Selected cases

Federal Court of Australia · [2026] FCA 701

Bunter v Hardy, in the matter of FT Sydney

A Federal Court commercial-confidentiality case about a property DOCA dispute, a sensitive sale contract and limits on suppression orders.

Federal Court of Australia4 June 2026

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Quick read

  • Commercial confidentiality in litigation needs evidence, precision and a real link to the administration of justice.
  • A Federal Court commercial-confidentiality case about a property DOCA dispute, a sensitive sale contract and limits on suppression orders.

Use this to check

  • A confidentiality clause is relevant, but it is not enough by itself.
  • Suppression orders require evidence of real prejudice, not just commercial discomfort.
  • Courts treat party access differently from public access.

Decision snapshot

  1. What happened

    • FT Sydney Pty Ltd was involved in the Halo Project, a high-rise hybrid commercial tower at a Sydney site made up of 74 amalgamated property titles around Pitt Street and Hunter Street.
    • Former property owners, described as Deferred Vendors, had sold interests to FT Sydney with part of the price deferred until completion of the project.
    • After the FT Companies entered voluntary administration, the administrators supported a deed of company arrangement that was approved by senior secured lenders but opposed by the Deferred Vendors.
    • The Deferred Vendors began urgent proceedings seeking to terminate or vary the DOCA.

  2. What the court had to decide

    • The Federal Court had to decide whether suppression and non-publication orders under Part VAA of the Federal Court of Australia Act were necessary to prevent prejudice to the proper administration of justice.
    • The dispute concerned whether a commercially sensitive sale contract should be withheld from the public, from parties to the proceeding, or from particular parties who might be market participants.

  3. What the court decided

    • The Court made narrower orders than those sought.
    • It prohibited publication or disclosure of the Cbus contract generally, allowed access for the Court, the plaintiffs' legal representatives and most plaintiffs, and excluded one plaintiff, Pro-Invest, from access because of its potential market-participant position.
    • The broader attempt to restrict access from the other plaintiffs was rejected.

Practical impact

Practical read

  • Commercial confidentiality in litigation needs evidence, precision and a real link to the administration of justice.
  • A party cannot simply point to a confidential contract and expect the other side to be kept from seeing material they need for instructions.

Useful next steps

  • A confidentiality clause is relevant, but it is not enough by itself.
  • Suppression orders require evidence of real prejudice, not just commercial discomfort.
  • Courts treat party access differently from public access.
  • Confidentiality clubs and targeted access limits may work better than blanket restrictions.
  • Administrators and lenders should plan document-access protocols before urgent DOCA disputes.

Practical read

This case is a sharp reminder that confidentiality clauses do not automatically control what happens in court. The Cbus contract contained commercially sensitive sale terms, and the secured lenders had a real concern that disclosure could affect the market for the remaining 50 percent interest. The Court accepted there was enough evidence to protect the contract from wider publication.

But the Court drew a line when the lenders tried to keep most plaintiffs themselves from seeing the contract. Those plaintiffs were parties to urgent litigation about the DOCA, and their lawyers said they needed client instructions about the contract terms. The Court was not prepared to treat most of the plaintiffs as potential market participants without evidence.

One plaintiff, Pro-Invest, was treated differently because there was evidence it had previously sought to acquire the relevant interest and could be a market participant.

For businesses, the lesson is practical. If a confidential contract may become evidence, think about litigation access early. A court can protect trade-sensitive information, but the order has to be targeted. Evidence should explain the specific commercial harm, who should be restricted, why ordinary implied undertakings are not enough and how the other side can still get legal advice and give instructions.

Checks to run

Key points

  • Identify exactly which contract terms are commercially sensitive.
  • Prepare evidence about the market harm that disclosure would cause.
  • Separate public suppression from party-access restrictions.
  • Consider a confidentiality club for competitors or likely bidders.
  • Keep DOCA reports, sale documents and creditor communications aligned.

Key takeaways

  • A confidentiality clause is relevant, but it is not enough by itself.
  • Suppression orders require evidence of real prejudice, not just commercial discomfort.
  • Courts treat party access differently from public access.
  • Confidentiality clubs and targeted access limits may work better than blanket restrictions.
  • Administrators and lenders should plan document-access protocols before urgent DOCA disputes.

Related topics

Contracts & CommercialInsolvency & RestructuringCommercial Leases & Property

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