J T Interior Pty Ltd v Ozzy States Pty Ltd
[2018] NSWSC 1336
•31 August 2018
Supreme Court
New South Wales
Medium Neutral Citation: J T Interior Pty Ltd v Ozzy States Pty Ltd [2018] NSWSC 1336 Hearing dates: 29 August 2018 Date of orders: 31 August 2018 Decision date: 31 August 2018 Jurisdiction: Common Law Before: Harrison J Decision: The defendant’s application is stood over
Catchwords: JUDGMENTS AND ORDERS – enforcement – order for examination – application to set aside or vary order – where order loosely drafted – application stood over Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876
Quadunion Builders Pte Ltd v Aircraft Support Industries Pty Ltd (No 2) [2015] NSWSC 1857Category: Principal judgment Parties: Ozzy States Pty Ltd (Applicant/Defendant)
J T Interior Pty Ltd (Respondent/Plaintiff)Representation: Counsel:
Solicitors:
M Klooster (Applicant/Defendant)
T Boyle (Respondent/Plaintiff)
Madison Marcus Law Firm (Applicant/Defendant)
Dentons Australia (Respondent/Plaintiff)
File Number(s): 2017/331449 Publication restriction: Nil
Judgment
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HIS HONOUR: On 18 December 2017, an examination order was made that required Remolo Nigro, a director of the defendant, to produce documents as follows:
“You are ordered to:
1…
2 Produce to the court the following documents or things that are in the judgment debtor’s possession or control:
(a) Copies of any document/s in relation to any obligation to pay monies to the company that remain owing.
(b) Copies of any document/s in relation to any obligation to pay monies to the company that will become owing in the future.
(c) Copies of any document evidencing any transfer/s of monies to bank accounts of any related entity since January 2017.”
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The defendant has now sought an order by notice of motion filed on 4 July 2018 to set aside this portion of the examination order pursuant to UCPR r 36.15.
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UCPR r 36.15 provides as follows:
“36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.”
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This rule would not appear to apply in the present case.
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However, there is an inherent power in the Court to permit a person affected by an ex parte order to apply to set it aside or vary it: see New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876 at [31] per Davies J. The defendant would appear to qualify as it is not in issue that the examination order was made in its absence.
Procedural history
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On 2 November 2017, the plaintiff obtained a judgment against the defendant in the sum of approximately $1.166M under the Building and Construction Industry Security of Payment Act 1999. The defendant has paid only a portion of that debt to the plaintiff. An examination order was issued on 18 December 2017. Mr Nigro attended for examination before the Registrar on 9 March 2018. The examination was adjourned part heard. The defendant filed the notice of motion in July 2018.
Legislative scheme
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Section 108 of the Civil Procedure Act 2005 is in these terms:
“108 Order for examination
(1) The court may, subject to and in accordance with the uniform rules, make an order requiring a person bound by a judgment or order:
(a) to attend the court to be orally examined as to any material question, or
(b) to produce any document or thing that is in his or her possession and that relates to a material question.
(2) An order under this section with respect to a person that is a corporation:
(a) may be addressed to any officer or former officer of the corporation, and
(b) binds any such officer or former officer as if he or she were the person bound by the judgment or order.
(3) Without limiting subsection (1), the uniform rules may require the judgment creditor under a judgment debt to have attempted to obtain information as to the judgment debtor's financial circumstances (whether by means of a notice requiring the judgment debtor to supply such information or otherwise) before the judgment creditor may apply for an order under this section.
(5) For the purposes of this section, the ‘material questions’ in relation to a judgment or order are:
(a) to the extent to which it requires the person bound by it to pay money:
(i) questions as to whether any and, if so, what debts are owing to that person, and
(ii) questions as to whether that person has any and, if so, what other property or other means of satisfying the judgment or order, and
(b) to the extent to which it does not require the person bound by it to pay money, such questions concerning or in aid of the enforcement or satisfaction of the judgment or order as may be specified in the order under this section.”
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UCPR r 38.3(5) provides as follows:
“38.3 Orders for examination
…
(5) A person may refuse to produce a document or thing in response to an order for examination if the person could lawfully refuse to produce that document or thing on a subpoena for production.”
