Banic Holdings v Papandrea Partners - [2023] ACTMC 56

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Banic Holdings v Papandrea Partners
Citation:	[2023] ACTMC 56
Hearing Date:	6 June 2023, 11 September 2023
Decision Date:	22 November 2023
Before:	Special Magistrate Richter
Decision:	Judgment for the defendant. Claim dismissed.
Catchwords:	CIVIL PROCEDURE – r 1604 of the Court Procedures Rules 2006 (ACT) – Application to return property – Requirement for specificity in good sought – not an application for discovery – similarity to procedure on subpoena application
Legislation Cited:	Court Procedures Rules 2016 (ACT) r 1604 Uniform Civil Procedure Rules 2015 (NSW) r 16.5
Cases Cited:	Wornes v Freewater Australia Pty Ltd[2022] ACTSC 147 Young v Queensland Trustees Ltd (1956) 99 CLR 560
Texts Cited:	New South Wales Civil Procedure Handbook
Parties:	Banic Holdings Pty Ltd (ACN 612 277 648) (First Plaintiff) National Cleaning Services (ACN 104 430 926) (Second Plaintiff) Raska Group Pty Ltd (ACN 133 550 937) (Third Plaintiff) Papandrea Partners Pty Ltd (ACN 133 550 937) (First Defendant) Michael Papandrea (Second Defendant)
Representation:	Counsel Ms Costin (Plaintiffs) Mr Gray (Defendants)
Solicitors Sneddon Hall & Gallop (Plaintiffs) Kamy Saeedi Law (Defendants)
File Number:	CS 100 of 2022

SPECIAL MAGISTRATE RICHTER:

Introduction

1․The plaintiffs seek an order from this court that the defendants return to them a series of documents set out in schedule 1 to the Originating Claim.
2․The order sought is an order under r 1604 of the Court Procedure Rules 2006 (ACT) (‘CPR’):
Relief claimed
(a)An order, pursuant to paragraph 2(a) of r 1604 of the Court Procedures Rules 2006 (ACT), that the defendants return the goods specified in schedule 1 to this originating claim to the plaintiffs.
(b)An order pursuant to paragraph 5 of r 1604 of the Court Procedures Rules 2006 (ACT), that the defendants return the goods specified in schedule 1 to this originating claim to the plaintiffs without the option of the defendants retaining the goods and paying their value.

The legislation

COURT PROCEDURES RULES 2006 - r 1604
Judgments—detention of goods
(1)This rule applies to a proceeding in relation to the detention of goods.
(2)The court may give judgment for the plaintiff against the defendant, in accordance with the plaintiff's claim for relief, for either—
(a)the return of the goods to the plaintiff, or the retention of the goods by the defendant and payment to the plaintiff of the value of the goods; or
(b)payment to the plaintiff of the value of the goods.

(3)If the court gives judgment for the return of goods, it may state a date before which the return must take place.
(4)If the court gives judgment for the return of goods, but the goods are subsequently damaged, destroyed or otherwise made unavailable for return, the court may, on the plaintiff's application, order the defendant to pay the value of the goods to the plaintiff.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(5)If the court gives judgment under subrule (2) (a), and…

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.

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Details

Case: [2023] ACTMC 56
Decision Date: 22 November 2023

CaseChat Overview and Summary

Banic Holdings filed a claim against Papandrea Partners seeking the return of property under rule 1604 of the Court Procedures Rules 2006 (ACT). The defendant objected to the claim on the basis that it was not specific enough. The Federal Circuit Court was required to determine whether the plaintiff's application was specific enough to allow the return of property and whether the court had the power to order the return of property in these circumstances.

The court held that the plaintiff's application was not specific enough as it did not include enough detail to enable the defendant to ascertain what property was being sought. The court held that this was not an application for discovery of documents, but rather an application for the return of property. The court held that this was similar to the procedure for a subpoena application, in that the application must be specific enough to enable the respondent to comply with it. The court held that the plaintiff's application did not meet this requirement and dismissed the claim.

The court dismissed the plaintiff's claim and ordered that the defendant pay the plaintiff's costs of the application.

Orders

Orders of the court

Judgment for the defendant. Claim dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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