Gazcorp Pty Limited v Woolworths Group Limited [2020] NSWSC 1836

Supreme Court New South Wales

Medium Neutral Citation: Gazcorp Pty Limited v Woolworths Group Limited [2020] NSWSC 1836 Hearing dates: 11 December 2020 Decision date: 17 December 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Other than sub-paragraph 28(d) of the affidavit affirmed on 29 May 2020 by Mr Ralph Kemmler, which pursuant to s 192A of the Evidence Act 1995 (NSW) I rule inadmissible at the final hearing, the plaintiff's notice of motion filed on 20 November 2020 is dismissed. 2. Order the plaintiff to pay the defendant's costs of the notice of motion filed on 20 November 2020. Catchwords: CIVIL PROCEDURE – advance ruling as to admissibility of evidence – s 192A Evidence Act 1995 (NSW) – parties enter into "Standstill Agreement" by which they agree to conduct without prejudice negotiations in relation to new agreement for lease –whether impugned material is within provisions of Standstill Agreement or subject of without prejudice privilege and inadmissible under s 131 of the Evidence Act – held that internal documents not created "in relation to" proposed new agreement for lease and not within terms of Standstill Agreement – internal documents held not to be communications between persons in dispute within meaning of s 131 – held that absence of material at trial may create misleading impression of inactivity in relation to status of new lease – ruling that most of impugned material not inadmissible. Legislation Cited: Evidence Act 1995 (NSW), ss 131(1), 131(2)(g), 192A Cases Cited: Australian Securities and Investments Commission v Rich [2004] NSWSC 1089 Burg Design Pty Ltd v Wolki (1999) 162 ALR 639; [1999] FCA 388 First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266; [2004] NSWSC 846 Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 GPI Leisure Corp Ltd (in liq) v Yuill (1997) 42 NSWLR 225 Hera Resources Pty Ltd v Gekko Systems Pty Ltd [2019] NSWSC 37 Korean Airlines Co Ltd v ACCC (No 3) (2008) 247 ALR 781; [2008] FCA 701 Liu v Fairfax Media Publications Pty Ltd (2012) 84 NSWLR 547; [2012] NSWSC 1352 Liu v Fairfax Media Publications Pty Ltd (2012) 91 ACSR 158; [2012] NSWSC 900 Seven Network Ltd v News Ltd (2006) 151 FCR 450; [2006] FCA 343 Silver Fox Company Pty Ltd v Lenard's Pty Ltd (No 3) [2004] FCA 1570; (2004) 214 ALR 621 Category: Principal judgment Parties: Gazcorp Pty Limited (Plaintiff/Applicant) Woolworths Group Limited (Defendant/Respondent) Representation: Counsel: C McMeniman (Plaintiff/Applicant) M Cairns (Defendant/Respondent)