In the Matter of HIH Insurance Limited (In Liquidation) (ACN 008 636 575) and Others; In the Matter of HIH Insurance Limited (In Liquidation) (ACN 008 636 575) and Others; In the Matter of HIH Insurance Limited (In Liquidation); Cuong Ly v HIH Insurance Limited (In Liquidation) [2017] NSWSC 380

Supreme Court New South Wales

Medium Neutral Citation: In the Matter of HIH Insurance Limited (In Liquidation) (ACN 008 636 575) and Others; In the Matter of HIH Insurance Limited (In Liquidation) (ACN 008 636 575) and Others; In the Matter of HIH Insurance Limited (In Liquidation); Cuong Ly v HIH Insurance Limited (In Liquidation) [2017] NSWSC 380 Hearing dates: 10 March 2017 Date of orders: 10 March 2017 Decision date: 10 March 2017 Jurisdiction: Equity Before: Brereton J Decision: See [38] Catchwords: CORPORATIONS – TRADE PRACTICES – misleading and deceptive conduct – damages – shareholder class action - whether proceeds of sale of shares acquired and then on-sold during inflationary period should be taken into account in assessing damages – held, sales must be taken into account.

PROCEDURE – judgments and orders – where plaintiff claims interest prescribed by Civil Procedure Act s 100 – where final judgment in proceedings will not be a money judgment – held, plaintiffs not entitled to sought interest.

PROCEDURE – costs – allegation by unsuccessful party of costs thrown away in respect of certain matters – defendants not required to pay costs of plaintiff in respect of unnecessary tender bundles and hearing time caused by plaintiff's omissions. Legislation Cited: (CTH) Corporations Act 2001, s 563B (NSW) Civil Procedure Act 2005, s 100 Cases Cited: Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) [2010] NSWSC 239 Dura Pharmaceuticals Inc v Broudo 544 US 336 (2005) McGrath v Sturesteps [2011] 81 NSWLR 690 HIH Insurance Ltd, In the matter of [2016] NSWSC 482 Hussey v Eels [1990] 2 QB 227 Sturesteps v AV McGrath & Ors [2010] NSWSC 896 White v Norman; Re Forest Enterprises Australia Ltd (No 2) (2012) 202 FCR 38; (2012) 86 ACSR 727; [2012] FCA 163 Texts Cited: S Francis, 'Meet Two-Face: The Dualistic Rule 10b-5 and the Quandary of Offsetting Losses by Gains' (2009) 77 Fordham Law Review 3045 D Grave, L Watterson and H Mould, 'Causation, loss and damage: Challenges for the new shareholder class action' (2009) 27 Companies and Securities Law Journal 483 Category: Principal judgment Parties: 2013/320171 Barry Alexander Smith and Others as named in Annexure A to the Originating Process (plaintiffs)