Federal Court of Australia

Bunter v Hardy, in the matter of FT Sydney Pty Ltd (subject to a deed of company) [2026] FCA 701

ORDERS

THE COURT ORDERS THAT:

1.    Until further order of the Court, subject to order 2, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the ground that this order is necessary to prevent prejudice to the proper administration of justice, publication or disclosure of the contract of sale dated 4 September 2025 between Cbus Property C2 Pty Ltd (ACN 688 295 874) (Cbus Property) and the fourth defendant in relation to the purchase by Cbus Property of a 50% tenant-in-common interest in the properties situated at 15-17 Hunter Street, 19-21 Hunter Street, 23 Hunter Street, 101-103 Pitt Street, 105 Pitt Street and 107 Pitt Street, Sydney (including the attached Cooperation Deed and any executed copies of that deed) (collectively, the Cbus Contract) be prohibited, and that document be confidential for the purposes of rule 2.32(1)(b) of the Federal Court Rules 2011 (the Rules).

2.    Publication or disclosure of the Cbus Contract may be made to:

(a)    the Court, including all necessary staff of the court, including without limitation any associate, orderly or court recording officer;

(b)    the plaintiffs’ legal representatives; and

(c)    the plaintiffs (excluding the sixteenth plaintiff).

3.    The Registrar be directed that any application by any person for leave to inspect the Cbus Contract made under rule 2.32(4) of the Rules, or otherwise, be referred to a judge of the Court together with a copy of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    These reasons address an urgent interlocutory application (Interlocutory Application or IA) filed by Merricks Capital Pty Ltd (Merricks), MC P&H Pty Ltd (ACN 664 068 964) in its capacity as trustee for MC P&H Fund, and MC PH II Pty Ltd (ACN 692 220 812) as trustee for MC PH II Fund (collectively, the Merricks SPVs) seeking a suppression order pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). This Interlocutory Application has come before me in my capacity as Commercial & Corporations Duty Judge. For the reasons which follow, I have declined to make the orders sought by the Merricks SPVs, and instead make the following orders:

(a)    Until further order of the Court, subject to (b) below, pursuant to s 37AF of the FCA Act, and on the ground that this order is necessary to prevent prejudice to the proper administration of justice, publication or disclosure of the contract of sale dated 4 September 2025 between Cbus Property C2 Pty Ltd (ACN 688 295 874) (Cbus Property) and the fourth defendant (FT Sydney) in relation to the purchase by Cbus Property of a 50% tenant-in-common interest in the properties situated at 15-17 Hunter Street, 19-21 Hunter Street, 23 Hunter Street, 101-103 Pitt Street, 105 Pitt Street and 107 Pitt Street, Sydney (including the attached Cooperation Deed and any executed copies of that deed) (collectively, the Cbus Contract) be prohibited, and that document be confidential for the purposes of rule 2.32(1)(b) of the Federal Court Rules 2011 (Cth) (the Rules).

(b)    Publication or disclosure of the Cbus Contract may be made to:

(i)    the Court, including all necessary staff of the court, including without limitation any associate, orderly or court recording officer;

(ii)    the plaintiffs’ legal representatives; and

(iii)    the plaintiffs (excluding the sixteenth plaintiff).

(c)    The Registrar be directed that any application by any person for leave to inspect the Cbus Contract made under rule 2.32(4) of the Rules, or otherwise, be referred to a judge of the Court together with a copy of these orders.

2    It is necessary to explain some of the background, at least to a limited extent. By way of general background, there is a present development of property at a site located at Pitt Street and Hunter Street in Sydney (Development Site), comprising 74 amalgamated property titles (the Properties). The Properties are presently owned by FT Sydney and are subject to an approved development application for a high-rise hybrid commercial tower known as the Halo Project.

3    The Development Site formerly consisted of a number of commercial buildings and the Properties were previously owned by a number of persons and entities (primarily in the nature of interests in strata title). These ownership interests in the Properties were acquired by FT Sydney. Without descending into the factual and legal complexity of all the relevant transactions, it is common ground that the consideration payable by FT Sydney to the former owners of the Properties was agreed to be partly deferred, with the balance to be payable on completion of the Halo Project. This group of former owners of the Properties have come to be known as the Deferred Vendors.

4    The Merricks SPVs are members of a syndicate of senior secured lenders (Senior Secured Creditors) to the third to fifth defendants in this proceeding (collectively, the FT Companies). The Senior Secured Creditors are the first ranking secured creditors (who hold their security interest via a security trustee) in relation to the assets and undertakings of the FT Companies.

