Oasis Fund Management v ABN Amro [2009] NSWSC 967

Oasis Fund Management v ABN Amro [2009] NSWSC 967

Although the first defendant's concern that it lacked sufficient information was made in good faith and weighed against immediate mediation, the Court considered that a skilled mediator and appropriate position statements could address that difficulty. The investors' personal circumstances, the risk of escalating costs and psychological entrenchment, and the depletion of insurance by defence costs meant that the prospects of successful early mediation sufficiently outweighed the disadvantages of ordering mediation over the first defendant's opposition.

Jurisdiction
Australia
Judgment Date
08 September 2009
Procedural Posture
Application for Proceedings to Be Referred to Mediation / Procedural Ruling in the Equity Division Commercial List
Outcome
The plaintiffs' application for referral to mediation was granted in substance; the matter was stood down for short minutes of order to enable mediation before the Honourable Roger Gyles AO QC on 29 and, if necessary, 30 September 2009.
Legal Topics
['referral to Mediation' 'timing of Mediation' 'discovery and Evidence Costs' 'misleading or Deceptive Conduct Allegations']
['practice and Procedure' 'alternative Dispute Resolution' 'commercial Litigation'] ['referral to Mediation' 'timing of Mediation' 'discovery and Evidence Costs' 'misleading or Deceptive Conduct Allegations']

Case Brief

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Procedural Posture

Application for Proceedings to Be Referred to Mediation / Procedural Ruling in the Equity Division Commercial List

Legal Issues

  1. 1 ["Whether the proceedings should be referred to mediation under s 26 of the Civil Procedure Act 2005 despite the first defendant's opposition at that time." 'Whether sufficient information was available to enable the parties to make a realistic assessment of their positions for mediation.' "Whether early mediation was justified having regard to costs, delay, investors' circumstances, and insurance limits affecting the second defendant."]

Ratio Decidendi

Although the first defendant's concern that it lacked sufficient information was made in good faith and weighed against immediate mediation, the Court considered that a skilled mediator and appropriate position statements could address that difficulty. The investors' personal circumstances, the risk of escalating costs and psychological entrenchment, and the depletion of insurance by defence costs meant that the prospects of successful early mediation sufficiently outweighed the disadvantages of ordering mediation over the first defendant's opposition.

Court Disposition

The plaintiffs' application for referral to mediation was granted in substance; the matter was stood down for short minutes of order to enable mediation before the Honourable Roger Gyles AO QC on 29 and, if necessary, 30 September 2009.

Orders

  • ['The proceedings are to be referred to mediation under s 26 of the Civil Procedure Act 2005.' 'The matter is stood down so that the parties can prepare short minutes of order for steps needed to enable the mediation to proceed before the Honourable Roger Gyles AO QC on 29 and, if necessary, 30 September 2009.' 'The...