In the matter of Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (No 3) - [2015] NSWSC 2017

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (No 3) [2015] NSWSC 2017
Hearing dates: 13 March 2015
Date of orders: 13 March 2015
Decision date: 13 March 2015
Jurisdiction: Equity
Before: Brereton J
Decision:
Interlocutory process dismissed; first respondent/fourth defendant to pay applicant’s costs of interlocutory process.

Catchwords: COSTS – reasonableness of application for interlocutory relief – where application required to be made due to respondent’s refusal to comply with notice to produce – held, costs to be paid by respondent.
Category: Costs
Parties: Salmat Limited ACN 002 724 638 (first plaintiff/first applicant)
Salmat Mediaforce Pty Limited ACN 001 702 129 (second plaintiff/second applicant)
Fuji Xerox Businessforce Pty Limited ACN 137 933 905
Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (first defendant)
Philip Raymond Hosking and David Anthony Hurst in their capacities as deed administrators of Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (second defendants)
Jason Kenneth Ryan (third defendant/second respondent)
Front Foot Project Funding Pty Limited ACN 601 976 346 (fourth defendant/first respondent)
Representation:
Counsel:
A Henskens SC w S A Wells (plaintiffs/applicants)
D L Cook (third & fourth defendant/respondents)
C Alexander (interested party)
Solicitors:
Thomson Geer (plaintiffs)
Downeys Lawyers Pty Limited (first defendant)
James Hamilton Surry Partners Lawyers (second defendants)
Pure Legal (third & fourth defendants)

File Number(s): 2014/354864

Judgment (ex tempore)

HIS HONOUR: In my view, faced with the recalcitrance of the fourth defendant in responding to the notice to produce at all, and its belated response to paragraph 1 of the Notice to Produce, the plaintiff acted reasonably in making this application. The necessity for it could have been avoided had the fourth defendant done anything between December 2014 and the institution of these proceedings to respond to the notice and explain that it had no documents to produce.
Although the limited production achieved may have added nothing to the material otherwise available, that could and should have occurred at a much earlier time than it did. Although for a while I was attracted to the view that there should be no order as to costs of the motion, it seems to me that the fourth defendant’s recalcitrance in responding to it was the real cause for the application being made, and the fourth defendant should pay the costs of the interlocutory process.
The Court orders that the interlocutory process be otherwise dismissed, and that the first respondent/fourth defendant pay the applicant's costs of the interlocutory process.

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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.

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Details

AGLC: In the matter of Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (No 3) [2015] NSWSC 2017
Case: [2015] NSWSC 2017
Decision Date: 13 March 2015

CaseChat Overview and Summary

In the case of Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (No 3), the applicant sought an order for costs, arguing that the respondent's refusal to comply with a notice to produce led to the necessity of making an interlocutory application. The matter was heard in the Supreme Court of New South Wales, where the central issue was the reasonableness of the application for interlocutory relief due to the respondent's non-compliance. The applicant contended that the respondent's refusal to produce the requested documents necessitated the court's intervention, and thus the costs incurred should be borne by the respondent.

The court examined the circumstances under which the interlocutory application was made, considering the respondent's refusal to comply with the notice to produce. It assessed whether the application was reasonable and necessary under the given circumstances. The court concluded that the respondent's refusal to produce the documents was unjustified and unreasonable, leading to the applicant's need to seek court intervention to compel production. As a result, the court held that the costs of the interlocutory application were reasonable and should be paid by the respondent.

The Supreme Court of New South Wales determined that the applicant's costs associated with the interlocutory application were reasonable given the respondent's refusal to comply with the notice to produce. The court ordered that the respondent was to bear the costs of the application, reflecting the unreasonableness of their actions in not complying with the notice. This decision underscores the importance of adhering to court notices and the consequences of failing to do so, including the potential imposition of costs.

Orders