5    On 4 September 2025, FT Sydney and Cbus Property entered into the Cbus Contract, which:

(a)    provides for an upfront payment by Cbus Property and a contingent, performance-based payment subject to the value achieved by FT Sydney on completion of the sale of the remaining 50% interest in the Properties (Remaining 50%) in the Halo Project; and

(b)    is subject to certain conditions which must be met in the immediate term for the settlement to occur.

6    The Merricks SPVs expect settlement of the Contract to occur in July 2026.

7    On or about 1 April 2026, Mr James Milligan, the director of the FT Companies and the sixth defendant, resolved to place the FT Companies into voluntary administration.

8    The first and second defendants were appointed as the administrators of the FT Companies (Administrators). The first and second creditors’ meetings have been held. The Administrators proposed entry into a deed of company arrangement (the DOCA), which met with the approval of the Merricks SPVs but not the Deferred Vendors. The Administrators voted in favour of the DOCA. It is unnecessary to delve into the details of the DOCA, save to observe that it is common ground that once the DOCA is effectuated, it will have the effect of adversely affecting the interests of the Deferred Vendors, including that they will receive a return of less than 1 cent in every dollar owed to them, with their rights as against FT Sydney otherwise released and extinguished.

9    Twenty-two of the Deferred Vendors (the Plaintiffs) have commenced the present proceedings on an urgent basis seeking that the DOCA be terminated and, alternatively, that it be varied. Although the Originating Process filed in this Court on 29 May 2026 does not set out all of the grounds which the Plaintiffs advance, they have been communicated in a letter dated 26 May 2026 from the Plaintiffs’ solicitors, Maddocks Lawyers, to the Administrators’ solicitors, Ashurst. Again, it is unnecessary at the present time to detail the many claims that the Plaintiffs advance, other than to observe that they broadly assert that the DOCA has been entered into for improper purposes, is an abuse, and/or is in furtherance of a strategy to discriminate or unfairly treat the interests of the Deferred Vendors. The Administrators deny the Plaintiffs’ claims and their position is set out in a letter from Ashurst to Maddocks dated 28 May 2026. The Merricks SPVs and other parties also deny these claims.

10    Proceedings were commenced in this Court on Friday, 29 May 2026. At that time, the Plaintiffs sought, and were granted leave, to serve a Notice to Produce on the Administrators seeking production of the Cbus Contract. The proceedings generally, including the Notice to Produce, were made returnable before me on Monday, 1 June 2026. The Merricks SPVs appeared at that time and sought to be heard as interested parties to the proceedings without becoming parties to the proceedings, and I made such an order (to which there was no objection). Further, at that hearing before me, Senior Counsel for the Plaintiffs called on the Notice to Produce. As I understand it, parts of the Cbus Contract were produced at that time, but all the defendants contended that access to that Contract be restricted to the Plaintiffs’ Counsel and external solicitors pending an application to be made under s 37AF of the FCA Act for suppression and non-publication orders. I made orders that any such application be made the following day and that I would hear it then.

11    By the Interlocutory Application filed on Tuesday, 2 June 2026, the Merricks SPVs sought the following orders:

1.    Pursuant to s 37AF of the FCA Act, and on the ground that this order is necessary to prevent prejudice to the proper administration of justice, publication or disclosure of the Contract be prohibited, and that document be confidential for the purposes of rule 2.32(1)(b) of the Federal Court Rules 2011 (the Rules).

2.    Publication or disclosure of the Contract may be made to:

(a)    the court, including all necessary staff of the court, including without limitation any associate, orderly or court recording officer;

(b)    the plaintiffs’ legal representatives; and

(c)    Mr Andrew John Chalk, a director of the third plaintiff.

3.    The Registrar be directed that any application by any person for leave to inspect the Contract made under rule 2.32(4) of the Rules, or otherwise, be referred to a judge of the court together with a copy of these orders.

12    In support of the Interlocutory Application, the Merricks SPVs read two affidavits: the affidavit of Mr Justin Taede Vaatstra dated 1 June 2026 and the affidavit of Mr Damien Patrick Cuddihy dated 2 June 2026.

13    The defendants supported the Interlocutory Application. The Plaintiffs opposed the Interlocutory Application.

14    As already noted, I declined to make the orders sought by the Merricks SPVs. That was so for the following reasons.

