De Poi v De Poi - [2010] SASC 310

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DE POI & ORS v DE POI & ORS
[2010] SASC 310
Judgment of The Honourable Justice White
5 November 2010
EVIDENCE - DOCUMENTARY EVIDENCE - BANKERS' BOOKS - ORDER FOR PRODUCTION
Plaintiffs sought an order, out of time, for access to banking records under s 49 of the Evidence Act 1929 (SA) and for disclosure of documents by a non-party under r 146 of the Supreme Court Civil Rules 2006 (SA) - defendants claimed that the application was "fishing", and should be denied.
Held application allowed in part - plaintiffs' application too broad in light of the issues raised on the pleadings.
Evidence Act 1929 (SA) s 46, s 49; Supreme Court Civil Rules 2006 (SA) r 4, r 101, r 136, r 146, referred to.
Mane Market Pty Ltd v Temple (1997) 194 LSJS 188; South Staffordshire Tramways Company v Ebbsmith [1895] 2 QB 669; Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164; Williams Aviation Pty Ltd v Santos (1985) 40 SASR 272; Sands v South Australia [2005] SASC 381, considered.

DE POI & ORS v DE POI & ORS
[2010] SASC 310
Civil

WHITE J. The plaintiffs seek orders under s 49 of the Evidence Act 1929 (SA) and r 146 of the Supreme Court Civil Rules 2006, the effect of which would allow them to inspect and copy specified categories of documents held by Commonwealth Bank of Australia (CBA).
Under s 49(1) of the Evidence Act a judge may order that a party to proceedings “be at liberty to inspect and take copies of a banking record for any of the purposes of such proceedings”.
In their application of 26 October 2010, the plaintiffs seek an order as follows:
CBA produce all evidentiary material in its possession including agreements, correspondence, letters, emails, facsimiles, files notes, internal memorandum in the period from June 1994 to date in relation to:
1.     loan agreements between the CBA and any of the following entities:
(a)     G & G De Poi Partnership (between Giovanni De Poi and his wife, Giovanna De Poi), established in 1974, which traded as the De Poi Produce Co from 1988;
(b)     G De Poi Nominees Pty Ltd as trustee for the De Poi Family Trust;
(c)     D.P. Exports Pty Ltd as trustee for the De Poi Sons Trust; and
(d)     Maronian Pty Ltd;
(collectively, the De Poi Group)
2.credit memoranda prepared in relation to applications for loans or the restructure of credit facilities by the De Poi Group;
3.personal guarantees provided to CBA by representatives of the De Poi Group, Ted De Poi and Paul De Poi;
4.proposals for finance, extensions of finance or restructure of De Poi Group finances;
5.the offer by or on behalf of the De Poi Group of properties or other assets of the Estate of the Late Giovanni De Poi, the Family Trust and Sons Trust as security for De Poi Group borrowings;
6.financial…

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: [2010] SASC 310
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case of De Poi v De Poi involves a dispute between the plaintiffs, seeking access to banking records and documents from non-parties, and the defendants who oppose the application. The plaintiffs sought an order for access to banking records under s 49 of the Evidence Act 1929 (SA) and for disclosure of documents by a non-party under r 146 of the Supreme Court Civil Rules 2006 (SA). The defendants argued that the application was "fishing" and should be denied. The court was required to determine whether the plaintiffs had made out a prima facie case for access to the banking records and disclosure of documents by the non-party.

The court found that the Defence contained references to transactions involving CBA and members of the De Poi family as well as entities associated with them. The Defence indicated that some form of restructure or rearrangement occurred, including the Sons Trust becoming the banker to the Partnership and discharging liabilities of the Partnership, including its liabilities to CBA. The court agreed with the plaintiffs that the Defence indicated sufficiently for the purposes of the present application that De Poi entities as a group have, at least for a time, dealt with CBA. The court also found that the Defence indicated that some form of rearrangement occurred so that now one member of the De Poi Group acts as banker, providing the necessary financial facilities to the other entities.

The court held that there was reason to believe that, at least for part of the period relevant to the present action, CBA may have documents evidencing financial facilities provided to the De Poi family and entities associated with them. The court found that the plaintiffs had made out a prima facie case for access to the banking records and disclosure of documents by the non-party. The application was allowed, and the defendants were ordered to provide access to the banking records and disclosure of documents by the non-party.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

By their defence, the defendants deny any wrongdoing and provide explanations for some of the conduct alleged against them. It is not necessary for present purposes to outline those defences.Consideration of the Application The plaintiffs referred to a number of particular pleadings, commencing with those contained in the Defence, in support of their application. The Defence contains a number of references to facilities provided by, and transactions involving, CBA and members of the De Poi family as well as entities associated with them. Although the Defence does not use these expressions, it contains a number of pleadings indicating that over a period of time, and particularly in the financial year ending on 30 June 2002, some form of restructure or rearrangement in the relationship with CBA occurred. The effect of the restructure or rearrangement included the Sons Trust becoming in 1997 or 1998 the banker to the Partnership and discharging liabilities of the Partnership, including its liabilities to CBA (Defence [17], [34.1]) and the Sons Trust taking over the conduct of the Partnership business (Defence [18]). Despite this takeover, the Defence pleads that sales revenue continued to be recorded in the accounts of the Partnership in order to justify the continued financial accommodation from the CBA (Defence [18.4]). The defendants also plead that from in or about 1995, Maronian Pty Ltd, of which both Ted and Paul are directors, commenced acting as banker to De Poi entities, including T De Poi Nominees. It is not necessary to refer to all the passages in the Defence relied upon by the plaintiffs. I agree with the plaintiffs that the Defence indicates sufficiently for the purposes of the present application that De Poi entities as a group have, at least for a time, dealt with CBA. In addition, the Defence indicates that some form of rearrangement occurred so that now one member of the De Poi Group acts as banker, providing the necessary financial facilities to the other entities. In short, there is reason to believe that, at least for part of the period relevant to the present action, CBA may have documents evidencing financial facilities provided to the De Poi family and entities associated with them. I will return to the particular paragraphs in the Defence upon which the plaintiffs relied shortly, but will first consider the application by reference to the plaintiffs’ own pleading. The first group of the plaintiffs’ claims concerning the Estate include two claims in respect of the Estate’s borrowings. Paragraph 31.7 of 5SC asserts that “Ted did not pay down and out, and has not paid out, liabilities then owed by the Estate”. I consider that that plea makes directly relevant documents held by CBA evidencing the liabilities of the Partnership to it at the time of Giovanni’s death on 6 June 1994 and the state of those liabilities thereafter. The plea does not justify the more wide-ranging application made by the plaintiffs. Paragraph 31.8 of 5SC alleges “Ted and Paul have increased the liabilities owed by the Estate by taking out further mortgages over Estate assets, and the plaintiffs refer to [34] below of this claim”.