Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq) [2020] FCA 1773

Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq) [2020] FCA 1773

Ms Nicholson established good reason for release from any implied undertaking because the documents were plainly relevant and significant to the class action, obtaining them again would duplicate cost and cause delay, the producing parties had not objected, no confidentiality, privilege or commercial sensitivity was shown, and the only identified detriment was potential exposure to liability, which was not relevant prejudice. It was therefore appropriate to make orders releasing her from any implied undertaking and granting leave to use the documents in NSD 939 of 2020.

Jurisdiction
Australia
Judgment Date
07 December 2020
Procedural Posture
Application for Release From an Implied Undertaking Concerning Documents Produced Under Orders for Production in Company Winding Up Proceedings / Orders Made on 7 December 2020
Outcome
Application granted; applicant released from any implied undertaking to the extent necessary and granted leave to use the documents in proceeding NSD 939 of 2020; no order as to costs.
Legal Topics
['implied Undertaking as to Use of Documents' 'release From Implied Undertaking' 'summonses for Examination and Orders for Production' 'company Winding Up' 'use of Documents in Related Class Action Proceedings']
['practice and Procedure' 'corporations' 'corporate Insolvency'] ['implied Undertaking as to Use of Documents' 'release From Implied Undertaking' 'summonses for Examination and Orders for Production' 'company Winding Up' 'use of Documents in Related Class Action Proceedings']

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Procedural Posture

Application for Release From an Implied Undertaking Concerning Documents Produced Under Orders for Production in Company Winding Up Proceedings / Orders Made on 7 December 2020

Legal Issues

  1. 1 ['Whether the applicant should be released from any implied undertaking not to use documents obtained in these proceedings for a collateral purpose.' 'Whether the applicant should be granted leave to use documents produced under orders for production in proceeding NSD 939 of 2020.' 'Whether an order releasing the undertaking was necessary where the documents were obtained by an eligible applicant in examinations connected with winding up proceedings.']

Ratio Decidendi

Ms Nicholson established good reason for release from any implied undertaking because the documents were plainly relevant and significant to the class action, obtaining them again would duplicate cost and cause delay, the producing parties had not objected, no confidentiality, privilege or commercial sensitivity was shown, and the only identified detriment was potential exposure to liability, which was not relevant prejudice. It was therefore appropriate to make orders releasing her from any implied undertaking and granting leave to use the documents in NSD 939 of 2020.

Court Disposition

Application granted; applicant released from any implied undertaking to the extent necessary and granted leave to use the documents in proceeding NSD 939 of 2020; no order as to costs.

Orders

  • ['The applicant is released, to the extent necessary and for the purpose set out in Order 2 below, from any implied undertaking with respect to the use of all documents produced in response to the orders for production issued in this proceeding on Ian Williams, Paul Raftery, Paul Nielsen, Jason Mark Tracy and David...