THE RIVAL CONTENTIONS

15    The Merricks SPVs contend that the suppression and non-publication orders are necessary to prevent prejudice to the administration of justice on the basis that the Cbus Contract contains information that is confidential and commercially sensitive, and that disclosure of such information would cause significant commercial and economic harm to the FT Companies and, in turn, the Merricks SPVs. The skeletal basis for these contentions is as follows:

(a)    the terms of Cbus Contract are expressly stated to be confidential;

(b)    the terms of the Cbus Contract set out the purchase price that Cbus Property has agreed to pay in order to acquire a 50% interest in the Properties, and the terms and conditions applicable to that purchase price and the transaction more generally;

(c)    the terms in (b), including the purchase price, are not publicly known;

(d)    the Remaining 50% is held by FT Sydney but it intends to sell that interest at some point in the foreseeable future after settlement of the Cbus Contract;

(e)    it is in the interests of the FT Companies and, specifically, the Merricks SPVs that the value of the sale of the Remaining 50% interest in the Properties is maximised;

(f)    disclosure of the purchase price and other terms of the Cbus Contract would have the effect of setting a ceiling for the value that might be obtained for the sale of the Remaining 50% or otherwise prejudice the prospects of maximising that value;

(g)    at least one of the Plaintiffs, being the sixteenth Plaintiff (Pro-Invest), had previously sought to acquire the 50% interest that Cbus Property is seeking to acquire and had proposed an alternative DOCA which was rejected; and

(h)    if Pro-Invest had knowledge of the terms of the Cbus Contract, it would be in a position of market advantage in seeking to acquire the Remaining 50%, as would any other person in the marketplace.

16    The Merricks SPVs further submitted that the terms of the Cbus Contract were not relevant to any of the grounds upon which the Plaintiffs rely in order to seek a termination of the DOCA. The Merricks SPVs contended that it was only the existence of the Cbus Contract that was relevant to the Plaintiffs’ claims and that to determine the Interlocutory Application, the Court need only be aware that under the Cbus Contract, the Properties are to be transferred and the second ranking security (which is not held by the Plaintiffs) is to be discharged.

17    The Merricks SPVs submitted that it would be sufficient for the Plaintiffs’ purposes if their external legal representatives (Counsel and solicitors) and a director of the third Plaintiff, Mr Andrew John Chalk, who is a practising solicitor, was given the Cbus Contract to enable the Plaintiffs’ external legal representatives to obtain instructions. It was further submitted that in the event that the Plaintiffs’ legal representatives needed to obtain instructions from the other Plaintiffs, they could write to the solicitors for the Merricks SPVs to explain that need and, if agreement could not be reached, approach the Court to vary the orders.

18    The Plaintiffs submitted that the Merricks SPVs had not established that it was necessary to prevent prejudice to the administration of justice that the Cbus Contract be supressed from disclosure to the Plaintiffs as litigants before the Court. It was submitted that the Plaintiffs were entitled to access the Cbus Contract on the following basis:

(a)    the orders sought by the Merricks SPVs are not directed to preventing public disclosure of the documents, but rather at restricting access by parties. In those circumstances, the Merricks SPVs have not sufficiently explained why the implied undertaking does not sufficiently protect any confidential information;

(b)    the Cbus Contract is not tangential to the proceedings. The Merricks SPVs cannot assert the existence of the Cbus Property transaction as a central plank of the DOCA and simultaneously restrict the Plaintiffs’ access to the Cbus Contract;

(c)    the legal representatives for the Plaintiffs will be hindered in obtaining instructions relevant to the proceedings if the Cbus Contract is restricted. In particular, during the course of oral submissions, Senior Counsel for the Plaintiffs stated that, having seen the Cbus Contract, he required the Plaintiffs, with the exception of Pro-Invest, to be granted access to its terms, including the purchase price, in order to receive instructions; and

(d)    there is no evidence for the contentions of the Merricks SPVs that the Plaintiffs, with the exception of Pro-Invest, are property investors or could be properly characterised as market participants for the purpose of the sale of the Remaining 50%.

APPLICABLE PRINCIPLES

19    Part VAA of the FCA Act empowers the Court to make suppression and non-publication orders. As Perram J pointed out in Motorola Solutions, Inc v Hytera Communications Corp Ltd (No 2) [2018] FCA 17 at [6], the principles applicable to the operation and application of Part VAA are well settled and do not need elaboration. I only elaborate upon them in these reasons as necessary to attend to the rival contentions that were raised.

