Davron v Teys - [2009] NSWSC 1004

No judgment structure available for this case.

CITATION: Davron v Teys [2009] NSWSC 1004

HEARING DATE(S): 29/07/09

JUDGMENT DATE :
24 September 2009

JURISDICTION: Equity Divison

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 62

CATCHWORDS: Practice and Procedure. Review of Registrar's decision. Matters not raised before Registrar. Whether any relevant error on the part of the Registrar. Application for review dismissed.

PARTIES: Davron Investments Pty Ltd & Ors v Teys Property Funds Limited & Ors

FILE NUMBER(S): SC 6009/2007

COUNSEL: Mr D Lloyd for plaintiff
Mr EC Muston for Ace Insurance

SOLICITORS: HWL Ebsworth for plaintiff
Gilchrist Connell for Ace Insurance

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 24 September 2009

6009/2007 Davron Investments Pty Ltd & Ors v Teys Property Funds Limited & Ors.

JUDGMENT

1 His Honour: This is the hearing of a notice of motion filed on 28 October 2008 by Ace Insurance Limited in which they seek a review of a decision of Senior Deputy Registrar Flaskas given on 2 October 2008, pursuant to the provisions of Part 49 Rule 19 of the Uniform Civil Procedure Rules 2005 (UCPR).

2 The Registrar dismissed an application to set aside a subpoena, dated 29 May 2008, to produce documents issued by the first defendant to the applicant. The Registrar ordered the subpoena not be set aside and the applicant pay the first defendant's costs.

3 The applicant seeks an order that the subpoena to produce documents be set aside and that the first defendant, Teys Property Funds Ltd pay the costs of this and the earlier proceeding before the Registrar.

Background facts.

4 Before the Registrar, the applicant Ace Insurance Limited, who is not a party to the proceedings, sought to have the subpoena set aside in accordance with r 33.4 of the UCPR. The applicant asserted no legitimate forensic purpose regarding the subpoena had been demonstrated.

5 Registrar Flaskas decided that the motion should fail for the reasons he expressed, namely:

“I am of the view that the motion being considered in court should fail for the following reasons today. I am satisfied that the first defendant has successfully argued its case. I am also satisfied that the document sought to relate to the very valuation the subject of the principal proceedings in this matter. “

6 The parties’ submissions helpfully set out the facts and I will incorporate them with amendments.

7 The substantive case relevantly includes a claim against the fifth defendant, Tony Sergiacomi, regarding an allegation of negligence in the preparation of a valuation.

8 The documents called for in the subpoena were all documents relating to any claims received by Ace Insurance in respect of valuations of property in Geles Road, Upper Burringbar, New South Wales. The valuations were made by the fifth defendant who held himself out as a valuer of properties in and around Burringbar.

9 The fifth defendant provided a valuation of the Geles Road property of $6,800,000. This valuation sits at the centre of the main proceedings against the first defendant. The valuation and the methodology used to achieve it, is contained in a report prepared by the fifth defendant under the banner of ‘SB Group Property Valuers and Consultants Pty Ltd’ (SB Valuers), dated 22 August 2005. Ace Insurance was the insurer of SB Valuers and SB Valuers is not a party to the litigation.

10 The plaintiffs had advanced approximately $2.2 million to the first defendant and in July/August 2005 the first defendant advanced an amount of approximately $2.85 million to an entity called Jerusalem Valley Estate to secure a mortgage over the Geles Road property. Jerusalem Valley Estate defaulted on the loan and it is now alleged that the Geles Road property is worth between $675,000 to $700,000.

11 In the main proceedings, the plaintiff claims damages against the defendants under the Trade Practices Act 1974 (Cth) and the Fair Trading Act. As against the first defendant they assert that the first defendant failed to obtain the services of an independent and qualified valuer experienced in valuing property in the area in which security if offered.

12 If the first defendant is to be found liable, they seek to assert that the fifth defendant was a concurrent wrong doer and proportionately liable.

