Darren Katz v Frederico Alberto Bettini - [2024] NSWDC 668

District Court

New South Wales

Medium Neutral Citation: Darren Katz v Frederico Alberto Bettini [2024] NSWDC 668
Hearing dates: 11 April 2024
Date of orders: 11 April 2024
Decision date: 11 April 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Notice of Motion allowed; the whole of the subpoenae filed by the defendants addressed to the plaintiff, Grushkin Enterprises Australia Pty Ltd, Bernie Cohen & Associates Pty Ltd and Waverley Council be set aside.
(2) The defendants are to pay the plaintiff’s costs of the Notice of Motion and the hearing today.

Catchwords:
PRACTICE AND PROCEDURE – claim for negligence pursuant to s 177 of the Conveyancing Act 1919 (NSW) for failure to take reasonable care not to damage the adjoining property – subpoenae issued by defendants to the plaintiff and council for work carried out by plaintiff on his own property many years beforehand – whether parties entitled to issue subpoenae against each other as opposed to seeking discovery or issuing Notice to Produce – whether subpoenae fishing in nature – subpoenae set aside

Legislation Cited:
Conveyancing Act 1919 (NSW), s 177
Civil Liability Act 2002 (NSW), s 35A
Uniform Civil Procedure Rules 2005 (NSW) r 21.5

Cases Cited:
Hancock v Rinehart [2013] NSWSC 1998
Angel v Hawkesbury City Council [2008] NSWCA 130
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Texts Cited:
Peter Taylor SC, Ritchie’s Uniform Civil Procedure New South Wales

Category: Procedural rulings
Parties: Darren Katz (Plaintiff)
Frederico Alberto Bettini (First Defendant)
Christelle Celine Marie-Francoise Santelli (Second Defendant)
Representation:
Counsel:
Mr S Philips (Plaintiff)
Ms J Thornton (First and Second Defendants)
Solicitors:
Sher Lawyers (Plaintiff)
Addisons (First and Second Defendants)

File Number(s): 2024/00477060
Publication restriction: Nil

Judgment

The application before the court

The plaintiff and defendants are neighbours engaged in litigation concerning damage to the plaintiff’s property claimed to result from work carried out on their property by the defendants’ workmen. The plaintiff, by Notice of Motion filed on 21 March 2025, brings an application to set aside the contents of a series of subpoenae for unrelated works carried out by the plaintiff many years ago to construct a swimming pool.
The orders that are sought are set out in the Notice of Motion as follows:

The whole of the subpoena filed by the defendants on 11 March 2025 and addressed to the plaintiff to be set aside.

The whole of the subpoena filed by the defendants on 11 March 2025 and addressed to Grushkin Enterprises Australia Pty Ltd be set aside.

The whole of the subpoena filed by the defendants on 11 March 2025 and addressed Bernie Cohen & Associates Pty Ltd be set aside.

The whole of the subpoena filed by the defendants on 11 March 2025 and addressed to Waverley Council be set aside.

The defendants pay the costs of this motion.

The evidence before the Court

The plaintiff’s application is supported by an affidavit of Mr Darren Katz, the plaintiff. It attaches, from pages…

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: [2024] NSWDC 668
Decision Date: 11 April 2024

CaseChat Overview and Summary

In the matter of Darren Katz versus Frederico Alberto Bettini, the dispute centred on a claim for negligence under section 177 of the Conveyancing Act 1919 (NSW), where the plaintiff alleged that the defendants had failed to take reasonable care and thereby caused damage to his adjoining property. The case was heard before a court in New South Wales, which was tasked with determining the validity and propriety of subpoenas issued by the defendants to the plaintiff and others regarding work done on the plaintiff's property many years prior.

The central legal issue before the court was whether the defendants were entitled to issue subpoenas against the plaintiff and other entities, or if they should have pursued discovery or a Notice to Produce instead. Additionally, the court had to consider whether the subpoenas amounted to fishing expeditions, which are generally impermissible in litigation. The defendants argued that the subpoenas were necessary to obtain information relevant to the claim, but the plaintiff contended that they were overly broad and potentially oppressive.

Upon reviewing the matter, the court found that the subpoenas were not appropriately tailored to the issues at hand and that the defendants should have pursued more targeted means of obtaining the information they sought. The court concluded that the subpoenas were indeed fishing in nature, as they sought a wide array of documents and information that was not narrowly focused on the specific allegations of negligence. Consequently, the court set aside the subpoenas and directed that the defendants were to bear the costs associated with the motion and the hearing. This decision underscores the importance of precision and relevance in the issuance of subpoenas in legal proceedings.

Orders

Orders of the court

(1) Notice of Motion allowed; the whole of the subpoenae filed by the defendants addressed to the plaintiff, Grushkin Enterprises Australia Pty Ltd, Bernie Cohen & Associates Pty Ltd and Waverley Council be set aside.

(2) The defendants are to pay the plaintiff’s costs of the Notice of Motion and the hearing today.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Darren Katz v Frederico Alberto Bettini [2024] NSWDC 668
Hearing dates:	11 April 2024
Date of orders:	11 April 2024
Decision date:	11 April 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Notice of Motion allowed; the whole of the subpoenae filed by the defendants addressed to the plaintiff, Grushkin Enterprises Australia Pty Ltd, Bernie Cohen & Associates Pty Ltd and Waverley Council be set aside. (2) The defendants are to pay the plaintiff’s costs of the Notice of Motion and the hearing today.
Catchwords:	PRACTICE AND PROCEDURE – claim for negligence pursuant to s 177 of the Conveyancing Act 1919 (NSW) for failure to take reasonable care not to damage the adjoining property – subpoenae issued by defendants to the plaintiff and council for work carried out by plaintiff on his own property many years beforehand – whether parties entitled to issue subpoenae against each other as opposed to seeking discovery or issuing Notice to Produce – whether subpoenae fishing in nature – subpoenae set aside
Legislation Cited:	Conveyancing Act 1919 (NSW), s 177 Civil Liability Act 2002 (NSW), s 35A Uniform Civil Procedure Rules 2005 (NSW) r 21.5
Cases Cited:	Hancock v Rinehart [2013] NSWSC 1998 Angel v Hawkesbury City Council [2008] NSWCA 130 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Texts Cited:	Peter Taylor SC, Ritchie’s Uniform Civil Procedure New South Wales
Category:	Procedural rulings
Parties:	Darren Katz (Plaintiff) Frederico Alberto Bettini (First Defendant) Christelle Celine Marie-Francoise Santelli (Second Defendant)
Representation:	Counsel: Mr S Philips (Plaintiff) Ms J Thornton (First and Second Defendants) Solicitors: Sher Lawyers (Plaintiff) Addisons (First and Second Defendants)
File Number(s):	2024/00477060
Publication restriction:	Nil