20    Sections 37AF(1) and (2) of the FCA Act empower the Court to make orders prohibiting or restricting the publication or disclosure of, amongst other things, information that comprises evidence or information about evidence on one or more of the grounds in s 37AG(1). The grounds so specified are as follows:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

21    If the Court makes an order, s 37AG(2) requires it to specify the ground or grounds for doing so. Section 37AJ(1) provides that a suppression or non-publication order operates for the period decided by the Court and specified in the order. Section 37AJ(2) provides that in deciding the period for which such an order is to operate, the Court is “to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. By reason of s 37AJ(3), such an order may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

22    Underlying the exercise of power under Part VAA is the interest of the administration of justice. Section 37AE provides that the Court must take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”.

23    The onus that lies on the party seeking an order under s 37AF is a “very heavy one”:  Giddings v Australian Information Commissioner [2017] FCAFC 225 at [25] (Collier, Flick and Charlesworth JJ), cited by Mortimer J (as her Honour then was) in CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050; (2019) 165 ALD 566 at [89]. The party seeking such orders needs to demonstrate and establish that the orders are “necessary” to prevent prejudice to the proper administration of justice: s 37AG(1)(a). It was held in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 (in relation to a similar but not identical provision) that the word “necessary” is a “strong word”: at [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In Hogan, French CJ, Gummow, Hayne, Heydon and Kiefel JJ stated at [31] that:

It is insufficient that the making or continuation of an order under s 50 [of the FCA Act] appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

24    Having regard to the heavy burden to establish that orders are “necessary”, it follows that the relevant applicant must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 at [90] (Thawley, Stewart and Abraham JJ). In Lee at [95], the Full Court upheld as correct the finding made by the primary judge, Bromwich J, that there was a “necessity” to establish “a link between the contended harm and s 37AG(1)(a)”. Bromwich J had stated that it was “critical that a connection be made between the asserted necessity, and the prevention of prejudice to the proper administration of justice”: see Lee at [93].

25    There are “categories” of situations which may give rise to a prejudice to the proper administration of justice that arise more regularly than others, but there is no set of closed “categories”. In Porter v Australian Broadcasting Corporation [2021] FCA 863, Jagot J observed at [85] that:  

…there are well-recognised cases in which the overall administration of justice requires the suppression of some information from the public, reflected in s 37AG(1) of the Court Act. In Dring at [46] these well-recognised categories were said to include “national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality”.

26    Other cases have affirmed that well-recognised categories include trade secrets and commercially sensitive information: see Motorola at [7]-[8]; Deputy Commissioner of Taxation v State Grid International Australia Development Co Ltd [2022] FCA 577 at [16] (Thawley J). To these categories, the Full Court in Lee added at [97]:

A suppression order might be shown to be “necessary to prevent prejudice to the proper administration of justice”, for example, where it is made in respect of particular information which could be misused or cause significant harm, being information which is not germane to securing the objective of open justice. If the principle of open justice is not advanced by publication of particular information in the evidence (such as bank account details or passwords), the publication of which might reasonably be expected to facilitate wrongdoing, it might reasonably be concluded that a suppression order is “necessary to prevent prejudice to the proper administration of justice”. 

27    These categories, which are by no means closed, reflect, as Jagot J observed in Porter at [83], that s 37AE of the FCA Act recognises that the principle of open justice is a not the primary objective of the administration of justice.

2.    CONSIDERATION

28    I was satisfied that, at least at this point in time, the Merricks SPVs had established that it is necessary in order to prevent prejudice to the administration of justice for the Cbus Contract to be supressed and the subject of non-publication except in relation to the Plaintiffs and their external legal representatives, other than Pro-Invest. I was not satisfied that the Merricks SPVs had established that such orders should extend to the Plaintiffs, other than Pro-Invest. My reasons for so concluding are as follows.

29    In making an assessment of what is necessary to prevent prejudice to the proper administration of justice where what is involved is information that is commercially confidential, it is important to draw a distinction between information which is not public and information which is truly confidential: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [9] (Edelman J). The “mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis to suppress its publication”: Valve Corporation at [9]. The interest in confidential information “can be different if the disclosure of that information could ‘become a vehicle for advantaging or prejudicing trade rivals’”: Valve Corporation at [9], citing Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 at [148] (Katzmann J), Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23] (Greenwood J) and Yara Australia Pty Ltd v Burrup Holdings Limited (No 2) [2010] FCA 1304 at [25] (Barker J).