13 The plaintiff directly brings a claim for damages against the fifth defendant, alleging negligence in connection with the valuation.

14 On 4 June 2008 the first defendant served a subpoena on the applicant to produce the complete file they possessed in relation to insurance cover provided by them to SB Valuers. The schedule to the subpoena included items such as telephone discussions, file notes and so forth.

15 Paul Kozub, Partner for Thomson Playford solicitors, who were at the time acting for the applicant, ACE Insurance, signed a letter sent to the HWL Ebsworth and dated 12 June 2008, requesting the schedule to the subpoena be revised and limited to the documents relevant to the valuation the subject of proceedings. This was on the grounds that the schedule to the subpoena was very wide and its terms were unduly onerous and oppressive. An extension of four weeks to produce the documents was also requested.

16 Mr Matthew Harding of HWL Ebsworth Lawyers responded, in a letter dated 2 July 2008, to Mr Paul Kozub at Gilchrist Connell, in the following way:

“Whilst we do not necessarily agree that the request for production of the documents listed in the schedule to the subpoena is unduly onerous and oppressive, in the interests of ensuring we obtain the relevant documents in a timely fashion, we advise that our client is prepared to limit its request for documents for production to the following:

SB Group

2. All documents relating to any claims received by ACE un respect of the valuations conducted by SB Group of property at 108 Geles Road, Upper Burringbar in the State of New South Wales, dated 25 May 2005 and 22 August 2005, including claims by third parties and/or SB Group, and all correspondence between ACE, the insured and/or other third parties including liquidators in respect of any claims made in relation to these valuations, including but not limited to all file notes, letters, emails and telephone discussions.”

17 Since that time the parties have conducted the matter on the basis of this substituted description in the subpoena. In a letter 16 July, Mr Nicholas Maley, Principal of Gilchrist Connell lawyers, who were then acting for ACE in place of Thomason Playford, followed up a telephone conversation he had had with Tracy Sawtell of HWL Ebsworth. He wrote confirming that a copy of the originating process would be sent to him from HWL Ebsworth and confirming that the subpoena would be stood over for two weeks to 28 July 2008.

18 A response from HWL Ebsworth was sent on 31 July 2008 in which they agreed to the time extension to 28 July and they stated:

“Having regard to the provisions of Supreme Court of NSW Practice Note No. SC Gen 2, our client is unable to accede to your request in circumstances in which proceedings have yet to be concluded. We note that paragraphs 6 and 7 of the Practice Note provide as follows:

‘6. Access to material in any proceedings is restricted to parties, expect with the leave of the Court.

Pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

Documents that record what was said or done in open court;

Material that was admitted into evidence; and

Information that would have been heard or seen by any person present in open court,

Unless the judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.’

John Fairfax Publlications Pty Ltd v Ryde Local Court

19 Gilchrist Connell wrote to HWL Ebsworth on 11 August on the applicant’s behalf and stated that a notice of motion would be served. They had formed a different view of the Supreme Court of NSW practice note. The letter stated that being unable to access the pleadings made it impossible for them to determine which documents were relevant and whether there was a legitimate forensic purpose in the request.

20 Prior to proceedings before the Registrar on 2 October 2008, the applicant had not had access to a copy of the pleadings and was only given access to them during the hearing. However, Mr Muston appearing for the first defendant, stated that the applicant had been told before the proceeding that an application to access the document would not be opposed (Transcript page 2, from line 21).

