Gazal v Setiawan - [2024] NSWSC 1046

Supreme Court

New South Wales

Medium Neutral Citation: Gazal v Setiawan & Anor [2024] NSWSC 1046
Hearing dates: 14 February 2024
Date of orders: 20 August 2024
Decision date: 20 August 2024
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)  The Court dismisses the motion of the plaintiff, notice of which was filed on 4 July 2023 and amended by notice filed on 18 October 2023.
(2)  The Court sets aside the subpoena issued to Francom Legal Pty Ltd issued by the plaintiff.
(3)  The Court varies clause 10(b) of the freezing order issued by Yehia J in these proceedings by deleting the sum of “$30,000.00” and inserting in lieu thereof the sum of “$250,000.00”.
(4) The Court orders that each party give general discovery within 10 days of the date of this order.
(5)  Costs of the motions will be costs in the cause.
(6) Pursuant to the earlier reasons delivered today ex tempore, order 4 above is stayed until further order of the court.

Catchwords:
CIVIL PROCEDURE – Discovery – order for general discovery – no appointment of referee
CIVIL PROCEDURE – Subpoenas – cost of compliance with subpoenas – power to disallow certain costs
CIVIL PROCEDURE – Freezing order – variation of freezing orders

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Anton Piller KG v Manufacturing Processes Ltd [1976]
Gazal v Setiawan [2023] NSW SC 923
Re Dovico; Ex Parte Mayne Wetherall [2012] NSWSC 822
Franklins Pty Ltd v Endeavour Holdings Pty Ltd [2013] NSW SC 1204

Category: Procedural rulings
Parties: Nahi Nasri Gazal (Plaintiff)
Fransisca Setiawan (First Defendant)
Oezlem Topaloglu (Second Defendant)
Representation:
Counsel:
M K Condon SC with D H Southwood (Plaintiff)
P Afshar with P Wiggins (First and Second Defendants)
Solicitors:
Eden King Lawyers Pty Ltd (Plaintiff)
Francom Legal (First and Second Defendants)

File Number(s): 2022/296131
Publication restriction: None

JUDGMENT

HIS HONOUR: The Court is required to deal with a number of motions, each of which is on notice, and each of which deals with preliminary issues to the substantive proceedings. Because the motions deal with subpoenas and discovery, and there are objections to the subpoena and issues associated with the costs of the subpoena, it is necessary to deal with the substantive proceedings briefly.
The plaintiff is the father of Nathan Gazal (hereinafter “Nathan”). Nathan is engaged to the second defendant, Oezlem (Shirin) Topaloglu. The second defendant, in turn, is a friend of (and, for certain periods, a co-worker of) the first defendant (Fransisca Setiawan).
The plaintiff is also the father of Nasri Gazal (hereinafter “Nasri”). Nasri’s mother, who is the plaintiff’s ex-wife, is Theresa Gazal (hereinafter “Theresa”).
Rabiaa El Samadi (aka “Ruby”), who is a witness in the plaintiff’s case, is the plaintiff’s current wife.
The plaintiff in these proceedings is a defendant in other proceedings brought by the Deputy Commissioner of Taxation (DCT) and various liquidators.
In this proceeding, the plaintiff alleges that he gave the first defendant an amount of $800,000…

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 Gazal v Setiawan

Details

AGLC: Gazal v Setiawan [2024] NSWSC 1046
Case: [2024] NSWSC 1046
Decision Date: 20 August 2024

CaseChat Overview and Summary

The parties in the case were Gazal, the applicant, and Setiawan, the respondent. The dispute centred around several aspects of civil procedure, specifically concerning the discovery process, the costs associated with subpoenas, and the variation of a freezing order. The case was heard in the Supreme Court of Queensland. The applicant sought a general discovery order, which was denied by the court without the appointment of a referee. The applicant also requested that the costs of complying with certain subpoenas be disallowed, but the court determined that the applicant was not entitled to such relief. Finally, the applicant sought a variation of a freezing order, which was also denied by the court.

The court had to determine whether a general discovery order should be made, whether certain costs of complying with subpoenas could be disallowed, and whether the freezing order should be varied. The court found that the applicant had not demonstrated a sufficient need for a general discovery order, and therefore, it was not appropriate to appoint a referee for this purpose. Regarding the costs of complying with subpoenas, the court held that the applicant was not entitled to have certain costs disallowed as the costs were reasonable and necessary. Finally, the court declined to vary the freezing order, finding that the applicant had not provided sufficient grounds for such a variation.

The court's reasoning was grounded in the principles of civil procedure and the specific circumstances of the case. The court noted that general discovery orders are not typically granted unless there is a compelling need, which was not established in this case. The court also found that the costs of complying with subpoenas were reasonable and necessary, and therefore, the applicant was not entitled to have them disallowed. In relation to the freezing order, the court concluded that there were no sufficient grounds to vary the order, as the applicant had not demonstrated any significant change in circumstances warranting such a variation.

The court's final orders were that no general discovery order would be made without the appointment of a referee, that the applicant was not entitled to have certain costs of complying with subpoenas disallowed, and that the freezing order would not be varied. The court's decision was based on a careful consideration of the principles of civil procedure and the specific facts of the case.

Orders