ACD Tridon v Tridon Australia [2004] NSWSC 480

ACD Tridon v Tridon Australia [2004] NSWSC 480

Where a party's undertakings to the court are expressly subject to further order, the court may grant leave to vary them if the variation can be accommodated without undermining the core bargain embodied in the undertakings. Permitting lawyers to interview and take statements from a witness (covering only events prior to giving of the undertakings), and inspect specified documents, can be appropriate where it is possible such evidence is relevant and necessary for preparation, subject to safeguards that prevent broader dissemination or use without leave. No need exists for proof of a material change of circumstances in these circumstances, nor is there reason to permit reciprocal...

Jurisdiction
Australia
Judgment Date
07 June 2004
Procedural Posture
Equity Proceeding / Interlocutory Application Seeking Variation of Undertakings and Related Discovery Orders
Outcome
Application granted in part; leave to vary undertakings given to permit limited statement from Mr Arkin, and for ACDT's legal representatives to inspect certain documents, both subject to conditions; further orders for security for costs made.
Legal Topics
['variation of Undertakings' 'undertakings to Court' 'access to Evidence/discovery' 'oppression Remedies' 'directors’ Duties']
['equity' 'practice and Procedure' 'corporations Law'] ['variation of Undertakings' 'undertakings to Court' 'access to Evidence/discovery' 'oppression Remedies' 'directors’ Duties']

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Procedural Posture

Equity Proceeding / Interlocutory Application Seeking Variation of Undertakings and Related Discovery Orders

Legal Issues

  1. 1 ['Whether undertakings given by ACDT to the Court should be varied to permit its legal representatives to interview Mr Arkin and to inspect certain documents;' "Whether discovery/inspection of the Watson Reports and associated documents should be permitted to ACDT's legal representatives;" 'Whether orders should be made to prevent ACDT from adducing evidence or communicating information to its client without further leave;' 'Whether a material change of circumstances is required to permit variation of undertakings made to the court;' "Whether Mr Lennox should be relieved of his undertaking not to remove Mr Arkin as TAPL director if ACDT's undertakings are varied;" 'Quantum of further security for costs to be paid by ACDT.']

Ratio Decidendi

Where a party's undertakings to the court are expressly subject to further order, the court may grant leave to vary them if the variation can be accommodated without undermining the core bargain embodied in the undertakings. Permitting lawyers to interview and take statements from a witness (covering only events prior to giving of the undertakings), and inspect specified documents, can be appropriate where it is possible such evidence is relevant and necessary for preparation, subject to safeguards that prevent broader dissemination or use without leave. No need exists for proof of a material change of circumstances in these circumstances, nor is there reason to permit reciprocal...

Court Disposition

Application granted in part; leave to vary undertakings given to permit limited statement from Mr Arkin, and for ACDT's legal representatives to inspect certain documents, both subject to conditions; further orders for security for costs made.

Orders

  • ['Leave granted to ACDT to vary its undertakings to permit its Australian legal representatives (subject to conditions) to interview and take a statement from Mr Harry Arkin with respect to (i) paragraphs 15 to 25, (ii) paragraphs 94A to 97B, and (iii) paragraphs 97C to 97K (but only pre-7 November 2002) of the...