Submissions
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The defendant contends that the documents sought in paragraph 2 of the examination order go well beyond its purpose as prescribed by s 108(5) of the Act and that the plaintiff cannot demonstrate a legitimate forensic purpose with respect to many of the documents sought. The material questions in s 108(5) of the Act relate only to the means whereby a judgment debtor can satisfy the judgment. The answers to the material questions are designed to inform a judgment creditor about what, if any, enforcement action might be available to it: see Quadunion Builders Pte Ltd v Aircraft Support Industries Pty Ltd (No 2) [2015] NSWSC 1857 at [33] per Adamson J. The examination order in the present case is intended to facilitate or assist the plaintiff to identify any means by which the defendant could pay the judgment debt.
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Having regard to these matters, the defendant makes the following complaints.
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First, paragraph 2(a) calls for “all documents” without limitation as to particular dates or times. Moreover, it calls for documents to support monies that “remain owing”. The only limiting words are “in relation to” a particular aspect of the material question prescribed by s 108 of the Act. This is so broad as effectively to require the defendant to collect all forms of documents, whether in electronic form or hardcopy, including correspondence with third parties who may currently owe money.
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Secondly, paragraph 2(a) captures a number of documents that are unlikely to have any relevance. By way of example, in the absence of any time restraints, the documents sought include debts that, whilst they may remain owing, may be statute barred and therefore could not be relevant to the material question.
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Thirdly, paragraph 2(b) calls for “any document/s in relation to any obligation to pay monies to the company that will become owing in the future” and is not limited to particular dates or times. This is so broad as effectively to require the defendant to collect all forms of documents, whether in electronic form or hardcopy, including correspondence with third parties who may currently owe money. This would be wide enough to capture rebates that might be payable by the ATO, such as GST returns, and third-party providers.
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Fourthly, paragraph 2(c) calls for the production of “any document evidencing any transfer/s of monies to bank accounts of any Related Entity since January 2007”. This goes well beyond the defendant’s bank statements and calls for the production of each and every receipt, remittance advice, cheques, cheque butts and any other document that may be issued by a bank when a transaction takes place. Moreover, the plaintiff has not demonstrated a legitimate forensic purpose for this additional information when the pertinent information would be disclosed in the defendant’s bank records.
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Fifthly, paragraph 2(c) calls for bank statements, receipts, remittance advices, cheques, cheque butts and any other document that may be issued by a bank for transactions between:
Mr Nigro and his wife;
Any relative of either Mr Nigro or his wife;
Any company of which they have been a director or shareholder at any time; and
Any trust or superannuation fund of any of the persons referred to above.
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The ambit of such documents would arguably include a voluntary superannuation contribution made by a relative of Mr Nigro or his wife to their superannuation fund, a payment made by Mr Nigro or his wife to their child and payments between cousins of either Mr Nigro and/or his wife.
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The defendant contended that the plaintiff cannot demonstrate a legitimate forensic purpose as to how such transactions assist or may assist with the material purpose prescribed by s 108 of the Act.
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The plaintiff contends that the defendant has not demonstrated a sufficient cause for setting aside the order. The examination is part-heard and any issues with the order should have been raised long before now. The delay in bringing the present application has not been adequately explained.
Disposition
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In my view, the orders about which the defendant complains have been somewhat loosely drafted. The documents to which the plaintiff seeks access are in fact those documents that demonstrate the existence of the defendant’s assets in its possession or control, or assets to which it realistically has access, and which may be available to the plaintiff to satisfy the judgment.
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One of the difficulties with the examination order is that it describes the documents in a general adjectival way, rather than by the use of descriptions that are not susceptible to interpretation, and hence doubt, by the person who is the subject of the examination order. For example, an order to produce copies of the defendant’s banks statements could hardly be misunderstood and could not correspondingly be objectionable. Similarly, an order to produce Mr Nigro’s bank statements, upon the basis that they may evidence payments to him by the defendant, would also not appear to be objectionable.
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The “related entity” documents would on one view appear to be an unnecessary complication. At least as a matter of theory, once the plaintiff is armed with the banking details of the defendant and its director/s, the examination of Mr Nigro will presumably identify all or any payments made by the defendant by him to third parties, whether related entities or not. It may be in the modern era that cheque butts or similar hard copy documents that evidence payments that the defendant has made will be less significant than electronic banking records. Be that as it may, it seems to me that the plaintiff ought to be able to describe the things that it wants Mr Nigro to produce in clear and unambiguous terms.
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Accordingly, I will stand this application over for a short period to be determined in consultation with the parties and direct the plaintiff to bring in a proposed draft of any amended or varied terms of the examination order that appears to give effect to the defendant’s concerns and my remarks.
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Decision last updated: 31 August 2018
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