The nature of the review of a decision of a Registrar

21 What should a court take into consideration when reviewing a Registrar’s decision? A useful starting point is found in the authority of House v The King [1936] HCA 40; (1936) 55 CLR 499. While that case was concerned with an appeal against sentencing under the Bankruptcy Act 1924 (Cth), it provides guidance in terms of the policy considerations that should be exercised when reviewing the process of discretionary decision-making. At page 504, Dixon, Evatt and McTiernan JJ said:

“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the Court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

22 In Tomko v Palasty (No 2) [2007] NSWCA 369 the Court of Appeal recently dealt with the nature of review with which I am concerned and that case has indicated the Court’s powers of review are wider than would be found when hearing an appeal. Justice Basten, after an extensive examination of the authorities, concluded at [52] in these terms:

(1) the application should be treated as a “review”, pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19;

(2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;

(3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King , do not in terms apply to a review;

23 The other members of the court were Hodgson JA and Ipp JA. Ipp JA agreed with what was said by Basten JA, subject to the adoption of the additional remarks of Hodgson JA. Those additional remarks appear in paragraphs 6 to 10 of the decision which is as follows:

House v. The King

In Re the Will of Gilbert

24 Hodgson JA recently reaffirmed those views in Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11. His Honour said the following at paragraphs 16 – 19:

Tomko v Palasty (No 2)

House v The King

25 Plainly this is a matter which is concerned with practice and procedure and the limitations referred to by Hodgson JA will apply.

The Registrar’s Decision

26 The Registrar decided that the documents sought related to the valuation that was the subject of the main proceedings.

27 The applicant argues that this finding was an error. The documents do not relate to the valuation for the following reasons,

(a) the documents sought in the subpoena must be limited to the fifth defendant’s alleged negligence and liability to the plaintiff.

(b) the Court has a duty to require the issuer of a subpoena to identify the legitimate forensic purpose of the subpoena and the party which issued the subpoena must identify that purpose before production will be ordered.

(c) a subpoena will have a legitimate forensic purpose if the documents produced will throw light on issues in the case.

28 Reasons (b) to (d) are well-established principles as set out in NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [19] to [22].

29 With reference to the two categories of documents set out in the letter from HWL Ebsworth of 2 July 2008, the applicant claims that the first defendant now identifies the legitimate forensic purpose as being, respectively:

(1) the representations made to ACE when SB Valuers obtained insurance cover with them, might be relevant to whether SB Valuers was appropriately experience or qualified.;

The proceedings

30 The applicant does not suggest they suffered from a material change in circumstances or that there was an error of law or a House v The King kind of error. However their submissions state that they were placed at a disadvantage in proceedings before the Registrar because they did not have access to the pleadings before the hearing. As a consequence, the applicant argues they had no proper opportunity to make submissions about the forensic purpose of the subpoena. They submitted that the first defendant was under an obligation to identify what was the legitimate forensic purpose before the hearing.

31 The first defendant noted that the letter of dated 12 June 2008, referred to above, requested the schedule to the subpoena be revised and limited to the documents relevant to the valuation the subject of proceedings. According to the first defendant, this is an indication that the applicant had some awareness of the issues raised in the substantive proceedings.

32 Further the first defendant points out that the applicant did not make an application to the Court to access the pleadings prior to the hearing and that Mr Phillips, for the applicant, stated in proceedings before the Registrar that simply providing the pleadings was not in itself sufficient, thus the disagreement between the parties regarding the reliance upon Practice Note 2 was perhaps not relevant (transcript page 1, lines 36-38).

33 Furthermore, the first defendant argues that the pleadings were made available to Mr Phillips during the hearing and he could have sought an adjournment for as long as was required to consider the pleadings.

Error of law

34 It is Suggested that at page 2 line 42 of the transcript that Mr Muston, appearing for the first defendant, had misstated the law by saying that it was:

“not the position that a party issuing a subpoena must prove to the satisfaction of the recipient that there is a legitimate forensic purpose. ”

35 The fist defendant claims that this complaint suggests that the applicant is arguing the Registrar may have determined the notice of motion on the basis of a misstatement of the law. This is not what the applicant’s submissions actually say. The full exchange was as follows:

“I have no difficulty myself with my friend having access to a copy of the pleadings from the court file. It was suggested to someone from my friend's firm on 9 September 2008 that if they wished to make an application to have access to the document it wouldn't be opposed. That was confirmed in correspondence. I think, as my friend quite properly puts, it's really not an issue on this application but I think my friend might be assisted by seeing a copy of the pleadings and I should say that my copy has been annotated but - I don't know whether my friend wants to make an application to see the pleadings or not.

