Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd

[2015] NSWSC 355

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd [2015] NSWSC 355

Hearing dates:

19 and 26 March 2015

Date of orders:

01 April 2015

Decision date:

01 April 2015

Jurisdiction:

Equity Division

Before:

Sackar J

Decision:

See [4]-[5]

Catchwords:

PRACTICE AND PROCEDURE – application to set aside notice to produce – relevance

Legislation Cited:

n/a

Cases Cited:

n/a

Texts Cited:

n/a

Category:

Procedural and other rulings

Parties:

Australian Securities and Investments Commission - plaintiff
Park Trent Properties Group Pty Ltd – defendant

Representation:

Counsel:

Mr T Prince – plaintiff
Mr J Hewitt – defendant

Solicitors:

Mr Mark Pangbourne, solicitor for the Australian Securities and Investments Commission – plaintiff
HWL Ebsworth – defendant

File Number(s):

2014/331307

Publication restriction:

n/a

Judgment

1. These reasons are supplementary to those expressed in Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd [2015] NSWSC 342. Terms defined in that judgment bear the same meaning in these reasons. Following delivery of judgment on 31 March 2015 the parties contacted my associate, quite appropriately, to point out that I did not deal expressly with the relevance objection relating to [5] of the notice to produce. Relevance was the only objection made to production of the documents sought at [5], which provides as follows:

5. All documents which record the communications between Park Trent entities and its clients referred to at paragraph 35(a) of McGregor #1.

2. The relevant paragraph of McGregor #1 is in the following terms:

35. I am informed by Ms Johnston and verily believe that if the Court were to order that Park Trent issue the notice set out at Schedule “A’ of ASIC’s originating process (ASIC Notice) on the terms of the orders sought by ASIC, then for the reasons set out below Park Trent, other businesses and possibly its clients are likely to suffer loss and damage.

(a) Park Trent had already received numerous enquiries from clients when the proceedings were commenced by ASIC and following the publications of its media release. These clients were concerned regarding properties they had bought.

3. PTPG’s position is that these documents have no apparent relevance because the purpose of [35](a) of McGregor #1 was to address potential prejudice to PTPG if the interlocutory orders sought by ASIC were granted. ASIC submits that PTPG’s communications with its clients regarding its activities are directly relevant to both the question of compliance and the issue of the final relief sought. ASIC also says that communications between PTPG and its clients are relevant to the way PTPG’s business was and is conducted and the advice it provides to them regarding SMSFs.

4. It seems to me that the communications from clients said to have been received by PTPG, especially where those comments or questions relate to the media release, will go, arguably, to the effectives of the compliance regime and/or the extent to which final relief as sought by ASIC may be necessary. The way in which PTPG has responded, both in terms of the compliance regime and reviews, but also directly to these enquiries, appears to me at least to have relevance to the issues the Court will be called upon to determine.

5. Consequently, I consider that [5] should stand and PTPG should produce the documents sought.

Amendments

01 April 2015 - remove text first line