Austress Freyssinet v Kowalski - [2007] NSWSC 1105

CITATION: Austress Freyssinet v Kowalski [2007] NSWSC 1105

HEARING DATE(S): 2 October 2007

JUDGMENT DATE :
5 October 2007

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Orders for examination and production of documents, and for plaintiffs' costs

CATCHWORDS: PRACTICE AND PROCEDURE - order for examination and production of documents under s 108 Civil Procedure Act - whether s 108 permits orders in aid of enforcement of an injunction - discretionary considerations

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) s 108
Uniform Civil Procedure Rules Pt 38

CASES CITED: Austress-Freyssinet Pty Ltd v Kowalski [2007] NSWSC 399
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Martinek v Evans (2004) 211 ALR 651
McCormack v National Australia Bank Ltd (1992) 35 FCR 303
Mullins v Southern Goldfields Ltd (unreported, Full Court of the Supreme Court of Western Australia, Malcolm CJ, Wallace and Rowland JJ, 24 April 1990, BC 9001368)
Republic of Costa Rica v Strousberg (1880) 16 ChD 8

PARTIES: Austress Freyssinet Pty Ltd (P1/A)
Austress - PSC Design Pty Ltd (P2/A)
Freyssinet SAS (P3/A)
Immer (No.141) Pty Ltd (P4/A)
Andrew Anthony Kowalski (D/R)

FILE NUMBER(S): SC 3164/06

COUNSEL: M A Izzo (P/A)
S R Meehan (D/R)

SOLICITORS: Mallesons Stephen Jaques (P/A)
Harris Freidman Hyde Page (D/R)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

AUSTIN J

FRIDAY 5 OCTOBER 2007

3164/06 AUSTRESS FREYSSINET PTY LTD & 3 ORS V ANDREW ANTHONY KOWALSKI

JUDGMENT

1 HIS HONOUR: By an amended notice of motion filed in court on 27 September 2007, the plaintiffs seek relief of the following kinds:

Civil Procedure Act

Application for examination under s 108

2 The first plaintiff ("Austress") is a specialist construction contractor, with particular expertise in the pre-stressing and pre-tension of concrete, carrying on business in Australia and parts of Asia. It holds 100% of the voting shares in the second plaintiff, Austress-PSC Design. The third plaintiff ("Freyssinet"), a French corporation, holds 20%, and the fourth plaintiff ("Immer") holds 80%, of the voting shares in Austress. Freyssinet owns 75% of the voting shares and 68.75% of the ordinary shares in Immer, and the defendant owns the remaining 25% of the voting shares and 31.25% of the ordinary shares. On about 24 March 2005 Freyssinet and the defendant entered into a shareholders' agreement concerning their respective shareholdings in Immer and the governance of Immer and Austress. The defendant was also until 2 December 2005 a director of Austress and Austress-PSC Design and was employed as the managing director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Austress Freyssinet v Kowalski and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 1105
Decision Date: 5 October 2007

CaseChat Overview and Summary

The case of Austress Freyssinet v Kowalski involved a dispute between two parties regarding an injunction and the enforcement of that injunction through orders for examination and production of documents. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce an injunction against the defendant by way of orders under section 108 of the Civil Procedure Act. The plaintiff argued that the defendant had failed to comply with the terms of the injunction and sought orders to compel the defendant to produce documents that would assist in enforcing the injunction.

The central legal issue before the court was whether section 108 of the Civil Procedure Act permits orders in aid of enforcement of an injunction. The court had to determine whether the discretionary power to order examination and production of documents under section 108 could be exercised to enforce an injunction. The court considered the language of section 108 and the purpose of the provision, as well as the discretionary considerations that must be taken into account when making such an order.

The court held that section 108 of the Civil Procedure Act does permit orders in aid of enforcement of an injunction. The court found that the discretionary considerations to be taken into account when making such an order include the need for the documents to be relevant to the enforcement of the injunction, the potential burden on the party required to produce the documents, and the likelihood that the documents will assist in enforcing the injunction. The court also considered the importance of the injunction and the potential consequences of non-compliance.

In light of these considerations, the court made an order for the defendant to produce the relevant documents to the plaintiff. The court found that the plaintiff had demonstrated a sufficient need for the documents and that the burden on the defendant was not excessive. The court concluded that the order was necessary to enforce the injunction and ensure that the terms of the injunction were complied with.

Orders