Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254 Hearing dates: On the papers Decision date: 26 October 2023 Before: Bell CJ; Leeming JA; Kirk JA Decision: 1. In addition to order 3 made on 8 September 2023, also set aside the answers to questions 9(a) and (b), 16(a), 17(a), 20 and 41. 2. In lieu of the answers set aside by order 3 made on 8 September 2023 and order 1 above, answer those questions as follows: Questions 1-4: "Insofar as these questions are directed to Mr Naaman's and JPG's standing to sue for breaches of fiduciary duty owed by Jaken to JPG, they do not arise because no such duty was owed. Otherwise, it is unnecessary to answer these questions." Questions 5(c) and (d), 6(b) and (c), 8, 9(a) and (b), 19, 20, 28(c) and (d), 29(b) and (c), 31, 32(a) and (b), 33, 34 and 37: "No". Questions 7 and 30: "Insofar as it concerns Peter Sleiman, no". Questions 12, 14, 16(a), (c) and (d), 17(a), (b) and (c): "Inappropriate to answer in light of the ambiguity in the definition of 'Draw Down' and the answer not binding the Bank". Question 18: "Inappropriate to answer in the absence of the National Australia Bank". Questions 35 and 41: "Inappropriate to answer." Question 36: "Insofar as any accessorial liability is based on the contention that Jaken owed JPG fiduciary obligations, no." 3. Dismiss the notice of motion filed on 21 September 2023 with costs. 4. Subject to 3 above, there be no order as to the costs of the appeal, with the intention that the parties bear their own costs. 5. Direct the parties to file and serve an agreed document consolidating the questions and answers reflecting the above, or in the absence of agreement, documents containing the questions and answers for which they contend and short submissions in support of their contentions, within 7 days of today, with a view to those questions and answers being incorporated into orders made by the Court. 6. Remit the proceedings to the Equity Division for decision of all remaining issues. Catchwords: PROCEDURE – parties directed to supply submissions as to appropriate orders after interlocutory appeal determined – one party seeks special leave – whether orders should be made at all – other party seeks interlocutory relief – such relief should be sought in the Equity Division – whether all of numerous questions asked by judge need to be answered – answers to some but not all questions given Cases Cited: Jaken Properties Australia Pty Ltd v Naaman [2023] NSWCA 214 Category: Consequential orders Parties: Jaken Properties Australia Pty Ltd as trustee for the Sly Fox Family Trust (First Appellant) Peter Sleiman (Second Appellant) Tony Sleiman (Third Appellant) Superior Family Investments Pty Ltd (Fourth Appellant) O'Malley's Hotel Pty Ltd (Fifth Appellant) PSJK Holdings Pty Ltd (Sixth Appellant) Powerhouse Corporation Pty Ltd (Seventh Appellant) Anthony Naaman (Respondent) Representation: Counsel: J C Kelly SC, A Maroya, S V Shepherd (Appellants) P Afshar, N Wootton (Respondent)