//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 648
Supreme Court of NSW
2026-06-05
Hammerschlag CJ in Eq
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Limited (No 2) [2026] NSWSC 648
Hearing dates: 5 June 2026
Date of orders: 5 June 2026
Decision date: 05 June 2026
Jurisdiction: Equity - Commercial List
Before: Hammerschlag CJ in Eq
Decision: The Injunctions ordered by the Court on 21 May 2025, and extended from time to time, are dissolved. This Order is stayed (except to the extent that the Injunctions inhibit implementation of the valuation process contemplated in cls 11 and 12 read with the definition of “Fair Market Value” in cl 1.1 of the Shareholders’ Deed – to the intent that such process may continue) up to and including 22 June 2026 or the date upon which undertakings are provided to the Dexus Bloc in terms to the reasonable satisfaction of the Plaintiffs’ solicitors, whichever occurs first.
Catchwords: CIVIL PROCEDURE — application for continuation of Injunctions in place pending possible appeal — no issue of principle
Cases Cited: Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Limited [2026] NSWSC 600
Category: Procedural rulings
Parties: Dexus Capital Investment Services Pty Ltd as trustee for Dexus Diversified Infrastructure Trust A, Australia Pacific Airports Fund, Australia Pacific Airports Fund No. 4, Australia Pacific Airports Fund No. 2 and Dexus Wholesale Airport Fund (First Plaintiff/Cross- Defendant)
Dexus Capital Investors Limited as trustee for Australia Pacific Airports Fund 3, and Infrastructure Trust No. 1 (Second Plaintiff/Cross-Defendant)
InfraBridge (GIF Cayman Holdco) 4, L.P. (Third Plaintiff/Cross-Defendant)
Australia Pacific Airports Corporation Limited (First Defendant/Cross-Claimant)
J.P. Morgan Nominees Australia Ltd acting as nominee for JPMorgan Chase Bank, N.A. (Sydney Branch) in its capacity as custodian for SAS Trustee Corporation (Second Defendant/Cross-Claimant)
Utilities of Australia Pty Ltd as trustee for Utilities Trust of Australia (Third Defendant/Cross-Claimant)
IFM Investors (Nominees) Limited as trustee for DAF Private Capital Sub-Trust APAC (Fourth Defendant/Cross-Claimant)
The Northern Trust Company as custodian for the Future Fund Board of Guardians (Fifth Defendant/Cross-Claimant)
REST Nominees No.2 Pty Ltd as trustee of Rest Infrastructure Trust (Sixth Defendant/Cross-Claimant)
SAS Trustee Corporation (Eighth Defendant/Cross-Claimant)
Future Fund Board of Guardians (Ninth Defendant/Cross-Claimant)
Representation: Counsel:
CS Rogers, DTW Wong, H Zhu (Plaintiffs/Cross-Defendants)
R Dick SC, B Lambourne (First Defendant/Cross-Claimant)
E Holmes SC (Second and Eighth Defendants/Cross-Claimants)
J Burnett (Third Defendant/Cross-Claimant)
A Myers KC (Fourth Defendant/Cross-Claimant)
D Heaton (Fifth and Ninth Defendants/Cross-Claimants)
C Colquhoun SC, M Taylor (Sixth Defendant/Cross-Claimant)
Solicitors:
Arnold Bloch Leibler (Plaintiffs/Cross-Defendants)
Norton Rose Fulbright (First Defendant/Cross-Claimant)
Corrs Chambers Westgarth (Second and Eighth Defendants/Cross-Claimants)
Ashurst (Third Defendant/Cross-Claimant)
Gilbert + Tobin (Fourth Defendant/Cross-Claimant)
Baker McKenzie (Fifth and Ninth Defendants/Cross-Claimants)
Jones Day (Sixth Defendant/Cross-Claimant)
File Number(s): 2025/00192969
Publication restriction: Nil
On 29 May 2026, I delivered judgment in the principal proceedings: Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Limited [2026] NSWSC 600. Definitions used in it are used here.
In paragraph [28], I recorded that, on 21 May 2025, Stevenson J had injuncted APAC from acting on the Default Notice.
On 29 May 2026, by consent, I extended the operation of the Injunctions until today, being the date to which the proceedings were stood over for directions to facilitate determination of the remaining issues in the case, which concern the claim by APAC and the Non-Dexus Bloc Shareholders to enforce the Indemnity.
There was something of a mild contest today about the extension of the Injunctions, in particular, from APAC’s point of view, about the effect of the Injunctions on its ability to further the valuation process, which will take some months.
Subject to appropriate protections to the Dexus Bloc against any irreversible consequences of permitting the sale process under the Shareholders’ Deed to go forward, my view, applying conventional principles, is that the successful parties should have the fruits of their victory.
Adequate protection will be provided if APAC and the Non-Dexus Bloc Shareholders undertake to the Court that if any Sale Shares pass hands under the process prior to the determination of any appeal, they will, until the appeal is determined hold them and not deal with them, and if the appeal succeeds with the consequence that the Dexus Bloc are entitled to get them back, give them back. I gathered that such an undertaking will be forthcoming.
REST has a slightly different concern that there will be capital gains tax consequences if its shares are sold. It was not suggested that these consequences (which might be substantial) are irreversible if the appeal succeeds. Counsel for REST was not in a position to inform the Court whether these consequences will arise because of proposed legislative changes presently before Parliament but not yet passed. The problem may be worse if for some reason the Non-Dexus Bloc Shareholders do not buy and the shares go to a third party. This eventuality (which seems most unlikely) would be catered for by any outside purchaser giving an undertaking, mutatis mutandis, in the terms which APAC and the Non-Dexus Bloc Shareholders will give and the vendors undertaking not to sell without obtaining such an undertaking from the purchasers.
To enable the undertakings by APAC and the Non-Dexus Bloc Shareholders to be given, and to enable the Plaintiffs to approach the Court of Appeal (should they be so advised) in relation to my order that the Injunctions be dissolved against the undertakings earlier articulated, I stayed the operation of the discharge of the Injunctions up to and including 22 June 2026.
To cater for any turbulence that might be encountered, the parties have liberty to apply on two days’ notice to be given during business hours.
I make the following orders:
The Injunctions ordered by the Court on 21 May 2025, and extended from time to time, are dissolved. This Order is stayed (except to the extent that the Injunctions inhibit implementation of the valuation process contemplated in cls 11 and 12 read with the definition of “Fair Market Value” in cl 1.1 of the Shareholders’ Deed – to the intent that such process may continue) up to and including 22 June 2026 or the date upon which undertakings are provided to the Dexus Bloc in terms to the reasonable satisfaction of the Plaintiffs’ solicitors, whichever occurs first.
Stand the matter over to Wednesday, 9 September 2026 before the Chief Judge in Equity, Justice Hammerschlag, for hearing of the remaining issues in the case concerning costs/the Indemnity.
Any evidence upon which any person claiming on the Indemnity intends to rely is to be served by 24 July 2026.
Any evidence in response is to be served by 21 August 2026.
Any evidence in reply is to be served by 2 September 2026.
The parties are to deliver a Court Book to the Chief Judge in Equity, Justice Hammerschlag, together with brief written outlines by 7 September 2026.
Liberty to apply on two days’ notice to be given during business hours.
**********
Catchwords - typographical errors corrected.
Dexus Capital Investment Services Pty Ltd
Australia Pacific Airports Corporation Limited (No 2)
[2026] NSWSC 600