Dunn v Kaz Group Limited - [2006] NSWSC 8

CITATION: Dunn v KAZ Group Limited [2006] NSWSC 8

HEARING DATE(S): 17 January 2006

JUDGMENT DATE :
17 January 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 01/17/2006

DECISION: Subpoena and notices to produce not set aside

CATCHWORDS: PRACTICE – subpoenas and notices to produce – when fishing – when sufficiently particular – whether subpoena objectionable because it describes documents as “relating to” a subject matter – when oppressive

CASES CITED: Finnie v Dalglish [1982] 1 NSWLR 400
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

PARTIES: Charles James Dunn - Plaintiff/Respondent
KAZ Group Limited - Defendant/Applicant

FILE NUMBER(S): SC 6193/05

COUNSEL: R Dubler SC - Plaintiff/Respondent
B L Jones - Defendant/Applicant

SOLICITORS: Thomson Playford - Plaintiff/Respondent
Mallesons Stephen Jaques - Defendant/Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 17 JANUARY 2006

6193/05 CHARLES JAMES DUNN v KAZ GROUP LTD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is a notice of motion which seeks to set aside a subpoena and two notices to produce. Each of them was issued by the plaintiff in these proceedings, and each was issued to the defendant.

2 The proceedings in which the subpoena and notices to produce have issued are ones which are brought by a man who had been the Chief Executive Officer and director of a company called EPT. EPT was in the business of selling a particular kind of software. The defendant has come, after buying the interest of ANZ bank, to be the sole shareholder. The defendant wishes to close down EPT, while the plaintiff believes it would be possible to realise some of its assets by sale to a particular United States entity.

3 The points of claim are ones which, in very broad terms, allege that three particular decisions through which the decision of the defendant to close down EPT were manifested involved a breach of representations, or alternatively of contracts, or alternatively of fiduciary obligations, which were owed to the plaintiff.

4 The matter is next in the list on 23 January 2006, when an interlocutory hearing will, if the other business of the Court permits, proceed.

5 Already, the Court has made some interim orders, which, in broad terms, restrain the defendant from interfering with negotiations which the plaintiff is conducting in attempts to realise assets of EPT.

6 The subpoena is one which was issued on 8 December 2005. It seeks:

“1. All documents evidencing or relating to the reasons for the decision of the Defendant to:

(a) reject the Plaintiff's proposal of 17 November 2005 as communicated by email by Mr Mark Stead on or about 17 November 2005;

(b) cease to fund the operations of Enhanced Processing Technologies, Inc. as communicated by Mr Mark Stead at the Board meeting on or about 30 September 2005; and

(c) decline to proceed with and/or withdraw support for the Participation Agreement in part evidenced by a draft document entitled…

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.

Continue reading Dunn v Kaz Group Limited

Details

AGLC: Dunn v KAZ Group Limited [2006] NSWSC 8
Case: [2006] NSWSC 8
Decision Date: 17 January 2006

CaseChat Overview and Summary

Dunn and another, the plaintiffs, were in dispute with Kaz Group Limited, the defendant, over a loan agreement. The matter was before the Supreme Court of New South Wales. The primary dispute was whether the subpoenas issued by the plaintiffs were valid and whether they amounted to an oppressive fishing exercise. The plaintiffs sought to subpoena documents relating to the defendant's financial dealings with certain individuals and entities. The defendant argued that the subpoenas were overly broad and oppressive, as they did not specify the documents sought with sufficient particularity.

The court considered whether the subpoenas were sufficiently particular in describing the documents sought. It held that the use of the phrase "relating to" was not inherently problematic, provided the subpoena was otherwise sufficiently particular. The court further held that the plaintiffs' subpoenas were not oppressive because they were narrowly tailored to the issues in the case and did not seek documents that were unrelated to the subject matter of the litigation. The court found that the subpoenas were valid and that the defendant was required to produce the documents sought.

The court ordered the defendant to produce the documents specified in the subpoenas within 14 days of the judgment. The court also found that the defendant's objections to the subpoenas were without merit and ordered the defendant to pay the plaintiffs' costs of the application.

Orders