PHILLIPS: I guess I have a couple of things to say about that, Registrar.
First of all I don't think it is really sufficient for a party to say in relation to their obligation to prove a legitimate forensic purpose, "Here's a copy of the pleadings. You go through them. You work out what it is". I think the onus is much more specific than that and they have to actually point to particular allegations or issues that are raised in those pleadings and say, "This is the issue to which we think those documents may relate".

Forensic purpose

36 Counsel for the first defendant then took the Registrar to the pleadings to demonstrate the forensic purpose. Nicholas J in ICAP Pty Ltd v Moebes & Anor [2009] NSWSC 306 at [25] to [33] provides an analysis of the principles to be applied in circumstances where there is a challenge to a subpoena on this ground. He said:

Attorney-General (NSW) v Stuart

R v Saleam

[32] The application of the test requires consideration of the issues in the principal proceedings. These issues are usually those identified in the pleadings and the particulars of the facts and matters relied upon in support of the pleaded allegations. They must be expressed with specificity (UCPR Pt 14, Pt 15). Interlocutory procedures of discovery and interrogatories facilitate the resolution of the issues, the scope of which is limited by relevance to them.

[33] So too, is the scope of the demand upon an opponent or third party under a subpoena. Demonstration of the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case for which it is likely the documentation will assist. It is, therefore, necessary that the issue be clearly identified in the pleadings or particulars as it is the point of reference by which the legitimacy of the subpoena is to be determined. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleading or particulars, or the terms in which it has been expressed are obscure and imprecise.“

37 Plainly it is only where there is an objection that the party seeking access has to demonstrate that there is a legitimate forensic purpose. That would have to be done before the court determining the matter. There is no obligation to demonstrate it beforehand although a failure to give an indication might well sound in costs. See NSW Commissioner of Police v Tuxford [2003] NSWCA 139 at 21 – 23.

38 Applying this test to the facts, was it open to the Registrar to accept the subpoena had a legitimate forensic purpose because the issue was clearly identified in the pleadings?

39 It is common ground that the valuation was prepared under the banner of SB Valuers. The statement of claim at [44](f) and [50](f), alleges the first and second defendants beached section 52 of the Trade Practices Act and section 42 of the Fair Trading Act and it alleges negligence and breach of fiduciary duty against the defendants for engaging in conduct which is purported to include failing to obtain the services of an independent and qualified valuer experienced in valuing property in the area in which security is offered. However, it should be noted that it appears from the transcript (page 5 lines 18 to 24) that the applicant was not aware that the fifth defendant was a party to proceedings until the hearing before the Registrar, although the correspondence prior to the hearing would imply the fifth defendant’s involvement.

40 It is because of these facts that the first defendant states there is a clearly identified legitimate forensic purpose. The allegations call into question the independence, qualifications and experience of SB Valuers and the fifth defendant. The first defendant’s submissions state that the documents sought in category one of the letter from HWL Ebsworth dated 2 July 2008 (reproduced above) are likely to include a proposal form and correspondence from SB Valuers or its brokers and internal underwriting documents may record details of conversations an underwriter had with the fifth defendant or relevant broker at the time. These documents may contain representations made by or on behalf of SB Valuers as to the nature or its business, the manner in which that business was conducted, the qualifications of the fifth defendants and possibly the experience and claims history of SB Valuers.

41 The applicant argues that the underwriting information bears no relevance to the issues in dispute and the material sought would thus be inadmissible. The information required would not indicate whether SB Valuers, or the fifth defendant, were suitably qualified and experienced, or whether SB Valuers had a proper basis for believing the fifth defendant was qualified and experienced. This information should be adduced from other evidence, such as whether the fifth defendant was licensed – an objective fact to be established in proceedings.

