Goh v Goh (in the matter of Moolal)

[2006] FCA 1637

FEDERAL COURT OF AUSTRALIA

Goh v Goh (in the matter of Moolal) [2006] FCA 1637

PRACTICE AND PROCEDURE – application for discovery of taxation returns 

Held: application granted – taxation returns basic financial record – consistent with case related to defendant’s financial position

Harman v Home Department State Secretary [1983] 1 AC 280 applied

TENG GOH v MOOLAL PTY LTD & ORS
VID 1027 OF 2005

HEEREY J
16 NOVEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1027 OF 2005

BETWEEN:

TENG GOH
Plaintiff

AND:

MOOLAL PTY LTD
First Defendant

JUDITH GOH
Second Defendant

CONSTANCE GOH
Third Defendant

JUDGE:	HEEREY J
DATE OF ORDER:	16 NOVEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The second named defendant file and serve a supplementary affidavit of documents discovering her taxation returns for the years ending 30 June 2001, 30 June 2002, 30 June 2003, 30 June 2004, 30 June 2005 and 30 June 2006 within 7 days of this order.

2.The costs for the motion to be paid by the first and second defendants forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1027 OF 2005

BETWEEN:

TENG GOH
Plaintiff

AND:

MOOLAL PTY LTD
First Defendant

JUDITH GOH
Second Defendant

CONSTANCE GOH
Third Defendant

JUDGE:	HEEREY J
DATE:	16 NOVEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The plaintiff claims pursuant to letters of administration ad colligendum bona of the estate of Prudence Teng Fong Goh (his sister) against their sister, Judith Goh (the second defendant), various relief concerning the affairs of the first defendant (the Company). 

2. The relief sought is:

   ·    an order that the Company be wound up by the Court;

   ·    alternatively, an order that the third defendant Constance Goh be removed as a director;

   ·    alternatively, an order that the allotment of certain ordinary and preference shares to Judith Goh be set aside.

3. Judith Goh’s defence is that by a Minute of the Company dated 31 March 2004, she was appointed as a director and provided with a share allocation.  She also claims that some of her earnings as a gynaecologist were paid directly into the bank account of the Company and that as a result she was to be given a share allocation.

4. On 2 November 2006 the plaintiff filed a notice of motion seeking orders that discovery be made of Judith’s taxation returns and any documents from the Company’s accountant relating to the preparation of its taxation returns and financial reports.   At the hearing of the motion, counsel for the plaintiff indicated that the documents from the Company’s accountant had been received and that only Judith’s tax returns would be pursued at that time.

5. It is apparent from the affidavit of Judith Goh that a substantial part of her case rests on earnings she says she received and payments she says she made out of those earnings.  Her tax returns are basic financial records, and are inherently likely to provide information as to those matters.  I am, frankly, a little surprised that their production has been resisted.  There will be an order in terms of par 1 of the notice of motion. 

6. The usual obligations, for which Harman v Home Department State Secretary [1983] 1 AC 280 is the leading authority, restrict the use to which a party that receives documents by way of discovery may put them. They are to be used only for the purpose of the litigation. There is no reason why any further restriction should be placed on use of them by the plaintiff. The plaintiff's conduct of the litigation should not be restricted by confining access to the discovered documents in the way suggested by masking parts said to be irrelevant. The plaintiff, as administrator, should be entitled to inspect the documents, along with his legal advisers and experts.

7. It has been necessary for the plaintiff to bring this proceeding and the plaintiff should get the costs of the motion, such costs to be taxed and paid forthwith. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:        28 November 2006

Counsel for the Plaintiff:	T DiLallo
Solicitor for the Plaintiff	Russell Kennedy
Counsel for the Defendants:	P G Lovell
Solicitor for the Defendants:	Mason Sier Turnball
Date of Hearing:	16 November 2006
Date of Judgment:	16 November 2006