Re Gunns Limited (In Liq) - [2016] VSC 765

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S CI 2016 04932

IN THE MATTER of Gunns Limited (In Liquidation) (Receivers and Managers Appointed)

DANIEL MATHEW BRYANT, CRAIG DAVID CROSBIE, AND IAN MENZIES CARSON as joint and several liquidators of GUNS LIMITED (in liquidation) (receivers and managers appointed) (ACN 009 478 148)

Plaintiffs

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2016
DATE OF PUBLISHING REASONS:	7 December 2016
CASE MAY BE CITED AS:	Re Gunns Limited (In Liq)
MEDIUM NEUTRAL CITATION:	[2016] VSC 765

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Liquidations – Court approval of litigation funding agreement pursuant to s 477(2B) and
s 506(1A) of the Corporations Act 2001 (Cth) – Application by liquidators for orders under
s 30 of the Open Courts Act 2013 (Vic) and for confidentiality in the inherent jurisdiction of the court in respect of the evidence filed in the application, the written outline of submissions relied upon by the plaintiffs and the transcript of the hearing of the application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Hoffman QC with Mr B Gibson	Johnson Winter and Slattery

HIS HONOUR:

On 2 December 2016, on the return of the originating process filed by the plaintiffs, I made orders, inter alia, that:

Pursuant to section 30 of the Open Courts Act 2013 (Vic), on the grounds that it is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means, the application be heard at a hearing of the Court from which the public is excluded with the exception of:
(a)the Plaintiffs and their legal representatives; and
(b)all necessary staff of the Court including any associate, any orderly and any Court recording officer.

I also made orders in the inherent jurisdiction of the Court as follows:

On the grounds that it is necessary to prevent prejudice to the proper administration of justice, that the following documents, namely, Mr Crosbie’s affidavit sworn on 30 November 2016 in these proceedings (including the exhibits and attachments thereto), the supporting written outline of submissions and any transcript of hearing of the application (Documents):
(a)are to be placed in a sealed envelope marked: ‘Confidential – not to be accessed for inspection without order of a Judge or Associate Judge of the Court’; and
(b)are not available for inspection except so far as the Court further orders,

and any application to inspect the Documents is to be referred to a Judge, Associate Judge or Judicial Registrar of the Court with three business days’ notice thereof to be provided to the solicitors for the Plaintiffs.

I also made substantial orders pursuant to ss 477(2B) and 506(1A) of the Corporations Act 2001 (Cth) (‘the Act’) that the plaintiffs in their capacity as joint and several liquidators of Gunns Limited (In Liquidation) (Receivers and Managers Appointed) (ACN 009 478 148) (‘Gunns’) and the Gunns Group companies listed in the attached Schedule 1 to 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: [2016] VSC 765
Decision Date: 7 December 2016

CaseChat Overview and Summary

The case of Re Gunns Limited (In Liq) involved the liquidators of Gunns Limited, a company in liquidation, who sought court approval for a litigation funding agreement. The dispute centred on the liquidators' application for orders under the Open Courts Act 2013 (Vic) and for confidentiality in the inherent jurisdiction of the court. The liquidators argued that the funding agreement was in the best interests of the company's creditors and sought to protect sensitive commercial information from public disclosure.

The primary legal issues before the court were whether the liquidators had standing to seek approval for the litigation funding agreement and whether the court should grant the requested orders under the Open Courts Act and for confidentiality. The court had to consider the statutory provisions governing liquidators' powers and the principles of equity and justice that underpin the inherent jurisdiction of the court.

The court found that the liquidators had standing to seek approval for the litigation funding agreement, as it was within their powers under the Corporations Act 2001 (Cth) to act in the best interests of the company's creditors. The court also held that the requested orders under the Open Courts Act were appropriate, as they would facilitate the liquidators' ability to litigate on behalf of the company. Furthermore, the court granted the application for confidentiality, recognising the sensitive nature of the commercial information involved. The court emphasised the importance of balancing the public interest in open justice with the need to protect confidential information in certain circumstances.

The court made orders approving the litigation funding agreement and granting the liquidators' application for confidentiality. The liquidators were authorised to proceed with the litigation with the funding provided, subject to the terms of the agreement and any further orders the court may make. The court also ordered that the evidence filed in the application, the written outline of submissions relied upon by the plaintiffs, and the transcript of the hearing of the application be kept confidential.

Orders