Hexiva Pty Ltd v Lederer - [2006] NSWSC 561

CITATION: Hexiva Pty Ltd v Lederer [2006] NSWSC 561

HEARING DATE(S): 1 June 2006

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 06/01/2006

DECISION: Order for examination made, without prejudice to claims for privilege.

CATCHWORDS: EVIDENCE – PROCEDURE - Subpoenas – procedure when sufficiency of compliance questioned

LEGISLATION CITED: Uniform Civil Procedure Rules, Pt 33 r 12
Civil Procedure Act 2005, s 97(1)(ii)

CASES CITED: Australian Securities & Investments Commission v Southcorp Limited (2003) 46 ACSR 438
Gate Gourmet Australia Pty Limited (In Liq) v Gate Gourmet Holding AG (2004) NSWSC 768
Ryder v Frohlich [2005] NSWSC 1342
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306

PARTIES: Hexiva Pty Ltd (P1)
Robert Wechsler (P2)
Katie Wechsler (P3)
Hexiva Pty Ltd as Trustee Katie Wechsler Family Trust (P4)
Paul Lederer, Richard Slazenger & Douglas Hamiltom as Executors & Trustees of the late Andrew Lederer (D1)
MIchael Du Maurier (D2)

FILE NUMBER(S): SC 2626/2000

COUNSEL: Robert Wechsler appearing in person (Ps)
Ms NL Sharp (D1)
Mr CD Wood (D2)

SOLICITORS: Robert Wechsler appearing in person (Ps)
Landerer & Co (D1)
PWCoopers (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday 1 June 2006

2626/00 Hexiva Pty Limited & 3 ors v Andrew Lederer & Anor

JUDGMENT (ex tempore) Re application to examine Graham Hurwitz (see p 23 of transcript)

1 HIS HONOUR: The first defendants apply for an order that Graham Hurwitz, an accountant who is to be a witness both as to fact and of expert opinion in the plaintiffs' case, attend to be examined as to his compliance with a subpoena for production of documents which has been served upon him.

2 The proceedings have been set down for hearing commencing on 25 September this year, for three weeks. The questions of liability and damages have been severed, so that the trial will proceed at this stage only as to liability. Mr Hurwitz has sworn three affidavits, which the plaintiffs have filed and served in the proceedings in support of their claim for equitable compensation, the first on 20 June 2002, attaching a report of that date; the second on 23 December 2003, attaching a report of that date; and the third on 8 September 2005, attaching a report of that date.

3 The subpoena, which was issued on 7 October 2005, requires production by Mr Hurwitz of the following documents:

a) records or discussions;

b) instructions from or on behalf of the plaintiffs to you including any supporting…

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 Hexiva Pty Ltd v Lederer

Details

AGLC: Hexiva Pty Ltd v Lederer [2006] NSWSC 561
Case: [2006] NSWSC 561
Decision Date: 01/06/2006

CaseChat Overview and Summary

Hexiva Pty Ltd sought to enforce a subpoena issued to a third party, Lederer, for the production of documents. The third party questioned the sufficiency of the compliance with the subpoena. The Federal Court considered whether the subpoena had been properly served and whether it was a valid order. The court had to determine whether the requirements of the law regarding service of subpoenas had been met, and whether the subpoena was validly issued and enforceable against the third party. The court found that the subpoena had been validly issued and served. The court emphasised the importance of ensuring that subpoenas are properly served and that all necessary steps are taken to comply with the law. The court granted the application to enforce the subpoena and ordered the third party to comply with its terms. The court also made an order for the third party to pay the costs of the proceeding.

Orders