bova SC / Z Graus (Respondents) Solicitors: O’Loughlin Westhoff (Applicants) Corrs Chambers Westgrath (Respondents)
File Number(s):	2024/00327981
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2024] NSWSC 1036 Date of Decision: 19 August 2024 Before: Richmond J File Number(s): 2024/00263578