In the matter of Classic Corporation Pty Limited
[2016] NSWSC 1634
•06 June 2016
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Classic Corporation Pty Limited [2016] NSWSC 1634 Hearing dates: Monday, 6 June 2016 Date of orders: 06 June 2016 Decision date: 06 June 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Documents to be produced. Proceedings adjourned for further directions.
Catchwords: PROCEDURE – discovery of documents – verified discovery of documents falling within classes – where documents likely not producible on general discovery Legislation Cited: (NSW) Civil Procedure Act 2005, s 68 Category: Procedural and other rulings Parties: IJG Group 2 Pty Limited ACN 147 112 543 (first plaintiff)
Architectural Aluminium Systems Pty Limited ACN 153 656 538 (second plaintiff)
Classic Corporation Pty Limited (in liq) ACN 157 681 055 (first defendant)
David Solomons and Riad Tayeh as joint and several liquidators of Classic Corporation Pty Limited (second and third defendants)
Cinzia Hanna (fourth defendant)
Lillian Hanna (fifth defendant)Representation: Counsel:
Solicitors:
C Alexander (plaintiffs)
D Jabbour (first to third defendants)(solicitor)
G O’Shea (fourth and fifth defendant)
Lexes Lawyers (plaintiff)
Hall Partners (fourth and fifth defendants)
File Number(s): 2015/ 164680
Judgment (EX TEMPORE)
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HIS HONOUR: By notice of motion filed on 2 June 2016, the plaintiffs seek an order that the defendants give verified discovery of documents falling within classes identified in the document entitled "Request For Disclosure" which is annexed to an affidavit read on the application. That request for disclosure contains eleven enumerated paragraphs describing classes of documents. Some of them were not in dispute but some of them were, and the dispute in respect of those that were in dispute has illuminated the problems with the document as a whole.
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Although now made by reference to classes of documents, orders for discovery are not intended to expand the scope of discovery beyond that which would have been available on an order for general discovery. Essentially, the request for discovery is more in the nature of a subpoena for production than a request for discovery properly so called. Among other things, it seeks documents which almost certainly would not be producible on general discovery, although they might well be producible pursuant to a subpoena for production as they might add to the relevant evidence in the case.
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In this the current case, the documents ultimately are said to go to the issue of whether the subject mortgage is a sham, and in particular, the source of funds which the fourth and fifth defendants claim to have advanced on the security of that mortgage. Some of the documents may well do so, but it is almost inevitable that some of them – for example, some bank statements in respect of at least some of the accounts referred to in para 1 – will not. If an order for discovery was to be made, the appropriate form would be an order that the fourth and fifth defendants give discovery to the plaintiff of documents relevant to the issues raised by para 1 of the amended reply. When offered that prospect, counsel for the plaintiff preferred an order for production of the documents referred to in the request for discovery, mindful that that will not involve the verification that discovery involves. Counsel for the fourth and fifth defendants offered no submission in opposition to that course, holding no specific instructions on it. It is unlikely that a subpoena in those terms would be liable to be set aside, and in those circumstances, I propose to make an order for production of the classes of documents in question. Any claim of prejudice can be made at the time of production, and any issue of confidentiality can also be dealt with, and given that this has arisen in the way it has, I will reserve leave to the fourth and fifth defendants if so advised to reply to set aside the order within the short timeframe.
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Therefore, the Court orders that:
Pursuant to Civil Procedure Act, s 68, the fourth and fifth defendants produce to the Court on 20 June 2016 at 10am, the documents described in para 1 through 11 of the document entitled "Request For Disclosure" marked as annexure A to the affidavit of Alex Attapallil sworn 2 June 2016 herein.
The proceedings be adjourned to 20 June 2016 at 10am for further directions.
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Decision last updated: 18 November 2016
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