Equuscorp Pty Ltd v Malcolm - [2001] VSC 66

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 8285 of 1997
No. 5232 of 1998

EQUUSCORP PTY. LTD.	Plaintiff
v.
WARREN J. MALCOLM AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 JANUARY 2001
DATE OF RULING:	22 MARCH 2001
CASE MAY BE CITED AS:	EQUUSCORP PTY. LTD. v. MALCOLM AND ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 66

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CATCHWORDS: Practice and Procedure – Notices to Produce issued in connection with security for costs application – Documents relevant – Notices not fishing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. F.G.A. Beaumont Q.C. and Mr. J.C. Simpson	Wilmoth Field & Warne
For the Defendants	Mr. M. Dreyfus Q.C. and Mr. R. Heath	Arnold Block Leibler

HIS HONOUR:

This ruling is but another of the many rulings I have been required to make in the Equus Litigation.

On 22 November 2000 the defendant in two of the proceedings filed a summons in each proceeding whereby he seeks an order that Equus provide security for his costs of the proceedings.

The proceedings are No. 8258 of 1997 brought by Equus against Warren J. Malcolm and proceeding No. 5232 of 1998 also brought by Equus against Malcolm.

On the same day that he filed his summonses in the Court Malcolm also served on Equus Notices to Produce the following documentation:

"1.All financial and accounting records prepared for or on behalf of Equuscorp Pty. Limited (ACN 006 012 344) (Equuscorp) between 1 June 1998 and this date;

2.        All management accounts for Equuscorp for the years ended:
(a)       30 June 1998;
(b)      30 June 1999; and
(c)       30 June 2000;

3.        All tax returns for Equuscorp for the years ended:
(a)       30 June 1998;
(b)      30 June 1999; and
(c)       30 June 2000;
4.All documents showing or listing the current creditors of Equuscorp;
5.All documents, including accountant's reports and financial reports, prepared for or on behalf of Equuscorp detailing or summarising the assets and liabilities of Equuscorp for the years ended:
(a)       30 June 1998;
(b)      30 June 1999; and
(c)       30 June 2000;
6.All documents, including accountant's reports and financial reports, prepared for or on behalf of Equuscorp detailing or summarising the profits and losses of Equuscorp for the years ended:
(a)       30 June 1998;
(b)      30 June 1999; and
(c)       30 June 2000;
7.All documents, including accountant's reports and financial reports, prepared for or on behalf of Equuscorp relating to payment by Equuscorp of any monies as a consequence of any security for costs applications for any litigation (other than these proceedings) from June 1998 to date."

On 21 December 2000 Equus filed summonses in each proceeding seeking to set aside or have struck out the Notices to Produce.

On 16 January 2001 Malcolm filed a further Notice to Produce in each proceeding seeking production of the following documents:

"1.The independent chartered accountants' report obtained by the Plaintiff, which is referred to in paragraph 15 and paragraphs F and G of the Schedule to the…

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 Equuscorp Pty Ltd v Malcolm

Details

AGLC: Equuscorp Pty Ltd v Malcolm [2001] VSC 66
Case: [2001] VSC 66
Decision Date: 22 March 2001

CaseChat Overview and Summary

Equuscorp Pty Ltd brought an application for security of costs against Malcolm. The Federal Court was required to determine whether certain notices to produce were relevant to the application. The court held that the notices were not fishing expeditions but rather were relevant to the application for security of costs. The notices were deemed to be appropriate as they sought documents related to the applicant's financial position and the potential costs of the proceedings.

The primary legal issue was whether the notices to produce were relevant to the security for costs application. Equuscorp argued that the notices were relevant as they sought documents that could establish its need for security of costs. Malcolm contended that the notices were a fishing expedition, seeking documents that were not relevant to the application. The court found that the notices were not a fishing expedition but were relevant to the application as they sought documents that could assist in determining whether Equuscorp was likely to be unable to pay the costs of the proceedings if ordered to do so.

The court considered the nature of the security for costs application and the purpose of the notices to produce. It held that the notices were relevant as they sought documents that could establish Equuscorp's financial position and the potential costs of the proceedings. The court noted that the notices were specific in their requests and were not seeking documents that were not relevant to the application. The court found that the notices were an appropriate means of obtaining the necessary information to determine whether Equuscorp was likely to be unable to pay the costs of the proceedings if ordered to do so. The court dismissed Malcolm's objection to the notices.

The court held that the notices to produce were relevant to the security for costs application and were not a fishing expedition. The notices were deemed to be appropriate as they sought documents related to the applicant's financial position and the potential costs of the proceedings. The court dismissed Malcolm's objection to the notices.

Orders