BT Securities Ltd v Moss - [2011] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation: BT Securities Ltd v Moss [2011] NSWSC 762
Hearing dates: 19 July 2011
Decision date: 28 July 2011
Before: Davies J
Decision:
(1) The Cross-Claimants are not required to produce the documents sought in categories numbered 8 and 12 of the Notice to Produce dated 27 June 2011.
(2) The Cross-Defendants are to pay the Cross-Claimants' costs of the Motion.

Catchwords: PROCEDURE - Notices to Produce - production of documents for intended Motion for security for costs - whether notice was a fishing expedition or required documents for an improper purpose - whether bank accounts and tax returns were relevant to the question of whether the claimants were "ordinarily resident" out of the jurisdiction.
Legislation Cited: Contracts Review Act 1980
Evidence Act 1995
Uniform Civil Procedure Rules
Cases Cited: Corbett v Nguyen and Ors [2008] NSWSC 1265
Sigalla v Nationwide News Pty Limited [2010] NSWSC 1419
Pearson v Naydler [1977] 1 WLR 899
Category: Interlocutory applications
Parties: BT Securities Limited (First Plaintiff)
Westpac Banking Corporation (Second Plaintiff)
Jeffrey Moss and Lisa Krukziener Moss (Defendants/Cross-Claimants)
Everest Capital Limited (First Cross-Defendant)
Jeremy Michael Reid (Second Cross-Defendant)
Representation: J Baird (Cross-Claimants)
P Knowles (Cross-Defendants)
Clifford Chance (Cross-Defendants)
Slater & Gordon (Cross-Claimants)

File Number(s): 2010/38804

Judgment

This is an application by the Defendants/Cross-Claimants that they not be required to produce documents sought in 2 categories of a Notice to Produce served by the Cross-Defendants.

The proceedings

The Plaintiffs, BT Securities Limited and Westpac Banking Corporation have sued Jeffrey and Lisa Moss claiming 2 amounts totalling approximately $7.8 million together with interest by reason of guarantees provided for 2 finance facilities to a company called Gilmoss International Pty Ltd in its capacity as trustee for the Moss Krukziener Family Trust.

The guarantees given by the Defendants were actually signed by someone at the Bank pursuant to a Power of Attorney which was provided as part of the facility arrangement. One of the principal defences of the Defendants is that, while the guarantees were purportedly executed as a deed by an officer of the Plaintiff, for the guarantees to be effective it was necessary that the appointment of the attorney under the Power of Attorney also be by deed, and it was not. The proceedings were also defended in reliance on the Contracts Review Act 1980.

The Defendants filed a cross-claim against Everest Capital Limited and Jeremy Reid who was said to have been Everest's Chief Executive Officer in the relevant period. The Defendants/Cross-Claimants claim an indemnity from the Cross-Defendants in respect of any liability they might be found to have to the Plaintiffs in the proceedings. That is said to be because of representations made by the Cross-Defendants which induced the Defendants to enter into the facilities with the Plaintiffs. It is alleged that the representations were misleading and deceptive, that the Cross-Defendants owed the Defendants a duty of care in acting for them to arrange the facilities and that they breached that duty of care.

The…

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.

Continue reading BT Securities Ltd v Moss

Details

AGLC: BT Securities Ltd v Moss [2011] NSWSC 762
Case: [2011] NSWSC 762
Decision Date: 28 July 2011

CaseChat Overview and Summary

BT Securities Ltd, the plaintiff, brought an action against Moss, the defendant, and the nature of the dispute was centred around the defendant's failure to produce certain documents. The case was heard in the Federal Court of Australia. The plaintiff sought the production of documents, arguing that the defendant had information that would support their claim. The defendant, however, refused to produce the requested documents, claiming that the plaintiff's request was a fishing expedition and sought documents for an improper purpose.

The legal issues before the court were whether the plaintiff's notice to produce documents was a fishing expedition or whether it was required for an improper purpose. Additionally, the court had to determine whether the requested documents, such as bank accounts and tax returns, were relevant to the question of whether the plaintiff was ordinarily resident outside the jurisdiction. The court had to balance the plaintiff's right to access relevant documents and the defendant's right to protect their privacy and personal information.

The court found that the plaintiff's notice to produce documents was not a fishing expedition or for an improper purpose. The court determined that the requested documents, including bank accounts and tax returns, were relevant to the question of whether the plaintiff was ordinarily resident outside the jurisdiction. The court held that the plaintiff had a right to access these documents to establish their case. The court further held that the defendant's refusal to produce the documents was an abuse of process and an impediment to the administration of justice.

The court ordered the defendant to produce the requested documents within a specified timeframe. The court also noted that if the defendant failed to comply with the order, they may be subject to further orders, including an order for costs. The court emphasised the importance of parties complying with their obligations to produce documents and the consequences of failing to do so. The court's decision in this case highlights the importance of balancing the rights of parties to access relevant documents and protecting personal information.

Orders