Cyclopharm Ltd v Morcos [2021] NSWSC 1010

Cyclopharm Ltd v Morcos [2021] NSWSC 1010

Cyclopharm established special circumstances justifying variation of the undertaking: the contemplated German proceedings are closely related and arise from the same wrongful conduct involved in the NSW proceedings, and fairness requires allowing Cyclopharm to seek legal advice and possibly commence proceedings against the German defendants in Germany. The express undertaking does not extend to proceedings commenced by Cyclopharm’s subsidiaries outside Australia. No active defendant opposed the application or established prejudice.

Jurisdiction
Australia
Judgment Date
12 August 2021
Procedural Posture
Interlocutory Application / Application for Variation of Undertaking (search Orders)
Outcome
Application granted; express undertaking varied as sought
Legal Topics
['implied Undertakings' 'release From Undertakings' 'search Orders' 'varying Undertakings' 'special Circumstances' 'civil Proceedings']
['civil Procedure' 'equity'] ['implied Undertakings' 'release From Undertakings' 'search Orders' 'varying Undertakings' 'special Circumstances' 'civil Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application / Application for Variation of Undertaking (search Orders)

Legal Issues

  1. 1 ['Should the Court vary Cyclopharm’s express undertaking not to use documents obtained via search orders for proceedings outside Australia?' 'Are there special circumstances warranting partial release from or variation of the undertaking in order to seek advice and possibly commence proceedings in Germany?']

Ratio Decidendi

Cyclopharm established special circumstances justifying variation of the undertaking: the contemplated German proceedings are closely related and arise from the same wrongful conduct involved in the NSW proceedings, and fairness requires allowing Cyclopharm to seek legal advice and possibly commence proceedings against the German defendants in Germany. The express undertaking does not extend to proceedings commenced by Cyclopharm’s subsidiaries outside Australia. No active defendant opposed the application or established prejudice.

Court Disposition

Application granted; express undertaking varied as sought

Orders

  • ['Plaintiffs permitted to disclose documents listed in Annexure AJC-21 to the affidavit of Andrew John Christopher sworn 22 April 2021 to Rickert Rechtsanwaltsgesellschaft mbH (Rickert Law) or other legal advisers retained by them in Germany for purposes of obtaining legal advice and/or commencing and conducting...