Grace v Grace (No 8) - [2014] NSWSC 419

Supreme Court

New South Wales

Medium Neutral Citation: Grace v Grace (No 8) [2014] NSWSC 419
Hearing dates: 8 April 2014
Decision date: 10 April 2014
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Pursuant to UCPR r 34.2(1), second defendant not required to produce, under paragraph 3 of the plaintiff's notice to produce dated 30 October 2013, bank statements in respect of certain accounts;
Time for compliance with notice otherwise extended to 8 May 2014;
Second defendant have liberty to apply for any costs of compliance with the notice;
Second defendant's motion to set aside para 3 of notice otherwise dismissed with costs (including 75% of the costs of the hearing on 8 April 2014);
Second defendant not entitled to rely on form of account unless she has served, a reasonable time before its use, a schedule identifying location of evidence supporting each item in form of account.

Catchwords: PROCEDURE - courts and judges generally - courts - application to set aside a notice to produce in part - where notice seeks production of all defendant's bank statements for a period of 17 years - whether notice being used as a substitute for discovery - held, notice does not seek discovery, nor attempt to circumvent any relevant limitation placed on discovery - whether notice issued for a legitimate forensic purpose - held, notice issued for a legitimate forensic purpose, namely to test veracity of defendant's account - whether notice oppressive - held, notice not unnecessarily wide in time but defendant relieved from compliance in respect of certain accounts which are unlikely to contain relevant evidence
Legislation Cited: Uniform Civil Procedure Rules, r 21.10, r 34.1, r 34.2(1)
Cases Cited: Broadcast GP [2010] NSWSC 763
Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd trading as Westgate Finance v May [2012] NSWSC 806
Grace v Grace (No 7) [2013] NSWSC 1745
Grace v Grace [2012] NSWSC 976
In the Matter of Colorado Products Pty Ltd (In Prov Liq) [2013] NSWSC 392
In the matter of Prismex Technologies Pty Limited; Colin Lindsay Taggert v John Matyear [2013] NSWSC 278
Norris v Kandiah [2007] NSWSC 1296
Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Category: Interlocutory applications
Parties: David Alexander Grace (plaintiff)
Deborah Sharon Grace (first defendant)
Julienne Grace (second defendant)
Nevilda Holdings Pty Ltd (third defendant)
Nevilda Investments Pty Ltd (fourth defendant)
Dutchie Pty Ltd (sixth defendant)
Phoenix Rising Investments Pty Ltd (seventh defendant)
Representation: Counsel:
Mr D L Williams SC with Mr S Goodman (plaintiff)
Mr D Stewart (first, second, seventh defendants)
Solicitors:
James Tuite & Associates (plaintiff)
Clinch Long Letherbarrow Pty Ltd (first, second, seventh defendants)

File Number(s): 2006/259566

Judgment

Before the Court are two interlocutory applications, arising in connection with the accounts and inquiries under the substantive judgment. The second defendant Dr Grace (to whom in this judgment I shall for the sake of convenience refer as the defendant) applies to have…

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 Grace v Grace (No 8)

Details

AGLC: Grace v Grace (No 8) [2014] NSWSC 419
Case: [2014] NSWSC 419
Decision Date: 10 April 2014

CaseChat Overview and Summary

The proceedings before the court involved an application by the plaintiff, Grace, to set aside a notice to produce issued by the defendant, Grace, in part. The notice required the defendant to produce all bank statements for a period of 17 years. The dispute was heard in the Federal Circuit Court of Australia. The central legal issues the court needed to address were whether the notice was being used as a substitute for discovery, whether it was issued for a legitimate forensic purpose, and whether it was oppressive.

The court first examined whether the notice was being used as a substitute for discovery. It found that the notice was not seeking discovery, nor did it attempt to circumvent any relevant limitation placed on discovery. The court then considered whether the notice was issued for a legitimate forensic purpose. It held that the notice was indeed issued for a legitimate forensic purpose, specifically to test the veracity of the defendant's account. Finally, the court assessed whether the notice was oppressive. It determined that the notice was not unnecessarily wide in time. However, the defendant was relieved from compliance in respect of certain accounts which were unlikely to contain relevant evidence. Based on these findings, the court decided that the application to set aside the notice in part should be dismissed.

Orders