CVC Limited v Trinity Limited [2009] NSWSC 640

New South Wales Supreme Court

CITATION : CVC Limited v Trinity Limited [2009] NSWSC 640

HEARING DATE(S) : 26 June 2009

JUDGMENT DATE : 26 June 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 26 June 2009

DECISION : Order that the second and third defendants' notice of motion filed 19 June 2009 be dismissed with costs.

CATCHWORDS : No question of principle

CVC Limited & Ors PARTIES : v Trinity Limited & Ors

FILE NUMBER(S) : SC 50059/09

COUNSEL : Plaintiffs: R E Dubler SC with A Harding Defendants: N J Kidd with V Thomas

SOLICITORS : Plaintiffs: DLA Phillips Fox Defendants: Middletons Lawyers

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

WHITE J

Friday, 26 June 2009

50059/09 CVC Limited & Ors v Trinity Limited & Ors JUDGMENT – for summary dismissal 1 HIS HONOUR: The second and third defendants seek orders for the summary dismissal of the proceedings against them. They submit that it is not seriously arguable that clause 7.2 of the separation agreement, or any other provision of the separation agreement, notably clauses 7.4 and 11.6, impose any obligation on them to buy, or arrange a buyer for, the CVC units. They submit it is not seriously arguable that there is any implied term requiring them to co-operate to achieve that outcome, and that the only breach of the contract the plaintiff can arguably establish would be a breach by the first defendant. 2 Applications for summary dismissal are not regarded with favour in the commercial list. I was told that the practical reason for the second and third defendants making this application is that, whilst they remain parties to the proceedings, the plaintiffs will be seeking discovery of a wide range of documents from them, and that they ought not be exposed to the risk of having given such discovery if they are not proper parties to the proceedings. I am not sure that much would practically be gained by such an approach because if the second and third defendants do have relevant documents, then they will doubtless be required to produce them, whether on discovery or subpoena. Be that as it may, I would not refuse the application simply on the ground that such applications are not regarded with favour in the commercial list.