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Frontier Assets Pty Ltd v Fishburn

Frontier Assets Pty Ltd v Fishburn

Case [2011] NSWSC 334 21 April 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334
Hearing dates: 31 March 2011
Decision date: 21 April 2011
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Order Frontier to pay Mr Wavish's reasonable loss and expense of complying with the subpoena issued to him dated 13 October 2010.
2. Make no order as to the costs of the motion filed 12 November 2010 to set aside the subpoena, including the costs of the hearings and argument before me.
3. Order Frontier to pay Mr Wavish his reasonable loss or expense incurred in complying with the subpoena issued to Milan Djekovic dated 13 October 2010.

Catchwords: PROCEDURE - costs - whether respondent ought to pay applicant's reasonable loss and expense incurred in complying with a subpoena issued to him by respondent - respondent ordered to pay applicant's costs - no order made as to costs of applicant's motion to set aside the subpoena
Legislation Cited: Civil Procedure Act 2005
Cases Cited: A Pty Ltd v Z [2007] NSWSC 999
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; (1993) 11 ACSR 136
Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647
Danieletto v Khera (1995) 35 NSWLR 684
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284
Hadid v Lenfest Communications Inc (1996) 144 ALR 73; (1996) 65 FCR 350
Harrison v Schipp [2001] NSWCA 13
Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242; (1995) 125 FLR 151
J Aron Corporation Pty Ltd v Newmont Yandal Operations Pty Ltd [2005] NSWSC 1280
NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480; (2001) 109 FCR 77
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879; (2006) 67 NSWLR 289
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Re Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ACSR 681
Category: Consequential orders
Parties: Frontier Assets Pty Ltd (Plaintiff)
Michael George Fishburn (First Defendant)
John James Watson (Second Defendant)
Christopher Martin O'Brien (Third Defendant)
Sam Couper (Fourth Defendant)
Stephen Campbell (Fifth Defendant)
Michael Bigelow (Sixth Defendant)
Todd Ritchie (Seventh Defendant)
Bernard Coles QC (Eighth Defendant)
Representation: Counsel:
G George (Plaintiff)
I R Pike (Applicant)
Solicitors:
Kalfus Legal (Plaintiff)
Gilbert + Tobin (Applicant)

File Number(s): 2008/289361

Judgment

HIS HONOUR : I gave judgment in this matter on 22 March 2011 with respect to an amended notice of motion filed in Court on behalf of Mr Wavish on 21 March 2011: see [2011] NSWSC 187. These reasons assume a familiarity with that decision. It will be recalled that that notice of motion sought these orders:

1. [Frontier] pay Mr…

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 Frontier Assets Pty Ltd v Fishburn

Details

AGLC: Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334
Case: [2011] NSWSC 334
Decision Date: 21 April 2011

CaseChat Overview and Summary

The parties involved in this case were Frontier Assets Pty Ltd, the applicant, and Fishburn, the respondent. The nature of the dispute was a claim by the applicant for an order that the respondent should pay the applicant's reasonable loss and expense incurred in complying with a subpoena issued to the respondent by the applicant. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the respondent should be ordered to pay the applicant's reasonable loss and expense incurred in complying with the subpoena. The court was also required to determine whether there should be an order made as to the costs of the applicant's motion to set aside the subpoena.

In its decision, the court held that the respondent should pay the applicant's reasonable loss and expense incurred in complying with the subpoena. However, the court found that there should be no order made as to the costs of the applicant's motion to set aside the subpoena. The court reasoned that the applicant had not demonstrated that the motion to set aside the subpoena was without merit or that it was an abuse of process. The court found that the applicant had not shown that the subpoena was oppressive or vexatious, and therefore, the costs of the motion should not be awarded.

The final orders of the court were that the respondent should pay the applicant's reasonable loss and expense incurred in complying with the subpoena, but there should be no order made as to the costs of the applicant's motion to set aside the subpoena.

Orders