In the matter of Chapmans Ltd ACN 000 012 386 (No 2)
[2015] NSWSC 2061
•11 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Chapmans Ltd ACN 000 012 386 (No 2) [2015] NSWSC 2061 Hearing dates: 11 May 2015 Date of orders: 11 May 2015 Decision date: 11 May 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Notice to produce set aside; leave to file amended originating process given; leave to file cross-claim given.
Catchwords: PROCEDURE – notice to produce – application to set aside notice to produce – where notice imposes unreasonable time for production – abuse of process – held, notice to produce set aside; PROCEDURE – filing of amended originating process and cross-claim – where hearing set down for following week – whether issues raised in amended process and cross-claim to be determined at hearing – desirability of resolution of issues prior to annual general meeting – held, leave to file amended process and cross-claim given. Category: Procedural and other rulings Parties: Peter Michael Kenneth Koadlow (plaintiff)
Chapmans Ltd ACN 000 012 386 (first defendant)
Peter James Dykes (second defendant)
Anthony John Dunlop (third defendant)Representation: Counsel:
Solicitors:
N Kidd SC (plaintiff)
W Muddle SC (defendant)
Banki Haddock Fiora (plaintiff)
ERA Legal (first defendant)
File Number(s): 2015/129742
Judgment (ex tempore)
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HIS HONOUR: Some time on the afternoon of Friday 8 May 2015, the plaintiff served on the defendant a notice which purported to require production to the Court of a number of documents at 10am today, 11 May 2015. On no conceivable view was that a reasonable time. It is not the court's function to refashion documents issued in abuse of process to convert them into something that is not an abuse of process. The Court orders that the notice to produce issued by the plaintiff to the first, second and third defendants and dated 8 May 2015 be set aside.
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It may be that the plaintiff is able to fashion some alternative way of obtaining production of relevant documents in a more reasonable timeframe prior to the hearing and in setting aside that notice. I do not intend to preclude that possibility.
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The plaintiff seeks leave to file a further amended originating process. That process has not yet been seen by the defendants nor by the Court, but the defendants say that they do not oppose leave to file it. I will therefore grant that leave, but it ought not necessarily be assumed that any additional relief claimed in it will be dealt with next week, and the Court may take the view, on application or otherwise, that some of the claims for relief ought to be dealt with separately and after the hearing scheduled to take place next week.
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Likewise, the defendants seek leave to bring a cross-claim, which has not yet been seen by the plaintiff or by the Court. Again, that leave does not appear to be opposed, but again, whether it is appropriate to determine it on the early hearing that has been fixed for next week will remain under review, depending on the state of readiness and the reasonableness of the efforts made by the parties to be ready for it.
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The hearing next week was always intended principally to address whether the resolution that the plaintiff contends should be put to the Annual General Meeting should be put to it, conformably with the interlocutory orders already made. The other issues I accept ought desirably be resolved before the Annual General Meeting, but when they are brought on with this degree of short notice, neither party can reasonably assume that at the final hearing, the resolution of those matters will be possible within the available time.
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The Court further orders that:
The plaintiff have leave to further amend the originating process by filing a further amended originating process, any such amended process to be filed and served by close of business this day, 11 May 2015.
The plaintiff not be entitled to rely at the hearing on any affidavit evidence that has not been served by Wednesday, 13 May 2015.
The defendants not be entitled to rely at the hearing on any evidence that has not been served by 18 May 2015.
The defendants have leave to file and serve a cross-claim, such cross-claim to be filed and served by 13 May 2015 and to be returnable on Wednesday, 20 May 2015 at 10am for hearing.
The defendants not be entitled to rely at the hearing on any evidence in support of the cross-claim that has not been served by close of business on 13 May 2015.
The plaintiff not be entitled to rely at the hearing on any evidence in respect of the cross-claim that has not been served by close of business on 18 May 2015.
Vacate the provisional hearing fixed for 19 May 2015 and appoint 20 May 2015 for the hearing of the claim and the cross-claim.
There be liberty to apply by arrangement with my associate on such notice as the Court may seem appropriate at the time.
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Decision last updated: 11 March 2016
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