In the matter of Aquaqueen International Pty Limited
[2016] NSWSC 453
•15 April 2016
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: In the matter of Aquaqueen International Pty Limited [2016] NSWSC 453 Hearing dates: 15 April 2016 Date of orders: 15 April 2016 Decision date: 15 April 2016 Jurisdiction: Equity Before: Kunc J Decision: Security ordered
Catchwords: PRACTICE AND PROCEDURE – Subpoenas – Provision of funds by issuing party to secure in advance recipients’ reasonable costs of compliance – UCPR Part 33 r 33.11 Legislation Cited: Uniform Civil Procedure Rules NSW Cases Cited: Bauhaus Pyrmont Pty Ltd (in Liquidation) [2006] NSWSC 253 Category: Procedural and other rulings Parties: Titan National Pty Ltd ACN 092 896 029 (First Plaintiff)
Kathryn Wood-Weber (Second Plaintiff)
Aquaqueen International Pty Ltd ACN 094 129 389 (in liquidation) (Defendant)
Shirley Penson (other party)Representation: C Perry (Solicitor) (Plaintiffs)
Solicitors:
S Penson (in person)
Pure Legal (Plaintiffs)
File Number(s): 2013/297134 Publication restriction: No
EX TEMPORE JUDGMENT
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For the purposes of the hearing next week, I granted leave on an earlier occasion to Ms Penson to issue subpoenas to Mr Frank Hoare, process server and Mr Trent Devine, liquidator.
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Those subpoenas have been returnable before me today.
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Ms C Perry, Solicitor, has appeared on behalf of both Mr Hoare and Mr Devine.
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I have made certain rulings in relation to the scope of those subpoenas. Ms Perry has applied for an order that before the Court requires compliance with those subpoenas (or in the case of Mr Hoare, further compliance, because he has produced one document this morning), Ms Penson should be ordered to provide an amount by way of security for Mr Hoare's and Mr Devine's reasonable costs of compliance with their respective subpoenas.
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UCPR Pt 33 r 33.11 provides:
33.11 Costs and expenses of compliance
(1) The court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(2) If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.
(3) An amount fixed under this rule is separate from and in addition to:
(a) any conduct money paid to the addressee, and
(b) any witness expenses payable to the addressee.
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As will be apparent from the terms of that rule, it is on its face addressed to what is to occur after a party has complied with a subpoena.
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In the matter of Bauhaus Pyrmont Pty Ltd (in Liquidation) [2006] NSWSC 253, Austin J said:
15 Rule 33.11 of the new rules makes provision for recovery of reasonable expenses. The rule declares that the Court may order the issuing party to pay the amount of any reasonable loss or expenditure incurred in complying with the subpoena. This proposition applies to subpoenas to produce as well as subpoenas of the other two kinds to which I have referred. Significantly, for present purposes, the authority given to the Court relates to the payment of reasonable loss or expenses "incurred in complying with the subpoena". This suggests that at least in the normal course, the Court will deal with the matter after the expenditure has been incurred.
16 Although rule 33.11 does not expressly say so, it seems to me that the Court would have jurisdiction, at least under its inherent jurisdiction, to entertain an application for an order to be made before the person to whom the subpoena is directed had incurred expenses. Such an application may be appropriate where the probability is that the amount of expenditure will be great compared with the resources of the applicant and/or there may be some doubt about the ability of the issuing party to meet an order for recovery of expenses of such a substantial amount.
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I respectfully agree with and adopt his Honour’s views about the inherent jurisdiction. The Court in particular fixes today on his Honour's reference to there being “some doubt about the ability of the issuing party to meet an order for recovery of expenses of such a substantial amount", although the present case turns on the likelihood of any payment rather than the size of the amount involved.
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Ms Perry submits that given the history of these proceedings, including the fact that they are all about attempting to recover nearly $400,000 in costs orders from Ms Penson which Ms Penson has, at least prima facie on the evidence that has been adduced before me, declined and resisted in various ways paying, this is a case where the Court ought to be satisfied that there will again be either an unwillingness or an incapacity on Ms Penson's part to meet the reasonable costs of compliance of Messrs Devine and Hoare in relation to these subpoenas.
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The Court accepts that submission. It is unnecessary for present purposes to recite the extraordinary history of the costs orders in this litigation and its prolongation through the filing of numerous motions by Ms Penson, both in this Court and in the Court of Appeal, which have had the effect of keeping the plaintiffs out of costs orders to which, again on a prima facie basis, it appears that they are entitled.
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There is evidence before me that to comply with the subpoena addressed to Mr Devine, his costs (including legal costs) are estimated at $1,705 plus GST. That is only an estimate. It is, of course, always difficult for such estimates to be precise. However, I do not regard myself as bound on an application of this kind simply to accept the estimate that has been provided. That is not to suggest that the estimate is unreasonable or incorrect.
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In a situation such as the present, the Court must balance the Court’s concern that a person complying with a subpoena should have an assurance of receiving their reasonable costs against the entitlement of the person issuing the subpoena to take advantage of the processes of the Court.
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In relation to the subpoena to Mr Devine, doing the best I can, I will require Ms Penson to provide $1,300 by way of security for Mr Devine's reasonable costs of complying with the subpoena.
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In relation to Mr Hoare, an estimate of his costs (including legal costs) is in evidence of $1,460 plus GST.
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Approaching the matter broadly in the same way as I have to the subpoena addressed to Mr Devine, I will order Ms Penson to provide security in the amount of $1,000 in respect of Mr Hoare's reasonable costs of complying with the subpoena addressed to him.
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The security amounts can be paid into Ms Perry’s firm’s trust account pending further order of the Court or the agreement of the relevant parties.
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The Court's orders are:
In relation to the subpoena addressed to Mr Devine, Ms Penson is to provide security in the amount of $1,300 to be paid into the trust account of Pure Legal and to be held by that firm pending further order of the Court or agreement between the parties as to Mr Devine's reasonable costs of compliance.
In relation to the subpoena addressed to Mr Hoare, Ms Penson is to provide security in the amount of $1,000 to be paid into the trust account of Pure Legal and to be held by that firm pending further order of the Court or agreement between the parties as to Mr Hoare's reasonable costs of compliance.
The subpoenas are stood over for further production to before me at 9.30am next Wednesday 20 April 2016 provided that no production will be required if the security amounts referred to in Orders 1 and 2 have not been paid.
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Amendments
18 April 2016 - Date of order in 17(3) changed to 20 April 2016.
Decision last updated: 18 April 2016