30    In the present case, on the evidence before me, I was satisfied that the terms of the Cbus Contract could be used by market participants as a vehicle for commercial advantage in the acquisition of the Remaining 50%. I accept that, as it presently stands, the purchase price contained in the Cbus Contract and the terms upon which Cbus Property has agreed to acquire the relevant interest are confidential and not known in the marketplace. I accept that knowledge of these terms might advantage prospective purchasers in respect of the acquisition of the Remaining 50%, to the commercial detriment of the FT Companies and the Merricks SPVs. I do not consider that such commercial detriment is, at this stage, mere inconvenience to the FT Companies in the marketplace, especially when the value that might be paid for the remaining interest will be integral to the completion of the development of the Halo Project and the payment of the substantial debts owing to the Merricks SPVs.

31    I was also satisfied that the orders should extend to Pro-Invest, even though it is a party to the proceedings as one of the Plaintiffs. That is so because Pro-Invest previously sought to acquire the 50% interest that Cbus Property now seeks to acquire and was involved in putting forward an alternative DOCA. On the evidence before me, I am satisfied that Pro-Invest is to be viewed as a potential market participant who may use the information contained in the Cbus Contract to its commercial advantage.

32    The same cannot be said in respect of the other Plaintiffs. They are litigants who have come before the Court seeking relief in relation to the DOCA. The evidence before me is that the Cbus Contract featured heavily in the assessment of the Administrators in proposing the DOCA, including in the report to creditors. Despite this, the terms of the Cbus Contract have not been disclosed to the Plaintiffs and they are unable to assess what was said by the Administrators and the basis upon which the DOCA was proposed. I was not prepared to determine whether the terms of the Cbus Contract (as opposed to the fact of that Contract) will be relevant to the determination of the claims to be advanced by the Plaintiffs in the substantive proceedings. Whilst the Merricks SPVs take a different view, Senior Counsel for the Plaintiffs submitted that the terms are relevant to the Plaintiffs’ case. Senior Counsel for the Plaintiffs made that submission after having had an opportunity to consider the terms of the Cbus Contract to which he had been given access.

33    When pressed to articulate the basis upon which the Court would supress information from being disclosed to litigants before the Court, Senior Counsel for the Merricks SPVs contended that the Plaintiffs were a class of persons (whether individually, together as a collective in part or whole, or together with other third parties) who were market participants and potential purchasers of the Remaining 50%. Senior Counsel for the Merricks SPVs submitted that the Plaintiffs should be viewed as “property investors”. I do not accept these submissions. They are not supported by the evidence before me.

34    The evidence before me included the affidavit of Mr Cuddihy, who is the solicitor for the Merricks SPVs (see [12] above). In his evidence, Mr Cuddihy set out the basis upon which Pro-Invest was to be regarded as a potential purchaser. However, his evidence as to the other Plaintiffs was as follows:

I am not aware of what relationships any of the other 21 plaintiffs might have with Proinvest Hotel or any other potential purchaser or investor of the Remaining 50%.

35    The characterisation or label given to the other 21 Plaintiffs as “property investors” is unhelpful. It is to be accepted that these Plaintiffs were the owners of strata and potentially other title in the Properties prior to the acquisition of the interests by FT Sydney. Given the nature of the buildings that previously occupied the Development Site, it may be readily inferred that the other 21 Plaintiffs were the owners of primarily commercial and/or retail spaces in those buildings. Some of these spaces may have been self-occupied, others may have been subject to leases, and some of the Plaintiffs may or not be the owners of multiple properties. None of this was addressed in the evidence. Even if one is to accept that one or more of the other 21 Plaintiffs were “property investors”, that is a far step removed from accepting that these Plaintiffs are potential purchasers of the Remaining 50%, the value of which is undoubtedly substantial.

36    The non-disclosure of information to litigants before the Court is no trivial matter. That is not to say that such orders are not made in some cases. There are occasions where, in litigation before this Court, information may not be freely disclosed as between trade rivals and instead different solutions are fashioned to protect the rival interests at play. In some cases, “confidentiality clubs” have been formed consisting of a small pool of representative plaintiffs or representatives of the parties (such as in-house Counsel or others) in order to protect the interests of trade rivals. In considering these solutions and whether they should be upheld or refused, the Court undertakes “a balancing exercise in which the competing considerations are the risk of inadvertent or accidental disclosure on the one hand, and the benefits of a party having access to relevant information so that appropriate advice can be given to the client and informed instructions received from the client, on the other”: see AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 at [10] (Besanko J), citing Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324 at [9] (Finkelstein J), referring to Warner-Lambert Co v Glaxo Laboratories Limited [1975] RPC 354 at 356 (Buckley LJ). There are a range factors relevant to the determination of such questions, which are presently unnecessary to canvass.

