Connective Services Pty Ltd & Anor v Slea Pty Ltd & Ors

[2017] VSC 182

Supreme Court of Victoria

Built by Barristers,
For Australian Law.

1. Practice and Procedure
2. › Discovery
3. › Implied undertaking — Harman undertaking — use of discovered documents for collateral purpose
1. Practice and Procedure
2. › Discovery
3. › Alternative derivative source — transcript of interlocutory argument — whether release of undertaking
1. Practice and Procedure
2. › Abuse of Process
3. › Commencement of proceeding in breach of implied undertaking — stay of proceeding
1. Corporations
2. › Financial Assistance
3. › Section 260A Corporations Act — enforcement of constitutional pre-emptive rights — whether financial assistance

References to a discovered document by counsel during interlocutory argument do not release the Harman implied undertaking, and the transcript of such argument cannot be used as an 'alternative derivative source' to justify commencing a separate proceeding based on the document's contents.
The tender of a discovered document as an exhibit at a subsequent interlocutory hearing does not retrospectively cure a breach of the implied undertaking that occurred when a proceeding was commenced in reliance on that document prior to the tender.
A company enforcing pre-emptive rights provisions in its own constitution by litigation does not constitute financial assistance under s 260A of the Corporations Act where there is no identifiable transaction, no new rights are created, and the company is merely seeking adherence to its constitution.