Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors - [2004] NSWSC 761 - NSWSC 2004 case summary — Zoe

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Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors

[2004] NSWSC 761

Supreme Court of NSW|2004-08-18|Before: Einstein J, Adam P, Sundberg JJ, McLelland J

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Source facts

Court

Supreme Court of NSW

Decision date

2004-08-18

Before

Einstein J, Adam P, Sundberg JJ, McLelland J

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

CITATION : Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors [2004] NSWSC 761 HEARING DATE(S) : 18 August 2004 JUDGMENT DATE : 18 August 2004

[2]

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Notice of Motion dismissed.

[3]

CATCHWORDS : Practice and procedure - Part 31 separate question determination - Judgment delivered - Application for reasons for judgment to be reviewed and varied - Principles LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Trade Practices Act 1974 (Cth) Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 Amalgamated Television Services Pty Limited v Marsden [1999] NSWCA 313 Arthur Anderson & Co (a firm) v GPA Group PLC & Ors [Spender, Drummond and Sundberg JJ, Federal Court of Australia Queensland District Registry, November 1998, unreported], BC9806237 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Brimaud v Honeysett Instant Print Pty Limited, [McLelland J, Supreme Court of New South Wales, 19 September 1988, unreported] BC8801491 De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290 CASES CITED : R v Nitin Giri (No 2) [2001] NSWCCA 234 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Sydney Airport Corp Limited v Baulderstone Hornibrook Engineering Pty Limited [2003] NSWSC 486 Twenty-First Australia Inc v Shade (1998) NSWSC 325, BC9803667 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Wentworth [1999] NSWSC 638 Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 Gate Gourmet Australia Pty Limited (in liquidation) ACN 089 347 562 (Plaintiff) Gate Gourmet Holding AG, Company Number CH-020.3.003.945-1 (First Plaintiff) Gate Gourmet (Holdings) Pty Limited ACN 004 122 872 (Second Defendant) PARTIES : Odd Gunnar Engebretsen (Third Defendant) Lars Fredrik Larsen (Fourth Defendant) Henning Boysen (Fifth Defendant) Lucas Grolimund (Sixth Defendant) Gate Gourmet Switzerland GMBH (Seventh Defendant) FILE NUMBER(S) : SC 50180/01 COUNSEL : Mr B Coles QC, Ms E Collins (Plaintiff) Mr M Pembroke QC, Mr N Perram (Second, Fifth, Sixth and Seventh Defendants) SOLICITORS : Clayton Utz (Plaintiff) Mallesons Stephen Jaques (Second, Fifth, Sixth and Seventh Defendants)

[6]

50180/01 Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holdings AG & Ors JUDGMENT The background 1 Following the delivery of the reserved judgment handed down on 31 March 2004 dealing with all issues other than quantification of the plaintiff's damages, attempts have been made by the parties to prepare for the final hearing of the remaining issues. Those attempts have met with a number of difficulties, the most recent occurrence being the vacation of the hearing date set to commence on 16 August 2004, two days ago. 2 Notwithstanding the vacation of that hearing date, the matter has been listed for the purpose of the Court endeavouring to understand and deal with some of the threshold concerns of the parties so as to be in a position to better case manage the further directions which require to be given to achieve a circumstance in which all parties will, after so much time, be ready to finally litigate all outstanding issues as soon as practicable. 3 It is obviously unnecessary to repeat that which may be found the judgment which is to be read as a whole. The definitions used in the judgment and the terminology used in the judgment are adopted for present purposes. It will, however, be necessary to refer to some very limited portions of the reserve judgment in what follows. The defendants' approach/application 4 The most significant issue has been put in a number of ways by the defendants. It is primarily put by dint of a notice of motion filed on 18 August 2004 as an application for the reasons for judgment to be reviewed and varied as to the section titled "Inducement" consisting of paragraphs 307 to 313. The Court's power to review and vary reasons for judgment 5 The Court has an inherent power to reopen a hearing, inter alia, for the purpose of reviewing and varying reasons for judgment before any judgment or order has been entered [Wentworth v Wentworth [1999] NSWSC 638 paragraph 6, per Santow J]. 6 There is no serious issue as to the principles to be applied in relation to such applications. 7 The matter was put as follows by Barrett J in Wentworth v Rogers [2002] NSWSC 921:

