Palmera Import Export Pty Limited trading as King of Tobacco v Tobacco Dome Pty Limited & Ors [2007] NSWSC 1218

New South Wales Supreme Court

CITATION : Palmera Import Export Pty Limited trading as King of Tobacco v Tobacco Dome Pty Limited & Ors [2007] NSWSC 1218

HEARING DATE(S) : 26/10/07 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 26 October 2007

DECISION : Application for separate question order dismissed.

CATCHWORDS : Separate question orders - Access to documents

LEGISLATION CITED : Fair Trading Act 1987 (NSW) Fair Trading Act 1985 (Vic)

CASES CITED : Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130

Palmera Import Export Pty Limited t/as King of Tobacco (Plaintiff) PARTIES : Tobacco Dome Pty Limited (First Defendant) Costs Sarris (Second Defendant) Cignall Pty Limited (Third Defendant)

FILE NUMBER(S) : SC 50130/05

COUNSEL : Mr RW Tregenza (Plaintiff) Mr S Tatarka (Defendants)

SOLICITORS : Malouf Solicitors (Plaintiff) Belleli King & Associates (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Friday 26 October 2007 ex tempore Revised 29 October 2007

50130/05 Palmera Import Export Pty Limited t/as King of Tobacco v Tobacco Dome Pty Limited & Ors JUDGMENT

The nature of the proceedings 1 The summons identifies, from the plaintiff's perspective, the principal issues of the dispute. Suffice it to say that the dispute concerns the plaintiff's alleged entitlement to the benefit of one half of the shares in the third defendant. The position put by the plaintiff is that it originally entered into a tripartite arrangement with the first defendant and a third party. The agreement had been that the businesses of the plaintiff, the first defendant and the third party would be merged. In order to achieve that merger, those parties had agreed to transfer their respective businesses to an entity described in the deed of 1 July 2004 as 'Newco'. Each of the parties to the deed carried on the business of coordination and facilitation of dealings between tobacco wholesalers and groups of tobacco retailers. 2 The plaintiff's claim is that in late 2004 the agreement contained within the deed was terminated with the third party no longer a participant. It is the plaintiff's case that the agreement remained on foot between the plaintiff and the first defendant. The first defendant denies that contention. 3 It is unnecessary for present purposes to repeat any of the additional detail to be found in the summons or the defence to the summons nor the detail to be found in the cross claim, save to observe that one of the approaches taken by the plaintiff to the defendants' stance is that the first defendant is estopped from denying that an agreement [of the type for which the plaintiff contends], was entered into. The usual elements of an estoppel, including representation detriment and reliance need to be proved by the plaintiff if it is to succeed in that estoppel argument. The plaintiff also relies on causes of action for misleading and deceptive conduct under the New South Wales and/or Victorian Fair Trading Act legislation. 4 The matter has had some history of delay. The separate question application 5 The defendants seek an order that the court make a separate question order limiting the hearing [now fixed for 17 March 2008] to issues of liability alone, any issue as to damages to be determined following the liability judgment. 6 The principled exercise of the court's discretion requires to treat with the usual questions which arise where a separate question order is sought. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells against the making of an order because related facts and renewed issues of credit may well arise at a later stage in the proceedings, as Giles CJ Com Div [as his Honour then was], explained in Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 142: