(1) Order pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the subpoena for production filed on behalf of the second plaintiff on 7 June 2019 which is addressed to the Proper Officer - Corrs Chambers Westgarth be set aside. (2) Order pursuant to r 21.11 or r 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) or the inherent jurisdiction of the Court that the notice to produce dated 7 June 2019 and addressed to the fourth defendant, Hancock Prospecting Pty Limited, be set aside. (3) By consent, order that the provision of possible documents of the Trust to the first defendant or her lawyers by the fourth defendant or the fifth defendant in accordance with these orders will not bring those documents within the scope of the orders made by Brereton J on 5 November 2018 (2018 Orders) if they would not otherwise have been caught by those orders. (4) Further extend the time for compliance with Order 1 of the 2018 Orders to a date to be fixed after the fourth defendant has made available for inspection by the first defendant and her legal representatives the possible documents of the HMH Trust. (5) Order that Order 2 of the 2018 Orders be varied to require the first defendant to use her reasonable endeavours to procure the third parties identified in the Schedule to the 2018 Orders, to provide the first defendant all documents in their possession which are likely to be documents of the HMH Trust, so that they may be reviewed by the first defendant and her legal representatives and any Trust documents produced to the second plaintiff and extend time for compliance with Order 2 to a date to be fixed when these orders are made. (6) Direct that the parties provide agreed short minutes of order (or, failing agreement, separate proposed short minutes of order and submissions in support) within 14 days for a regime to permit access by a computer expert on behalf of the second plaintiff to any electronic database or electronic information retention system maintained by the fourth defendant in respect of documents of the HMH Trust for the purposes of compliance with Order 3 of the 2018 Orders. (7) Extend the time for compliance with Order 3 of the 2018 Orders to a date to be fixed after a regime of the kind contemplated by Order 6 above is implemented. (8) By consent, vary Order 1(iv)(a) of the 2018 Orders to permit the production of a copy of any such documents received or held by the first defendant in some capacity other than as trustee of the HMH Trust, including as a director…
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 Hancock v Rinehart
Sign in free to access the full text
Details
AGLC
Hancock v Rinehart [2019] NSWSC 1451
Case
[2019] NSWSC 1451
Decision Date
CaseChat Overview and Summary
In Hancock v Rinehart, the parties were involved in a dispute concerning the administration of a trust. The primary issue before the court was whether the former trustee, Hancock, was required to deliver all documents of the trust to the new trustee, Rinehart, and if so, whether further orders were necessary to implement this. The court had to determine whether the further orders sought amounted to an application for judicial advice, if there was power to give such advice, and whether these orders were precluded by the principles of res judicata, issue estoppel, or Anshun estoppel. Additionally, the court considered if the further orders were effectively "working out" orders.
The court found that the former trustee was indeed required to deliver all documents to the new trustee. However, the court also held that the further orders sought by the parties amounted to an application for judicial advice, which the court did not have the power to provide. Furthermore, the court determined that the principles of res judicata and Anshun estoppel precluded the relief sought by the parties. The court held that the further orders sought were not "working out" orders, as they did not relate to the future administration of the trust but rather sought to enforce the existing orders.
In its decision, the court clarified that the former trustee was not required to provide further judicial advice but was bound by the initial orders. The court also ruled that the subpoenas and notices to produce issued during the hearing were not for a legitimate forensic purpose and amounted to a fishing expedition, thereby setting them aside. The court denied the application for temporary dispensation from the orders, stating that the principles of Anshun estoppel applied, and the application should not be finally determined at that stage.
The final orders of the court included the dismissal of the application for further orders amounting to judicial advice, the setting aside of the subpoenas and notices to produce, and the denial of the application for temporary dispensation from the orders.