42 The first defendant is seeking to reduce any potential liability through apportioning that liability to the fifth defendant pursuant to s 35 Civil Liability Act 2002. They therefore argue it is likely that the documents referred to in category two of the letter of 2 July 2008 will contain or refer to communications to ACE made by SB Valuers, the fifth defendant or third parties, regarding the basis for conducting the valuation, the circumstances in which it was made and these communications may contain admissions. The extent to which the business was conducted may have a more general relevance to the question of whether the valuation was conducted negligently.

43 In relation to category two, the applicant argues that the question of whether ACE has received a claim for indemnity from SB Valuers or by a third party cannot rationally affect the question of whether the fifth defendant’s valuations were negligently prepared. This is a question of fact to be decided by the trial judge presumably on the basis of expert evidence. Therefore, the evidence sought by ACE would be inadmissible. Additionally, any correspondence between ACE and third parties about whether any claims had been made has no probative value on the question of whether the fifth defendant negligently prepared the valuations. This evidence would also be inadmissible.

44 Questions of relevance and admissibility of evidence adduced from the production of documents ordered by subpoena served on third parties has been analysed by Brereton J in Portal Software v Bodsworth [2005] NSWS 1115 at [23] to [25] and cited with approval in a number of cases. His Honour states:

Waind and Hill

‘Production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence in the case.’

White v Tulloch

Arnotts

Alister v R

R v Saleam

Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could “possibly throw light” on the issues in the substantive proceedings, or that it appears to be “on the cards” that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.“

45 Given the description of the documents sought, in my view it is clear that they may well throw light on the question of the valuer’s expertise and may also contain admissions on the question of the valuations and matters concerning its preparation. In my view the Registrar was correct to accept that there was a legitimate forensic purpose.

46 Although the ground was not expressed as a denial of natural justice it is as well to consider whether the solicitor for Ace Insurance Limited was denied an opportunity to put his case. The first thing to note is that in reference to what was said in the transcript I have set out earlier, there was no taking up of the offer to see the pleadings. There was also no application for an adjournment based upon the inability to have seen the pleadings before the hearing.

47 What seems to have happened is that the solicitor for Ace Insurance Limited decided to argue the matter on the run and make complaints about the late identification of the forensic purpose. He was given an appropriate opportunity to respond to the arguments and did so. He did not suggest that the subpoena was oppressive. Given the lack of opportunity to see the pleadings before the hearing in my view he would have had a good case to look at them if he had wished. He could well have obtained an adjournment to enable him to do so.

48 No breach of natural justice has occurred.

The subpoena is oppressive

49 Having had a chance to review the pleadings and the first defendant’s response as to the forensic purpose of the pleadings, the applicant’s current submissions differ to the submissions made to the Registrar.

50 They argue that the documents sought in category 1 and 2 are very broad and they are not limited by time, so production in that sense would be oppressive. The first part of category two seeks “all documents relating to” claims received by ACE, which might apply to a significant number of documents. However, the applicant has put no evidence forward in this regard and the issue was not raised before the Registrar.

51 At the hearing the following was stated (transcript page 4, lines 24 to 35):

“DEPUTY REGISTRAR: Is your argument that there is a legitimate forensic purpose?

MUSTON: Yes.

DEPUTY REGISTRAR: It’s not oppressive? It’s not a fishing expedition? Is that what you say?

MUSTON: No, there’s no suggestion, as I understand it, that it’s oppressive. I think the suggestion is that it simply lacks forensic purpose and what might be characterised as a fishing expedition. My submission is that it has a plain forensic purpose.”

52 Mr Muston appeared for the first defendant and there was no demur to what he suggested. It was consistent with what occurred before the Registrar.

53 It is fundamental to the administration of justice that substantive issues and facts are not raised for the first time at the level of an appeal, if that evidence could have been heard in the trial proceedings. There is an extensive line of authority explaining this axiom of the law.

54 In University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 (at 483) Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to reuse a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so.”

