Legal Research
Cases
Gavan v FSS Trustee Corporation

Gavan v FSS Trustee Corporation

Link copied

Case Copied 7 June 2019 63 min read

Contents

On this page

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Gavan v FSS Trustee Corporation [2019] NSWSC 667
Hearing dates: 8 March 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Set aside Order 4 of the consent orders made on 16 February 2017 (but noting that any use by the defendants of the documents falling within the scope of Order 4 that would otherwise have been in breach of the implied Harman undertaking or not authorised for any other reason shall be deemed to have been authorised).
2.   Dismiss the amended notice of motion filed by the plaintiff on 14 November 2018 with costs.
3.   Dismiss the notice of motion filed 6 March 2019 by the second defendant with no order as to costs.
4.   Order the plaintiff to comply by 30 June 2019 with the notice to produce issued by the second defendant on 1 June 2018.

Catchwords: CIVIL PROCEDURE – Notices to produce – documents sought under notice to produce – whether notice to produce should be set aside – whether no legitimate forensic purpose – whether an abuse of process – whether use of documents precluded by the Harman undertaking
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 34, 36.15
Cases Cited: A v Z [2007] NSWSC 899
Alterskye v Scott [1948] 1 All ER 469
Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158
British and American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571; [2003] VSCA 43
Commissioner of Police v Hughes [2009] NSWCA 306
Crest Homes Plc v Marks [1987] AC 829
Deputy Commissioner of Taxation v Karas [2012] VSC 143
Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322
Esso Australian Resources v Plowman (1995) 183 CLR 10; [1995] HCA 19
Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hellessey v MetLife Insurance Limited [2017] NSWSC 1284
Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
ICAP Pty Ltd v Moebes [2009] NSWSC 306
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
Malick v McGeown [2008] NSWSC 129
Norris v Kandiah [2007] NSWSC 1296
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] 1 Qd R 244
Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145; [2009] QCA 345

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.

Keep reading for free

Create a free CaseChat account to read Gavan v FSS Trustee Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 667
Decision Date: 07 June 2019

CaseChat Overview and Summary

Gavan v FSS Trustee Corporation is a case involving the plaintiffs, Gavan and others, suing the defendant, FSS Trustee Corporation, in the Federal Court of Australia. The dispute revolves around the enforcement of a notice to produce certain documents, with the plaintiffs challenging the validity of the notice and the defendant asserting its entitlement to the documents. The court was required to determine whether the notice to produce should be set aside due to the absence of a legitimate forensic purpose, whether it constituted an abuse of process, and whether the use of the documents would be precluded by the Harman undertaking.

The central legal issue before the court was whether the notice to produce documents issued by the plaintiffs was valid and enforceable. The plaintiffs argued that the notice was invalid because it lacked a legitimate forensic purpose, constituted an abuse of process, and would result in the use of documents that should be protected by the Harman undertaking. The Harman undertaking is a principle derived from English case law which prevents the use of documents obtained in one proceeding in a different proceeding where the parties are not the same. The defendant, on the other hand, contended that the notice to produce was valid and that the Harman undertaking did not apply in this instance.

The court found that the notice to produce was valid and enforceable. It held that there was a legitimate forensic purpose for the notice and that it did not constitute an abuse of process. The court also determined that the Harman undertaking did not preclude the use of the documents in question. The court reasoned that the documents sought were relevant to the case and that their use was not contrary to any established legal principles. Consequently, the plaintiffs' application to set aside the notice to produce was dismissed.

In conclusion, the court ruled that the notice to produce documents issued by the plaintiffs was valid and enforceable. The court found that there was a legitimate forensic purpose for the notice, it did not constitute an abuse of process, and the Harman undertaking did not preclude the use of the documents in question. The final orders of the court were that the application to set aside the notice to produce was dismissed, and the plaintiffs were required to comply with the notice to produce the specified documents.

Orders