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[2017] NSWCA 322
Court of Appeal (NSW)
2017-12-15
Bathurst CJ, Meagher JA
Original judgment source is linked above.
Solicitors: K&L Gates (Respondents) File Number(s): 2012/156726 Decision under appeal Court or tribunal: Court of Appeal Date of Decision: 22 August 2017 Before: Bathurst CJ; Meagher JA; Emmett AJA File Number(s): 2012/156726
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Judgment
APPENDIX ERROR 1: FUNDING ERROR 32. Erred in finding that the settlement and the dismissal of the 2001 proceedings were not subject to inter alia $4.5m … Reason why Stevenson J made that finding and why he erred: 33. The main reason is that his Honour found that the appellant did not enquire if the promised $4.5m at settlement had arrived before consenting on 6.9.2004 to the making of the orders on 6.9.2004 dismissing the 2001 proceedings. 34. The fact that the appellant/s did not enquire meant to his Honour that the settlement and the dismissal of the 2001 proceedings were not subject to funding, namely $4.5m. … What is the evidence of the error: 35. His Honour incorrectly found that the consent by the appellant/s to dismiss the 2001 proceedings was given on 6.9.2004 rather than at settlement on 27.8.2004 when the Short Minutes of Order (SMO) were handed over to HTT. This is a critical error. 36. That is made out by Gillard (HTT's lawyer) on his own approving in court the SMO on 31.8.2004 and attempting to make the orders on 1.9.2004. The court advised him to make the orders on the next mention date which happened to be on 6.9.2004. … 37. Had Gillard been successful in making the orders on 1.9.2004 there would be no point of asking between say 2.9.2004 and 6.9.2004 if $4.5m had arrived. 38. The above is confirmation that the consent to dismiss the 2001 proceedings was given on 27.8.2004 at the full settlement conference. 39. After 27.8.2004 any formal matters had to be attended to by HTT/JVP - not by the appellant. … 40. Therefore, there was no need and no requirement to ask. In fact, subsequently Mr Einfeld (senior counsel for the respondents) made that admission - … 41. Mr Einfeld also admitted subsequent to settlement that the settlement was subject to $4.5m - ... 42. His Honour also stated at … that the settlement was subject to $4.5m. It appears that his Honour confused the initial amount of $12m to be advanced with $4.5m … 43. All the subsequent to settlement assurances by Renshall also confirm the settlement being subject to inter alia $4.5m. One such assurance/s was made on 25.10.2004 at the Sentel directors meeting … Evidence the respondent's conduct (mainly if not entirely) led his Honour to err: 44. Even though it was agreed that the SMO were handed over to HTT at settlement on 27.8.2004 the respondents persuaded his Honour to amend the transcript to show that the SMO were handed over on 6.9.2004. … 45. The submissions by the respondents in the previous point are false because they don't agree with the correct and undisputed position at par 36 above … Conclusion: 46. Therefore, the settlement and the dismissal of the 2001 proceedings were not only subject to the JVP providing $4.5m to HTT but also subject to the JVP taking control of HTT for which Zdrilic gave up his veto power terms. 47. Logically it would not make sense that the settlement was not subject to the JVP coming in, taking control and providing funding, including $4.5m. Otherwise, Zdrilic's significant veto terms and control of HTT were taken from him for nothing - that just would not make sense. ERROR 2: JVP REQUIREMENTS ERROR 48. Erred in finding … that the highly significant 3rd and 4th representations … were not false … Evidence of the error - which can be proved in at least 2 ways One way: The JVP had no requirements The JVP had no requirements in relation to Zdrilic's veto power terms because inter alia: 49. Gillard said so in his affidavit … 50. Renshall said so in his affidavit … 51. Hickie and Renshall said so by what they said at the 16.8.2006 HTT's tape recorded directors meeting. Effectively it is an admission that it was their requirement and not that of the JVP. … 52. These matters show that the JVP had no requirements and that the 3rd and 4th representations are false and that settlement was induced by fraud. Of further significance is this: If the 3rd and 4th representations were not made there would be no further representations after the 4th representation. 53. It therefore follows that there would be no settlement, no proceedings before Stevenson J, no appeal proceedings, no debts to the Hickie Respondents, no liquidation of LEC and Amy Holdings, no bankruptcy of the Zdrilic's and no current obstacles to the commencement of the appeal hearing. … Another way: JVP did not exist at settlement to be able to have requirements The non-existence of the JVP at settlement is made out by a number of matters but only one matter is sufficient to be noted for this application: 55. False representation at settlement of Mr Frederick and Mr Tugrul being appointed as the supposed JVP nominated directors on the HTT board who supposedly took control of the HTT board is sufficient to prove there was no JVP … and Falsity … 56. The previous false representation is confirmed by Mr Renshall's false assurances after settlement when he stated that the JVP was continuing even after being terminated on 16.9.2004. One example: File notes of the Sentel directors meeting on 25.10.2004. … 57. The consequence of the above is that Zdrilic was fraudulently induced to give up his veto terms and control of HTT for nothing. Note 1: The above are factual matters which cannot be disputed. These matters should assist the court to express a much stronger view about the prospects of success of the appeal than the current view at [70]. However, should there be any doubt the appellant requests an opportunity to orally argue the matters at the appropriate time … (Emphasis in original.)
Endnotes
Land Enviro Corp Pty Ltd (In Liq)
HTT Huntley Heritage Pty Ltd