[7]

"7. On the application for re-opening of the hearing, senior counsel for the second plaintiff referred to a number of the High Court decisions on re-opening after judgment but before entry of orders. The first plaintiff, who again appeared in person, made reference to a great number of authorities. While cases on this subject as it affects appellate courts are no doubt instructive, the fact remains that treatment of the issue at that level is affected by considerations which do not apply when it is sought to have proceedings determined by a single judge at first instance re-opened after judgment. In R v Nitin Giri (No 2) [2001] NSWCCA 234, Heydon JA distilled from High Court authority ( Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300) the three issues central to the re-opening jurisdiction which the High Court regarded as exercisable by appellate courts in only "extremely rare" or "quite exceptional" circumstances and then only with "great caution": • first, whether the appellant has shown that, without accident or fault on the appellant's part, he or she has not been heard on a relevant matter; • second, whether the appellant has shown an error in the court's reasoning because of a misapprehension of the facts; and • third, whether the appellant has shown an error in the court's reasoning because of some misapprehension of the relevant law. [See also, in particular, Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 and De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207.)" 8 Justice Barrett then proceeded to cite portions of a judgment delivered by Justice Santow (Wentworth v Wentworth [1999] NSWSC 638) in the course of which excerpts Justice Santow had given the following examples of where review had been allowed in the case of a judgment or order of a court of first instance. "(i) Where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18.

[17]

"In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate in the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material changes of circumstances since the original application was heard or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application." [at page 5] 14 His Honour's judgment in Brimaud was cited with approval by the New South Wales Court of Appeal in Amalgamated Television Services Pty Limited v Marsden [1999] NSWCA 313 at paragraph 38; and by a Full Court of the Federal Court of Australia in Arthur Anderson & Co (a firm) v GPA Group PLC & Ors, unreported, Spender, Drummond and Sundberg JJ, Federal Court of Australia, November 1998, at page 2; see also Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 178 per Gibbs CJ. Aickin, Wilson and Brennan JJ; and Sydney Airport Corp Limited v Baulderstone Hornibrook Engineering Pty Limited [2003] NSWSC 486 at paragraphs [30]-[31] per Einstein J. 15 Clearly, the approach taken by his Honour in Brimaud was apt in the circumstances in relation to an interlocutory hearing of a common type in the Equity Division where the attempt is to procure a status quo or set of orders which will regulate the parties' conduct until final disposition of the proceedings. The present case is not in precisely that position at all. Indeed, the circumstances in terms of the present position of these proceedings, where the first tranche following the Part 31 order has been heard, seems to be a via media somewhere in between. It is clear that no orders have yet been made following the first tranche judgment. It is also clear that a reserved judgment, dealing with many matters of fact and principle, credit and other issues, has been handed down. 16 To my mind the proper approach to the defendants' application presently is by reference to the very principles outlined by Barrett J in the judgment to which I have referred. The basal proposition is that a single judge whose decision is susceptible to appeal through readily available channels, with or without preliminary need for leave to appeal, should allow reopening after judgment where it is obvious to that judge that the decision has been miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. 17 At a more general level the authorities establish that in considering an application for leave to reopen where it is sometimes put that new or additional evidence is available, the guiding principle would be whether the interests of justice are better served by allowing or rejecting the application. As the transcript will record, the current position presently before the court is that there is no live application by the defendants for leave to reopen in order to be in a position to adduce new or additional evidence. 18 The introduction of the Supreme Court Rules, Part 1 rule 3, requiring the court to give effect to the overriding purpose of the rules, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, must also very importantly be kept in mind in the entertaining of applications such as the instant application. The defendants' contentions 19 The defendants have put forward detailed written submissions covering 13 pages in support of the application. It is not necessary to recite all of those submissions. It seems to me appropriate to mark the submissions for identification D1 and I proceed accordingly. 20 Whilst there are a number of matters sought to be raised by the defendants, to my mind none of those matters are of substance. Each of them may, of course, be appropriate to be pressed on any appeal from a first tranche judgment, the Court of Appeal being the relevant forum in that regard. Placing the application into context 21 It is convenient before turning to the formal position in relation to the proceedings to examine the context in which the reserve judgment was delivered with some care. I proceed accordingly. 22 The first tranche of the trial in March 2004 was the appropriate time, as it seems to me, for all issues bar the quantification of the plaintiff's damages to be litigated. 23 The March judgment determined all issues except for quantification and the plaintiff's estoppel claim [which the Court held did not need to be determined in the light of the other findings]. That this is the case is evidenced, as the plaintiffs point out, by the orders of the Court made consensually on 29 November 2002:

