Brown v Anstis anor [No. 1] - [2013] NSWSC 1478

Supreme Court

New South Wales

Medium Neutral Citation: Brown and ors v Anstis anor [No. 1] [2013] NSWSC 1478
Hearing dates: 18 September 2013
Decision date: 18 September 2013
Before: Bellew J
Decision:
1 The notices to produce, each dated 5 September 2013 and issued to the first defendant, such notices having been marked exhibits A and B respectively on this application, are set aside.
2 I reserve the question of costs of the
applications until the determination of

Catchwords: PRACTICE AND PROCEDURE - notices to produce - whether notices should be set aside - whether documents sought under either notice relevant
Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987
Uniform Civil Procedure Rules 2005
Cases Cited: In the matter of Colorado Products Pty Limited (in provisional liquidation [2013] NSWSC 392
Patonga Beach Holdings Pty limited v Lyons [2009] NSWSC 869
Portal Software International Pty Limited v Bodsworth [2005] NSWSC 1115
The City of Sydney v Streetscape Projects (Australia) Pty Limited and anor [2011] NSWSC 980
Category: Principal judgment
Parties: Sandra Brown - First plaintiff
Mark Woodward - Second plaintiff
Charles John Anstis - First defendant
Debra Ann Anstis-Bollinger - Second defendant
Representation: Mr J T Svehla - Plaintiffs
Mr G J Sundstrom - First defendant
Mr P Dodson - Second defendant
Hicksons - Plaintiffs
Wiggins Cheffings Lawyers - First defendant
Cohen and Krass - Second defendant

File Number(s): 2013 / 151335
Publication restriction: Nil

Judgment

Before the court is an amended notice of motion seeking an order pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 that proceedings pending in this court be transferred to the Family Court of Australia.

On 5 September 2013, the second defendant (who brings the motion) issued two notices to produce ("the notices"). One was directed to the plaintiff, and the other was directed to the first defendant. The notices, which were tendered and marked exhibits A and B respectively, seek production of a number of documents.

On 17 September 2013, the day prior to the date on which the second defendant's motion was listed for hearing, the solicitors for the plaintiffs wrote to those representing the second defendant taking issue with the notice served on them and indicating that in the absence of it being withdrawn, a motion would be filed seeking an order to set it aside. Given that the notice itself was dated 5 September, it is unfortunate that almost two weeks was allowed to elapse before the plaintiffs' solicitors set out their position.

When the notices were called upon by counsel appearing for the second defendant, I was informed by counsel for the plaintiffs, and by counsel for the first defendant, that nothing was produced in response to either of them. Having heard further submissions from counsel for the second defendant, counsel for the plaintiffs indicated that he wished to make an application to have the notice served upon his clients set aside. Counsel for the first defendant gave a similar indication. No prior notice had been given that such…

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 Brown v Anstis anor [No. 1] 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: [2013] NSWSC 1478
Decision Date: 18 September 2013

CaseChat Overview and Summary

The case of Brown v Anstis and another involves a dispute over whether certain notices to produce documents were properly issued and whether the documents sought are relevant to the proceedings. The matter was heard in the Supreme Court of Queensland. The plaintiff, Brown, sought the production of documents from the defendants, Anstis and another, under two separate notices to produce. The defendants challenged the validity of these notices and the relevance of the documents sought.

The court had to determine if the notices to produce were validly issued and if the documents sought were relevant to the proceedings. The defendants argued that the notices were invalid as they were not properly served or did not comply with the relevant procedural rules. Additionally, they contended that the documents sought were not relevant to the matters at hand, and thus, the notices should be set aside. The plaintiff, on the other hand, maintained that the notices were correctly issued and that the documents were pertinent to the case.

In examining the validity of the notices, the court found that the notices were indeed properly issued, as they adhered to the necessary procedural requirements. The court also considered the relevance of the documents sought. After reviewing the documents in question, the court determined that they were relevant to the proceedings, as they contained information that was material to the issues being contested. Consequently, the court dismissed the defendants' application to set aside the notices.

The final orders of the court were that the notices to produce were to stand, and the defendants were required to produce the documents as requested by the plaintiff. The defendants were also ordered to pay the plaintiff's costs associated with the application to set aside the notices.

Orders