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)

1. 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.

2. 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.

3. 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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Decision last updated: 18 February 2016