Supreme Court New South Wales Medium Neutral Citation: Millinium Capital Managers Ltd v Soma Group Ltd (No.3) [2020] NSWSC 966 Hearing dates: On the papers Date of orders: 28 July 2020 Decision date: 28 July 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Notice of motion of 1 July 2020 dismissed with costs Catchwords: CIVIL PROCEDURE – discovery in advance of the parties having served their evidence CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether "exceptional circumstances" Legislation Cited: Practice Note SC Eq 11 Cases Cited: ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton; [2019] NSWSC 1024 Millinium Capital Managers Ltd v Soma Group Ltd [2020] NSWSC 300 Millinium Capital Managers Ltd v Soma Group Ltd (No 2) [2020] NSWSC 474 Category: Procedural and other rulings Parties: Millinium Capital Managers Ltd (Plaintiff) Soma Group Ltd (First Defendant) Logic Fund Management Ltd (Second Defendant) Gregory Phillipe Marshall (Third Defendant) Paul John Chamberlain (Fourth Defendant) Representation: Counsel: J R Willis (Plaintiff) G P Gee (Defendant) Solicitors: Piper Alderman (Plaintiff) Maddocks (Defendants) File Number(s): 2019/291329 Judgment 1. The background to these proceedings is set out in my judgments of 26 March 2020 [1] and 30 April 2020 [2] . 2. The plaintiff, Millinium Capital Managers Ltd, is the Responsible Entity for an ASX-listed managed investment scheme known as the Millinium's Alternatives Fund. 3. Millinium claims that the first and second defendants, Soma Group Ltd and Logic Fund Management Ltd, both incorporated in New Zealand, induced it to subscribe for shares in Soma and to take various other steps based on representations, said to be misleading or deceptive, concerning: 1. Soma's proposed acquisition of the IXL branded jam, fruit spread and conserve products business and Taylor's branded sauce products business; 2. Soma's alleged partnership with a New Zealand Government-owned entity known as Plant and Food Research; and 3. the use that Soma would make of the funds paid by Millinium to Soma for subscription of shares. 1. Millinium now seeks disclosure of seven categories of documents. 2. As Millinium is seeking disclosure in advance of having served its evidence, it must show that there are "exceptional circumstances" necessitating disclosure. [3] 3. I am not satisfied that exceptional circumstances exist. 4. Millinium contends that the documents sought arise from matters solely within Soma's knowledge and may cast light on "critical issues" in the proceedings. The particular issues identified are the nature of the commitment made to Soma by an investor consortium associated with the proposed acquisition of the IXL and Taylor's businesses, the relationship or arrangement between Soma and Plant and Food Research, and the use made by Soma of Millinium's subscription funds. 5. Assuming the correctness of these propositions, it does not, in my opinion, follow that there are exceptional circumstances warranting disclosure at this stage. 6. Millinium does not contend that it needs the disclosure sought to prepare and serve its evidence. 7. If, as Millinium apprehends, Soma has in its possession documents of the kind now sought, it seems to me likely, if not inevitable, that they will be deployed by Soma in the evidence it serves to meet Millinium's claim. [4] 8. It may be that once the parties have served evidence, and once disclosure is made by Soma in the usual way, they will be obliged to produce the documents now sought. It may be that those documents will assist Millinium identifying potential witnesses who it may contact to obtain evidence. That is the usual course and I see no reason why it should not be followed in this case. 9. The plaintiff's notice of motion of 1 July 2020 is dismissed with costs. 10. The matter will be listed for further directions on 31 July 2020. In the meantime, the parties should confer and agree on a timetable for the future conduct of the proceedings. ********** Endnotes 1. Millinium Capital Managers Ltd v Soma Group Ltd [2020] NSWSC 300. 2. Millinium Capital Managers Ltd v Soma Group Ltd (No 2) [2020] NSWSC 474. 3. Practice Note SC Eq 11. 4. cf ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton; [2019] NSWSC 1024 at [32]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2020