37    The difficulty in the present case for the Merricks SPVs is that there is no evidentiary basis for the assertion that the other 21 Plaintiffs could be regarded as persons who would undermine the economic interests associated with the potential sale of the Remaining 50%. Nor is there any evidentiary basis upon which any balancing exercise could be conducted.

38    Further, the Merricks SPVs gave little consideration to the fact that the Plaintiffs are parties to the proceedings and are entitled to receive legal advice from their external representatives in relation to documents such as the Cbus Contract. This is a consideration central to the proper administration of justice. These Plaintiffs are bound by implied undertakings, a breach of which has potentially serious consequences. This too is a consideration central to the proper administration of justice.

39    Senior Counsel for the Plaintiffs informed me that having reviewed the Cbus Contract, he had formed the view that he needs to be able to advise the Plaintiffs about certain matters by reference to the terms of the Cbus Contract. Given his experience in such matters, I have no reason to doubt the veracity of that submission. It is the type of candid exchange the Court expects. The predicament that Senior Counsel for the Plaintiffs confronted is the precise type of prejudice that is occasioned when there is a conflict of duties owed by practitioners to the Court and to their clients. If anything, it reinforces that the making of the orders sought by the Merricks SPVs has the potential to prejudice the proper administration of justice, as opposed to preventing prejudice from arising.

40    As noted above, Senior Counsel for the Merricks SPVs contended that, in the event that the Plaintiffs’ external legal representatives needed to obtain instructions from the other Plaintiffs (as opposed to from Mr Chalk), they could write to the solicitors for the Merricks SPVs to explain that need and, if agreement could not be reached, approach the Court to vary the orders. I did not accept that this was an appropriate way to deal with the position. The proposal places the Plaintiffs’ external legal representatives in the invidious position of having to explain to another party why they need to discuss certain matters with their clients, and, to do so in the circumstances of an expedited hearing. The proposal inverts the proper way that s 37AF of the FCA Act is to operate. The Court is not to make an order simply to preserve a hypothetical commercial position of one party and then invite variations from the other party. The onus from the outset remains on the applicant to establish the necessity of such orders, and it is a heavy onus. That onus has to be addressed to the interests of the proper administration of justice in respect of which the supposed commercial detriment of one or more parties is a relevant consideration, but another relevant consideration is the right of litigants before the Court to examine potentially relevant documents and receive legal advice about them.

41    Based on the above, I refused to make orders as sought by the Merricks SPVs and instead decided to make the orders that I have set out in these reasons. In order to ensure that there is no inconsistent operation between the FCA Act and the Rules, I have also made an order that any application made by any person for leave to inspect the Cbus Contract made under r 2.32(4) of the Rules, or otherwise, be referred to a judge of this Court.

42    Three further observations need to be made.

43    First, I have made the orders that I have on an urgent basis and have not heard from any other interested parties, including any representatives of media organisations, who, on the evidence before me, have taken an interest in the subject matter of the proceedings. Nothing that I have said is intended to preclude any application made by any third party seeking to agitate whether the orders I have made should be varied or set aside.

44    Second, I have made the orders that I have on the basis of the evidence as to the marketplace and the prospect of harm being occasioned in relation to the potential sale of the Remaining 50%. I received no evidence, and was not able to be assisted by the respective parties, as to whether information relating to the purchase price or the terms of the Cbus Contract might otherwise become publicly available, for example, if the purchase price may become known from searches conducted with the Land Titles Office. Nor can anything at this stage be said about the conduct of any negotiations that may occur in relation to the sale of the Remaining 50%. Whether the vendor in the sale of such properties may be required to disclose the value and conditions of the Cbus Property transaction (by the application of statutory and other norms directed to guarding against misleading and deceptive conduct) is a matter that I have not been asked to decide.

45    Third, ordinarily it would be expected that, consistent with s 37AJ of the FCA Act, any orders made under s 37AF should state their duration. The proceedings are to be listed for an expedited final hearing and that is to occur imminently. In those circumstances, and as the matter is to be imminently back before the Court, I will make my orders until further order of the Court, but have raised with Counsel for all parties that the question of the duration of the orders must be raised with the Court before these proceedings are finalised.

3.    DISPOSITION

46    It is for these reasons that I made the orders and otherwise dismissed the Interlocutory Application. I will reserve the question of costs.

Associate:

Dated:    4 June 2026

SCHEDULE OF PARTIES