[35]

[160] Nor does anything in the other conduct of Mr McIntyre following the signing of the Letter remove the basis for the above finding. His own understanding as to the form of any further support from the Swiss parent, in terms of formal facilities being negotiated and the like and then documented in a legally binding form, does not erode or displace or replace his sworn reliance [earlier referred to in this judgment] upon the Letter having been in place as foundational to his preparedness to sign the directors' declaration and to permit the Australian trading company to continue to trade and to incur debts. 34 Neither these paragraphs nor paragraphs 307 to 309 expressly state a finding as to the date on which the Australian trading company would have had a voluntary administrator appointed. 35 Mr Pembroke's submission is in short that notwithstanding the matters carefully dealt with in the judgment, the presence or absence of the letter cannot be said on the Court's findings to be determinative of the date upon which the company would have been placed into administration. 36 The submission is rejected. It flies in the face of the findings, which can only be read as clearly holding that had the Letter not been provided at all the Australian trading company would have been placed into liquidation. The words "absent the letter the company would have ceased trading" [paragraph 307] could not be clearer. 37 The so-called timing issue is not of real moment. The Letter was signed on 16 February 2001. The judgment is to be read as including an implicit finding that had that letter not been signed on or about that date the company would, on or about that date [that is to say on or about or within a few days of that date] had been placed into administration. For further case management purposes and as so much emphasis has been placed upon the suggested need for precision with respect to identification of the precise date, the parties should proceed by regarding 16 February 2001 - [that is to say on or about or within a few days of 16 February 2001] as the relevant date. 38 This is not an occasion for the Court at first instance to examine suggestions of issues which it is contended that the plaintiff did not address in its presentation of the first tranche case; nor is it an occasion for the Court at first instance to examine parameters of what the defendants now contend to have been their forensic entitlement to call or not call first tranche evidence in terms of their submission that the plaintiff's evidence at the hearing was insufficient to permit the Court to have reached its findings set out in the reserved judgment. Those are matters for the Court of Appeal on an appeal from the final judgment disposing of the proceedings at first instance. It would be wrong and destructive of the Court's procedures for refinement and clarification of issues prior to trial if the parties were now able to re-argue issues already litigated during the first tranche outside of being in a position to establish the proposition summarised by Barrett J in the judgment to which I have referred. 39 It is unnecessary to further treat with any of the defendants' detailed submissions. To treat in detail with those matters may well cause the Court to become involved in a questioning of matters fundamental in terms of going to the heart of the matters dealt with in the first tranche hearing and in the first tranche judgment. The procedural position 40 In terms of the strict procedural position, I do not regard what I have said in paragraph 37 as procedurally requiring a reopening of the judgment in order to vary the judgment; nor is there occasion to set the judgment aside; nor is there occasion to reopen the first tranche hearing. I reject the application to review and vary the reasons for judgment. No good reason has been put forward showing that the Court proceeded on a misapprehension as to the facts or the law. No reason of substance substantiates any suggested miscarriage of the decision the subject of the reserved judgment. Whilst the categories of the situation where courts will grant leave to reopen a judgment are not closed, the attack of the defendants does not qualify for an exercise of the Court's discretion to permit any such reopening. 41 If I be wrong in terms of the strict procedural position and had it been necessary to formally grant leave to the parties to reopen any part of the first tranche hearing, I would have only granted leave permitting the parties to address on the question now dealt with in paragraph 37 and would not have permitted the parties to adduce any further evidence than that which had been adduced during the first tranche hearing. Essentially, the very same submissions as would then have required to be examined have now been placed before the Court and have been fully examined. I have approached the matter in precisely the same way as is set out in paragraph 37, so that the differing procedural position would have made no difference to the result. 42 For those reasons the notice of motion filed today is dismissed. I certify that paragraphs 1 - 42 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 18 August 2004ex tempore and revised 24 August 2004

Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors

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