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)
Iinvest Pty Ltd (in liquidation) (First Respondent)
J H M Pty Ltd (Second Applicant)
Commonwealth Bank of Australia (Second Respondent)Representation: Counsel: P King (Applicant)
Solicitors: Roderick Alexander Ian Storie (Applicant)
E Cheeseman SC with J White (Respondent)
Dentons (Respondent)
File Number(s): 2013/108514
EX TEMPORE JUDGMENT (REVISED)
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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.
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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.
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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…
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- Case
- [2017] NSWSC 429
- Decision Date
CaseChat Overview and Summary
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.
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Background
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Evidence
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