Hancock v Rinehart

Judgment - EX TEMPORE

1. [1]

   HIS HONOUR: A central issue in this part of the litigation is whether the first defendant had the ulterior purpose attributed to her by the plaintiffs in consenting to the 2006 amendments to the constitution of HPPL.

2. [2]

   The first defendant's Senior Counsel submitted on Friday afternoon, that this purpose, which he characterised as a "cunning plan", could not have been entertained by the first defendant because, inter alia, it depended on the proposition that she would exercise her voting power as a director of the fourth defendant to impose terms on the buy-back by the fourth defendant of the trust shares so as to defer the payment of the consideration, whereas, so counsel submitted, she could or would not do so because of Article 97 of the constitution. The plaintiffs now seek leave to reopen their case, to tender a number of documents which are said to evidence an intention on the part of the first defendant to do that very thing, namely to exercise her voting power in a way which would result in the consideration for the trust shares not being paid promptly.

3. [3]

   Objection is taken on a number of grounds, including relevance. As to relevance it is said that the submission made by counsel for the first defendant was one based on what the first defendant could legally do. That may be so, but the ultimate issue, as I have said, is what was the first defendant's purpose at the time of the 2006 amendments and what she sought to do in 2011. Whether or not it was authorised by Articles 97 and 98 from a legal perspective can as a matter of fact, quite apart from its legality, cast light on her purpose and intent. Accordingly, I do not accept the relevance objection.

4. [4]

   So far as timeliness is concerned, it is true that this material comes late. On the other hand, it responds to an issue that was raised for the first time in the course of argument on Friday. It uses documents which were already contained in the court book, and I am unsatisfied that significant prejudice arises from its admission at this stage. If the defendants seek an opportunity to make further submissions about the materials so admitted, they will be allowed that opportunity.

5. [5]

   Accordingly, I will admit tabs 2, 3, 4, 5, 6, 8, 9 and 10 of the documents entitled "Plaintiffs Tender Bundle Evidence in Reply" as PX111 and they will be respectively 111.2 to 111.10. The other tabs can be removed from that folder and returned.