AMP Capital Investors Limited v Parsons Brinckerhoff Australia Pty Limited (2009/290489) Retail Employees Superannuation Pty Limited v AMP Capital Investors Limited (2013/252050) [2013] NSWSC 1633

AMP Capital Investors Limited v Parsons Brinckerhoff Australia Pty Limited (2009/290489) Retail Employees Superannuation Pty Limited v AMP Capital Investors Limited (2013/252050) [2013] NSWSC 1633

AMPCI did not have an actual conflict of interest in the AMP proceedings because, with advice and cognisant of its fiduciary responsibilities, it had adopted a position denying that its conduct as investment manager gave rise to a defence or cause of action against it; any potential conflict had not matured into an actual conflict. Separate representation was also inappropriate for discretionary reasons including inadequate evidence, irregularity in Clayton Utz bringing the application, delay, likely procedural difficulties, increased costs and inconsistency with the Civil Procedure Act. The REST proceedings should be stayed because, as a matter of pragmatic case management, determination...

Jurisdiction
Australia
Judgment Date
12 November 2013
Procedural Posture
Procedural and Other Rulings in Related Supreme Court Proceedings Concerning Investments in the Lane Cove Tunnel Project / Interlocutory Applications for a Stay, Concurrent Hearing, Separate Representation, and Directions Concerning Experts' Reports
Outcome
The REST proceedings were stayed pending determination of the AMP proceedings; the concurrent hearing motions and the motion for separate representation of AMPCI were dismissed; directions and mention dates were fixed; each party was ordered to bear its own costs of the hearings.
Legal Topics
['actual Conflict of Interest' 'separate Representation' 'stay of Proceedings' 'case Management' 'concurrent Hearing' "use of Experts' Reports" 'civil Procedure Act Overriding Purpose']
['civil Procedure' 'conflict of Interest' 'expert Evidence' 'trusts and Fiduciary Obligations'] ['actual Conflict of Interest' 'separate Representation' 'stay of Proceedings' 'case Management' 'concurrent Hearing' "use of Experts' Reports" 'civil Procedure Act Overriding Purpose']

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Procedural Posture

Procedural and Other Rulings in Related Supreme Court Proceedings Concerning Investments in the Lane Cove Tunnel Project / Interlocutory Applications for a Stay, Concurrent Hearing, Separate Representation, and Directions Concerning Experts' Reports

Legal Issues

  1. 1 ['Whether AMPCI had an actual conflict of interest in the AMP proceedings justifying representation by two sets of solicitors and counsel.' 'Whether the REST proceedings should be stayed pending determination of the AMP proceedings or heard concurrently with them.' 'How expert evidence should be controlled in the AMP proceedings.']

Ratio Decidendi

AMPCI did not have an actual conflict of interest in the AMP proceedings because, with advice and cognisant of its fiduciary responsibilities, it had adopted a position denying that its conduct as investment manager gave rise to a defence or cause of action against it; any potential conflict had not matured into an actual conflict. Separate representation was also inappropriate for discretionary reasons including inadequate evidence, irregularity in Clayton Utz bringing the application, delay, likely procedural difficulties, increased costs and inconsistency with the Civil Procedure Act. The REST proceedings should be stayed because, as a matter of pragmatic case management, determination...

Court Disposition

The REST proceedings were stayed pending determination of the AMP proceedings; the concurrent hearing motions and the motion for separate representation of AMPCI were dismissed; directions and mention dates were fixed; each party was ordered to bear its own costs of the hearings.

Orders

  • ['Proceedings 2013/252050 be stayed pending the determination of proceedings 2009/290489.' 'Both notices of motion filed on 6 September 2013 seeking a concurrent hearing are dismissed.' 'The notice of motion filed on 6 September 2013 seeking leave for AMPCI to be represented by two sets of solicitors and counsel is...