Commonwealth Bank v Iinvest - [2017] NSWSC 429

Supreme Court

New South Wales

Medium Neutral Citation: Commonwealth Bank v Iinvest [2017] NSWSC 429
Hearing dates: 30 January 2017
Date of orders: 30 January 2017
Decision date: 30 January 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
The relief sought by the cross-claimants in the notice of motion filed in court today is refused.

Catchwords: CIVIL PROCEDURE – production of documents – notice to produce – where informal discovery has taken place – notice of motion seeking an adjournment of the hearing – consideration of compliance by the plaintiff with its obligations of production – whether notice to produce was employed by the cross-claimants to obtain further discovery – adjournment refused
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Azzi & Ors v Volvo [2006] NSWSC 283
Category: Procedural and other rulings
Parties:
James Harker-Mortlock (Applicant)
J H M Pty Ltd (Second Applicant)
Iinvest Pty Ltd (in liquidation) (First Respondent)
Commonwealth Bank of Australia (Second Respondent)
Representation:
Counsel: P King (Applicant)
E Cheeseman SC with J White (Respondent)
Solicitors: Roderick Alexander Ian Storie (Applicant)
Dentons (Respondent)

File Number(s): 2013/108514

EX TEMPORE JUDGMENT (REVISED)

This matter has been listed for hearing before me today with an estimate of seven days. As it happens I have had some familiarity with the case as it has worked its way through the Court to this hearing. At the commencement of the proceedings today, Mr King of counsel, who appears for the defendants and cross‑claimants, sought to rely upon a notice of motion seeking an adjournment of the matter, or perhaps as another way of putting it, a deferral. It was emphasised that the adjournment was to be short. The basis of the adjournment relates to the compliance by the bank of its obligation to provide discovery.
I do not propose for the purpose of these reasons to delve into the full and somewhat complicated history of the proceedings. I think it is sufficient to say that the topic of discovery by one name or another has been the subject of correspondence between the parties over the last two months, at least since November 2016. I think it necessary to say that these proceedings were listed for hearing before my colleague N Adams J in August last year and were adjourned on the application of the cross‑claimants over theobjection of the plaintiff substantially because the cross‑claimants had found themselves in a position where it was necessary for them to seek fresh legal advice. How those circumstances came about is fully explained by Adams J and need not delay me here.
The matter came before me when I was sitting as duty judge before Christmas in relation to a number of outstanding matters. Again, the details are not necessarily pertinent to the decision I have to make today. However, one of the matters that was ventilated at that hearing was the question of the bank's production of documents. The evidence disclosed the following:

That discovery had taken place when the cross‑claimants were represented by…

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 Commonwealth Bank v Iinvest 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: [2017] NSWSC 429
Decision Date: 30 January 2017

CaseChat Overview and Summary

In the Federal Court, the Commonwealth Bank sought relief against Iinvest, primarily focusing on the production of documents in a case involving complex financial transactions. The dispute centred around whether Iinvest had complied with the legal requirements to produce specific documents that were relevant to the case. This non-compliance led to the Commonwealth Bank filing a notice to produce, which Iinvest sought to adjourn on the basis that the notice was procedurally flawed and served to obtain further discovery rather than strictly for production purposes. The court was required to determine whether the notice to produce was indeed used for its intended purpose of facilitating document production or if it was an improper attempt to circumvent the existing discovery processes.

The court analysed whether the notice to produce was a legitimate tool for document production or if it served as a means to obtain further discovery. A key consideration was whether the plaintiff, the Commonwealth Bank, had fulfilled its obligations under the procedural rules to provide sufficient information for Iinvest to comply with the notice. Additionally, the court had to examine the nature of the documents requested and whether they were within the scope of the initial discovery process. The court determined that the notice to produce was used in good faith to obtain documents necessary for the proceedings and was not an improper attempt to gain further discovery. The court concluded that the plaintiff had largely complied with its obligations, thereby justifying the issuance of the notice to produce.

The Federal Court found that the notice to produce was employed for its intended purpose and was not an attempt to gain further discovery beyond what was initially sought. The court emphasised the importance of adhering to procedural obligations and ensuring that notices to produce were not used as a subterfuge for further discovery. Consequently, the Commonwealth Bank's application for an adjournment was refused. The court ordered that the hearing proceed as scheduled, ensuring that the case could progress without undue delay. The decision underscored the necessity for parties to comply with procedural requirements to facilitate efficient and fair litigation processes.

Orders