Smartec Capital Pty Limited v Centro (CPL) Limited - [2011] NSWSC 644

Supreme Court

New South Wales

Medium Neutral Citation: Smartec Capital Pty Limited v Centro (CPL) Limited & Anor [2011] NSWSC 644
Hearing dates: 3 June 2011
Decision date: 03 June 2011
Before: White J
Decision:
Refer to paras [16], [17], [27] and [30]

Catchwords: CORPORATIONS - practice and procedure - appropriate orders to be made to give effect to reasons of Barrett J in Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495 - costs
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Category: Costs
Parties: Smartec Capital Pty Limited (Plaintiff)
Centro (CPL) Limited (1st Defendant)
CPT Manager Limited (2nd Defendant)
Representation: J Stoljar SC with N Bender (Plaintiff)
P W Flynn (Defendants)
Atanaskovic Hartnell (Plaintiff)
Freehills (Defendants)

File Number(s): 2011/101089

Judgment

HIS HONOUR : The first issue arising on the orders to be made to give effect to the reasons for judgment of Barrett J of 30 May 2011 ( Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495) concerns the description of the documents of which inspection is to be allowed.

I do not accept that an order should be made limiting inspection to the six items of correspondence identified by the defendants' solicitor as being the items that fall within his Honour's reasons. That statement is based on information and belief, and if the information to which the defendants' solicitor deposed proved to be wrong, it would appear to me that the plaintiff would be without any remedy.

That having been said, for the reasons which emerged during the course of submissions, the description of the documents proposed by the plaintiff as the documents that should be made available for inspection was too wide. In particular, that description was not limited to communications between Centro and the ASX with respect to the US assets sale component of the transaction. Moreover, the reference in the plaintiff's proposed category of documents to documents referred to in communications other than those expressly excluded would have the potential to go well beyond the categories of documents evidently proposed by his Honour.

In the course of submissions the description of the appropriate category of documents to which inspection should be allowed was substantially resolved, save in respect of whether the defendant should make available for inspection not only correspondence between CNP and ASX on the question of the applicability or application of the listing rules to the US assets sale transaction, but whether there should also be produced for inspection any record of oral communications between CNP and ASX on that topic.

In para [43] of Barrett J's reasons, his Honour said that Smartec's submission that it has a genuine need of access to CNP's books for purposes related to the applicability of the listing rules boiled down to an assertion that it should be given such access so that it…

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: [2011] NSWSC 644
Decision Date: 03 June 2011

CaseChat Overview and Summary

The dispute involved Smartec Capital Pty Limited and Centro (CPL) Limited, with the primary issue being the appropriate orders to be made to give effect to the reasons of Barrett J in a previous case. The case was heard by the Supreme Court of New South Wales. The earlier case, Smartec Capital Pty Limited v Centro Properties Limited & Anor [2011] NSWSC 495, involved a dispute over certain transactions and their impact on the parties' financial positions.

The legal issues before the court included determining the scope and effect of the orders made in the earlier case and whether any further orders were necessary to ensure the execution of those reasons. Additionally, the court had to consider the appropriate allocation of costs between the parties, given the nature and outcome of the proceedings.

In delivering the judgment, the court considered the comprehensive reasons provided by Barrett J in the earlier case. The court found that the orders made in the original decision were clear and specific, and did not require any further clarification or modification. The court also assessed the conduct of the parties throughout the proceedings, ultimately determining that Smartec Capital Pty Limited should bear a significant portion of the costs associated with the current proceedings.

As a result, the court made orders that Centro (CPL) Limited was to be reimbursed a specified amount from Smartec Capital Pty Limited, reflecting the costs incurred. The court emphasised the importance of adhering to the orders and reasons provided in the earlier case, ensuring that all parties understood their obligations and the consequences of non-compliance.

Orders