55 Mason CJ, Wilson, Brennan and Dawson JJ in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, considered the correctness of the Court of Appeal’s view that that upon the facts of the case as found by the trial judge and with regard to the plaintiff’s submission at trial, a particular in a case of negligence “emerged” against the Water Board, which the plaintiff had not appeared to rely on at trial. Their Honours stated:

“The course taken by the Court of Appeal immediately casts doubt upon whether it was correct in concluding that, upon the facts as found by the trial judge, the plaintiff had made out a case of negligence against his employer. The only case which he could have made out was one which he sought to put, for a trial is not at large but is of the issues joined by the parties. If the case which the Court of Appeal thought was made out was one which the plaintiff had sought to put on trial, then it may not have been unfair, as the Court of Appeal appears to have thought it would have been, for judgment to have been entered for the plaintiff on the appeal and for any question of contributory negligence to have been dealt with then and there. Any element of unfairness can only have arisen from the fact that the case against the employer which the Court of Appeal discerned, was not a case which the plaintiff sought to make at trial and was not, for that reason, a case which the employer had been required to meet. It was not a case which could be met upon appeal because the possibility of calling evidence to meet it was denied to the employer at that stage.

Suttor v Gundowda Pty Ltd

University of Wollongong v Metwally (No 2)

Coulton v Holcombe

O'Brien v Komesaroff

Dare v Pulham

Leotta v Public Transport Commission (NSW)

Maloney v Commissioner for Railways (NSW)

Leotta

56 In Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Latham C.J., Williams and Fullagar JJ, referred to a Privy Council decision from 1897:

Grey v. Manitoba and North Western Railway Co. of Canada

"The questions now raised ought to have been raised on the pleadings and evidence so that they might be properly thrashed out in the courts below. As the matter stands they have not been touched by the courts below ... they (their Lordships) confine themselves to deciding the issues which the court below were invited by the plaintiffs to decide." “

57 Even if it were appropriate to consider this submission which was not raised below I do not think it has substance. The categories, although not date limited, are appropriately limited by particular events or description.

58 I do not think that the documents sought are so wide that the subpoena would be oppressive.

The subpoena is issued for an improper purpose

59 The first defendant’s defence filed on 27 March 2008 states at [4] that there was a custodial agreement between the first and second defendant, where the second defendant was custodian of the Elway Bridging Fund. At [36](m) and (n) the defence states:

“(m) … on 26 October 2007, the Second Defendant as custodian of the Elway Bridging Fund and at the express direction of the First Defendant as responsible entity of the Teys Trust issued a letter of demand on the insuraers of SB Property Valuers for payment of the default judgment;

60 The applicant argues now that on the above grounds it appears that the true purpose of the subpoena “might well be” the indemnity claim set out at [36] (m) and (n). They state that the claim is not an issue in proceedings and if documents are sought for that purpose the subpoena is issued for an improper purpose.

61 No further evidence to support this allegation has been provided by the applicant. Given the evident forensic purpose I am not satisfied that there is any such improper purpose.

Conclusion

62 I dismiss the motion filed 28 October 2008 with costs.

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Citations

Davron v Teys [2009] NSWSC 1004

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CITATION:	Davron v Teys [2009] NSWSC 1004
HEARING DATE(S):	29/07/09
JUDGMENT DATE :	24 September 2009
JURISDICTION:	Equity Divison
JUDGMENT OF:	Macready AsJ at 1
DECISION:	Paragraph 62
CATCHWORDS:	Practice and Procedure. Review of Registrar's decision. Matters not raised before Registrar. Whether any relevant error on the part of the Registrar. Application for review dismissed.
PARTIES:	Davron Investments Pty Ltd & Ors v Teys Property Funds Limited & Ors
FILE NUMBER(S):	SC 6009/2007
COUNSEL:	Mr D Lloyd for plaintiff Mr EC Muston for Ace Insurance
SOLICITORS:	HWL Ebsworth for plaintiff Gilchrist Connell for Ace Insurance