Australian Pipeline Ltd v Hastings Funds Management Limited [2014] NSWCA 398

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Pipeline Ltd v Hastings Funds Management Limited [2014] NSWCA 398 Hearing dates: 19 August 2014 Decision date: 21 November 2014 Before: Bathurst CJ at [1]; Beazley P at [80]; Macfarlan JA at [81] Decision: 1 Appeal allowed. 2 Set aside the orders made by the primary judge on 26 November 2013. 3 Direct the parties within 14 days to bring in Short Minutes of Order to give effect to these reasons. 4 Order the respondent to pay the appellant's costs of the appeal and the costs in the Court below. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - construction - calculation of incentive fee - principles - consideration of regulatory regime - plain meaning - purpose of provision not of particular assistance - significance of express exclusion - significance of anomalies - result not arbitrary or capricious Legislation Cited: Corporations Act 2001 (Cth), ss 633, 635, 661B, 666B, 761A, 793B, 793C, 822B and 822C Corporations Regulations 2001 (Cth), reg 6.8.01 Cases Cited: AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd [2010] NSWSC 985; (2010) 15 BPR 28,199 Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36; (1973) 129 CLR 99 Australian Pipeline v Hastings [2013] NSWSC 1657 Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301 Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999] 1 AC 266 Director of Public Prosecutions for the Commonwealth of Australia v JM [2013] HCA 30; (2013) 250 CLR 135 Electricity Generation Corporation (trading as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 88 ALJR 447 Mainteck Services Pty Ltd v Stein Huertey SA [2014] NSWCA 184; (2014) 310 ALR 113 North v Marra Developments Limited [1981] HCA 68; (1981) 148 CLR 42 Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164 Texts Cited: Renard and Santamaria "Takeovers and Reconstructions in Australia" (Service 70, March 2011, LexisNexis Butterworths) Category: Principal judgment Parties: Australian Pipeline Ltd as responsible entity for APA Sub Group formerly known as Hastings Diversified Utilities Fund (Appellant) Hastings Fund Management Limited (Respondent) Representation: Counsel: I M Jackman SC / S Nixon (Appellant) J C Sheahan QC / M J Darke / Q Rares (Respondent) Solicitors: Clifford Chance (Appellant) Herbert Smith Freehills (Respondent) File Number(s): 2013/339830 Decision under appeal Citation: [2013] NSWSC 1657 Date of Decision: 2013-10-16 00:00:00 Before: McDougall J File Number(s): 2013/134612