Whilst I understand the reasoning for your view that this decision somehow points to what the final outcome may be in this matter, I would exercise caution in getting too carried away at this point.
The judges reasons for splitting the trial is primarily to give certainty on the liability issue as soon as possible for the benefit of the shareholders of the listed entities and so that the reputational issue for the DJC defendants can be determined quickly. The desire to have those matters resolved quickly is not necessarily indicative that they will be resolved quickly in the favour of SPX and the DJC defendants.
Also, the fact that costs were awarded against VMC on this application is not an indication of the judge being annoyed with VMC for anything done thus far, rather the usual rule is that 'costs follow the event' unless there is a good reason to depart from that rule. That means that when one party makes an interlocutory application and it is opposed and is resolved by a hearing, then the successful party is entitled to recover their costs of the application. There does not appear to be any comment in the decision about the costs being awarded on an indemnity basis, which if indemnity costs were awarded would be an indication that in the eyes of the judge VMC should not have opposed the application as the application was always going to be successful (i.e. it would mean VMC acted unreasonably), however, there is no mention of that here.
The reference to VMC having outlined its claim in the ASX announcement, goes on to adopt VMC's summary of the issues from that announcement, but does not criticise VMC for having done so. It is likely that the reference to the claim being outlined in the announcement is because it succinctly summarises VMC's case and so the judge doesn't have to do so himself from analysing the pleadings in the statement of claim, which is a much more detailed document.
What I found interesting though was that SPX and the DJC defendants are running as part of their defence, that VMC ought be denied relief due to laches or acquiesence. For those that aren't familiar with the terms:
- Laches is an equitable defence to a claim that is brought within time under the Limitations Act, but due to the delay in bringing the claim the defendant has been prejudiced and it would therefore be unjust to allow the plaintiff to obtain the relief sought.
- Acquiesence can be raised as a defence to defeat proceedings for a breach of trust where a beneficiary knowingly stands by in such a manner as to induce the trustee to commit the act to his or her prejudice in the belief that the beneficiary consents to its being committed.
Therefore SPX will need to demonstrate that it has (a) been prejudiced by the delay and it is unjust to grant the relief of a declaration of constructive trust; or (b) that VMC knew of the alleged breach of trust that gave rise to the current claim from a much earlier time than October 2019, such that VMC can be said to have acquiesced to the SPX's continued ownership and development of PW. That means not only does VMC need to have been aware of SPX acquiring PW, but they also needed to be aware of circumstances under which it was acquired, namely the alleged breach of trust by the DJC defendants and SPX that is the subject of the claim, to be said to have acquiesced. So the timing of when VMC became aware of the alleged conduct is likely to be critical to this aspect of the SPX defence (noting that SPX's main defence is that the breach did not happen in the first place).
(20min delay)