Energy World Corporation Limited v Standard Chartered Private Equity (Singapore) Pte Ltd

[2020] NSWSC 1348

Supreme Court

New South Wales

Medium Neutral Citation:	Energy World Corporation Limited v Standard Chartered Private Equity (Singapore) Pte Ltd [2020] NSWSC 1348
Hearing dates:	On the papers
Date of orders:	2 October 2020
Decision date:	02 October 2020
Jurisdiction:	Equity - Commercial List
Before:	Stevenson J
Decision:	Orders to be made to the effect of the Second Defendant’s notice of motion
Catchwords:	CIVIL PROCEDURE – notice to produce – leave sought to produce redacted version of Agreement – whether redacted information relevant
Category:	Procedural and other rulings
Parties:	Energy World Corporation Ltd (First Plaintiff) Energy World International Ltd (Second Plaintiff) Slipform Engineering International (H.K) Ltd (Third Plaintiff) P T Slipform Indonesia (Fourth Plaintiff) Standard Chartered Private Equity (Singapore) Pte Ltd (First Defendant) Augusta Investments I Pte Ltd (Second Defendant)
Representation:	Counsel: J C Giles SC with R A Jedrzejczyk (Plaintiffs) F Roughley (First Defendant) N Kidd SC (Second Defendant) Solicitors: Clayton Utz (Plaintiffs) Allen & Overy (First Defendant) Allens (Second Defendant)
File Number(s):	2020/28214

Judgment

1. In 2018 the first plaintiff, Energy World Corporation Ltd, issued USD50m notes to the first defendant, Standard Chartered Private Equity (Singapore) Pte Ltd.

2. Thereafter, Standard Chartered purported to transfer the Notes to the second defendant, Augusta Investments I Pte Ltd.

3. Energy World contends that Standard Chartered was obliged to give the second to fourth plaintiffs a right of first refusal to purchase the Notes. That is one of the issues in dispute in these proceedings. It depends on whether transfer from Standard Chartered to Augusta was a “permitted transfer” for the purposes of Condition 3.1(e) of the Notes. If the transfer was a “permitted transfer” no right of first refusal arose.

4. Assuming that the transfer was not a “permitted transfer” an issue arises in the proceedings as to the price at which Standard Chartered was obliged to offer the Notes to the second to fourth plaintiffs.

5. This also turns on the proper construction of Condition 3.1(e). The plaintiffs contend that, on the proper construction of that condition, the price at which Standard Chartered is obliged to offer the Notes to the first to fourth plaintiffs, is the price at which it has agreed to sell the Notes to Augusta.

6. On the other hand, Standard Chartered and Augusta contend that that price is to be set by reference to the “aggregate principal amount outstanding” under the Note, an expression that appears in Condition 3.1(e).

7. Energy World has served a notice to produce on Augusta requiring production of the “Transaction Agreement” between Standard Chartered and Augusta pursuant to which the Notes were sold.

8. By its notice of motion filed 10 September 2020, August seeks leave to produce a redacted version of the Transaction Agreement.

9. The parties have largely agreed to arrangements between themselves to manage the confidentiality of information in the Transaction Agreement.

10. The narrow issue that now divides the parties is whether Augusta should be permitted to redact the price ascribed to the Notes in the Transaction Agreement.

11. I cannot see why it is relevant for the plaintiffs to know, now, the price at which Standard Chartered has purported to sell the Notes to Augusta.

12. If the plaintiffs are correct that:

1. the transfer was not a “permitted transfer” and that, accordingly, Standard Chartered must give the second to fourth plaintiffs the right of first refusal to purchase the Notes; and

2. the price at which the Notes should be so offered to the second to fourth plaintiffs is the price at which Standard Chartered has agreed to sell the notes to Augusta,

it will no doubt then be necessary for the price to be revealed.

13. However, at the moment, I cannot see why it is relevant for the plaintiffs to know what that price is.

14. For that reason, I do not think it is necessary for me to examine the basis upon which Augusta contends that the prices are commercially sensitive.

15. I propose to make orders to the effect sought by Augusta.

16. The parties should confer and agree on the precise orders needed to give effect to these reasons.

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