Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited (No 4)
[2011] FCA 514
•13 May 2011
FEDERAL COURT OF AUSTRALIA
Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited (No 4) [2011] FCA 514
Citation: Stratford Sun Limited v OM Holdings Limited; In the Matter of OM Holdings Limited (No 4) [2011] FCA 514 Parties: STRATFORD SUN LIMITED v OM HOLDINGS LIMITED (ARBN 081 028 337); IN THE MATTER OF OM HOLDINGS LIMITED (ARBN 081 028 337) File number: NSD 483 of 2011 Judge: FOSTER J Date of judgment: 13 May 2011 Legislation: Federal Court of Australia Act 1976, s 37M Date of hearing: 13 May 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Plaintiff: Mr JB Simpkins SC, Mr TM Thawley Solicitor for the Plaintiff: Mallesons Stephen Jaques Counsel for the Defendant: Mr F Gleeson SC, Mr J Williams Solicitor for the Defendant: Gilbert + Tobin
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 483 of 2011
IN THE MATTER OF OM HOLDINGS LIMITED (ARBN 081 028 337)
BETWEEN: STRATFORD SUN LIMITED
PlaintiffAND: OM HOLDINGS LIMITED (ARBN 081 028 337)
Defendant
JUDGE:
FOSTER J
DATE OF ORDER:
13 MAY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The plaintiff’s renewed application for leave to amend the Statement of Claim be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 483 of 2011
IN THE MATTER OF OM HOLDINGS LIMITED (ARBN 081 028 337)
BETWEEN: STRATFORD SUN LIMITED
PlaintiffAND: OM HOLDINGS LIMITED (ARBN 081 028 337)
Defendant
JUDGE:
FOSTER J
DATE:
13 MAY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
After I gave reasons in respect of the plaintiff’s first application to amend its Statement of Claim, Senior Counsel for the plaintiff renewed his client’s application to amend but, on this occasion, did so on terms that an adjournment of the current hearing be ordered in order to enable the defendant to meet the new allegation. I understood Senior Counsel to accept that, if such an adjournment were granted, it would be on penalty as to costs.
In order to meet the new allegation sought to be made by proposed par 27A of the Statement of Claim, the defendant will need to consult with lawyers and perhaps others in Hong Kong. Precisely how long that will take is not a matter that anyone knows at the moment. However, I have the strong impression it would be a matter of days rather than weeks, but almost certainly could not be attended to during business hours today.
Senior Counsel for the plaintiff submitted that there will be substantial injustice occasioned to the plaintiff if the amendment is not allowed and that there will be very little prejudice to the defendant, if any, if there was a very short adjournment in order to enable the defendant to meet the evidentiary case required of it as a result of the proposed amendment, if it is allowed.
Resolution 10 was not passed at the Annual General Meeting on 20 April 2011. Material in front of me on 19 April 2011 suggested that Resolution 10 was integral to the listing on the Hong Kong Stock Exchange. Senior Counsel for the defendant has informed me this morning from the Bar Table that his client’s view is that the passing of Resolution 10 is not integral to that listing and that his client wishes to press on with that listing with all speed.
Senior Counsel for the plaintiff suggested the opposite. I cannot resolve that question at the moment and, as I understand that shape of the hearing before me at the moment, it is not a question which calls for determination as part of the present hearing.
The defendant is a public company and its affairs are being interfered with by the ongoing existence of the present litigation. That interference may be entirely legitimate, the legitimacy of which will depend upon whether the plaintiff is successful or not. However, on the defendant’s view of life, the proposed listing is moving forward broadly in accordance with the timetable previously outlined to me. That timetable has important milestones in May and June 2011.
The parties to this dispute are sophisticated commercial entities which are well resourced and well advised. It is true, as Senior Counsel for the plaintiff submitted, that a disallowance of the amendment which the plaintiff now seeks will prevent the plaintiff, at least for the time being, from agitating a matter which the plaintiff seriously argued is important to it. In this sense, there is a matter of substance on the plaintiff’s side of things calling for careful consideration. However, given the subject matter of the litigation, the history of the litigation to date, the overriding and overarching imperative imposed upon the Court and the parties by s 37M of the Federal Court of Australia Act 1976 (Cth) and the fact that an adjournment of even a few days will almost certainly mean that this case will not be heard for some weeks at the earliest, I think that I should again refuse the amendment application even on the terms that are now being offered by the plaintiff.
In doing so, I have in mind the critical matter which underpinned the judgment which I gave earlier today, which is that the plaintiff could have and should have made clear to the defendant, and to the Court for that matter, that the issue which is the subject of this renewed amendment application was, in fact, going to be an issue in the proceeding and was not simply part of a collection of thoughts being put forward by a witness in circumstances where those thoughts were not, in every case, relevant to the pleaded case. It was open to the defendant, when confronted with Mr Paatsch’s report, in light of the current pleading, to take a forensic decision not to seek to meet the entirety of that report by evidence but rather to approach the matter in the way that it did. The defendant’s approach was to confine the plaintiff to its pleaded case, to take appropriate objections and to argue the case accordingly. The defendant cannot be criticised for adopting this approach. Nor should it be prejudiced for doing so.
For these reasons and doing the best I can balancing the injustice as the plaintiff sees it, on the one hand, by the exclusion of the allegation and the injustice, on the other hand, to the defendant, were I to include the allegation, I have come to the view that the amendment application should again be refused even on terms as to an adjournment with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 17 May 2011
0
0
1