[2021] NSWSC 510
CLSA Australia Pty Ltd v Golden Energy and Resources Limited
Partial disclosure granted
Catchwords
CIVIL PROCEDURE — Disclosure — Classes or categories of documents
Judgment
- [1]
The Plaintiff, CLSA Australia Pty Ltd (“CLSA”) and the Defendant, Golden Energy and Resources Limited (“GEAR”) entered an agreement on 11 December 2018 pursuant to which CLSA agreed to provide corporate advisory services to GEAR in relation to a possible future takeover by GEAR of Stanmore Coal Limited (“Stanmore”).
- [2]
By 18 May 2020, GEAR had obtained a 75.33% shareholding in Stanmore.
- [3]
These proceedings concern CLSA’s entitlement to certain contingent success fees in relation to that matter.
- [4]
There is a dispute between the parties as to whether the original 11 December 2018 agreement was terminated and replaced by a later agreement providing for lower renumeration or whether the original agreement was varied to like effect.
- [5]
I am dealing with competing motions for disclosure of documents.
CLSA’s Motion
- [6]
CLSA seeks documents “referring to” the “termination” and “fee tail” provisions in the 11 December 2018 agreement.
- [7]
These documents are said to be relevant to GEAR’s defence of estoppel by convention.
- [8]
They are likely to involve internal communications of GEAR evidencing whether GEAR was operating under the assumption it alleges, namely, that the 11 December 2018 agreement was terminated on the various dates.
- [9]
CLSA’s motion seeks documents “referring” to the identified provision and is thus narrowly focused.
- [10]
The documents sought appear relevant to the issues. GEAR should give disclosure as sought by CLSA.
GEAR’s Motion
- [11]
This category seeks:
- [12]
The relevant paragraph of Mr Wat’s affidavit is to the effect that “all staff” “always complied” with the Operations Manual referred to.
- [13]
The difficulty with the category as drawn is that it would require production of documents referring to any non-compliance by Mr Dorney with the Operations Manual, whether presently known to CLSA or not.
- [14]
GEAR could only reasonably seek documents referring to any non-compliance of the Operations Manual which has come to light. Otherwise CLSA would have to conduct a fresh investigation into whether some hitherto unknown non-compliance had occurred.
- [15]
In those circumstances I accept CLSA’s submission that it should give discovery in accordance with what it described as its “Reformulated Category” as follows:
- [16]
This category is agreed.
- [17]
This category seeks production of:
- [18]
Although the meeting of 28 June 2019 is not referred to in the pleadings, it is referred to in affidavit evidence.
- [19]
Mr Knowles for GEAR submitted that the “events of that meeting” are relevant to the issues of the proceedings in a number of respects including that CLSA’s subjective understanding of the contractual relationship between the parties at that date, this being relevant to GEAR’s conventional estoppel claim.
- [20]
However, the category should be narrowed obliging disclosure only of documents recording or referring to what occurred at the meeting.
- [21]
GEAR seeks the following three categories of documents:
- [22]
These categories are relevant to the issues of the invoice which is the subject of these proceedings, a telephone call regarding the same, and a subsequent email confirming CLSA’s position that the invoice was due and payable.
- [23]
Mr Knowles submitted that these documents are likely to disclose whether, in making the demands for payment, CLSA departed from the assumption the subject of GEAR’s estoppel by convention allegation.
- [24]
The documents sought are capable of being relevant to this issue and should be disclosed.