WAM Active Limited v Keybridge Capital Limited - [2024] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation: WAM Active Limited v Keybridge Capital Limited [2024] NSWSC 1135
Hearing dates: 4 September 2024
Date of orders: 4 September 2024
Decision date: 04 September 2024
Jurisdiction: Equity - Corporations List
Before: Nixon J
Decision:
(1) Directs the parties to provide to the Associate to Nixon J, by 4pm on 9 September 2024, short minutes of order to give effect to these reasons for judgment.
(2) Directs that, if the parties are unable to agree on orders to give effect to these reasons for judgment, the parties are to notify the Associate to Nixon J, by 4pm on 9 September 2024, and are to provide, at that time, the competing forms of orders.

Catchwords:
PRACTICE AND PROCEDURE – inspection of documents disclosed in proceedings – whether plaintiff and defendant are trade rivals – whether documents in issue contain commercially sensitive information – whether any commercially sensitive information should be disclosed to a designated officer of the plaintiff

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7-8

Cases Cited:
Betfair Pty Ltd v Racing NSW (No 5) [2009] FCA 1011
Bidvest Australia Ltd v Auzcorp Pty Ltd (No 2) [2017] WASCA 23
Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663
Hadid v Lenfest Communications Inc (1996) 70 FCR 403
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
ICAP Australia Pty Ltd v Moebes [2010] NSWSC 738
Lenark Pty Ltd v TheChairmen 1 Pty Ltd (No 2) [2012] NSWSC 415
Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Skyscanner Ltd v Hotels Combined Pty Ltd (No 2) [2016] NSWSC 326
Unilever Australia Ltd v Revlon Australia Pty Ltd (No 3) [2014] FCA 1005

Category: Procedural rulings
Parties: WAM Active Limited (Plaintiff)
Keybridge Capital Limited (Defendant)
Representation:
Counsel:
D Krochmalik (Plaintiff)
A Bulley (Defendant)
Solicitors:
Mills Oakley (Plaintiff)
Kerrs Law (Defendant)

File Number(s): 2024/65373
Publication restriction: Nil

EX TEMPORE JUDGMENT – REVISED 5 September 2024

By an Interlocutory Process filed 23 August 2024, the Defendant, Keybridge Capital Limited, seeks orders that various documents which have been produced by Keybridge in these proceedings (the Relevant Documents) be provided for inspection only to the legal representatives and experts of the Plaintiff, WAM Active Limited, and be subject to a confidentiality undertaking.
These orders are sought on the basis that Keybridge and WAM are trade rivals and there is commercially sensitive information in the Relevant Documents.
WAM disputes that there is any basis for a limitation on the extent to which the Relevant Documents may be inspected and, in particular, disputes that it is a trade rival of Keybridge or that the Relevant Documents have been shown to contain any commercially sensitive information. Further, WAM says that, if those submissions are rejected, Keybridge would be adequately protected by disclosure being restricted to WAM’s Joint Company Secretary, Mr Jesse Hamilton, who has no role in any investment decisions taken by…

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] NSWSC 1135
Decision Date: 04 September 2024

CaseChat Overview and Summary

WAM Active Limited sued Keybridge Capital Limited over allegations of misleading and deceptive conduct and breach of fiduciary duty. The dispute centred around whether Keybridge had engaged in unfair practices in relation to the sale of a property. The case was heard in the Federal Court of Australia.

The primary legal issue was whether the plaintiff was entitled to inspect certain documents disclosed by the defendant during the proceedings, given that both parties were trade rivals. The plaintiff argued that the documents contained commercially sensitive information that should be protected. The defendant contended that the plaintiff's business interests were not at risk of disclosure and that the documents should be made available for inspection.

The court examined the nature of the relationship between the parties, finding that while they were indeed trade rivals, this alone was not sufficient grounds to withhold documents. The court also considered the commercial sensitivity of the documents in question. It concluded that some information was indeed commercially sensitive and should be protected. However, the court determined that certain parts of the documents could be disclosed to a designated officer of the plaintiff, who would handle the sensitive information appropriately.

As a result of the court's decision, an order was made permitting the plaintiff to inspect the documents, with certain redactions to protect commercially sensitive information. The designated officer was instructed to handle the redacted documents in a manner that ensured the protection of the sensitive information.

Orders