Jetobee Pty Ltd v Smith
[2016] NSWSC 1297
•12 September 2016
Supreme Court
New South Wales
Medium Neutral Citation: Jetobee Pty Ltd v Smith [2016] NSWSC 1297 Hearing dates: 12 September 2016 Date of orders: 12 September 2016 Decision date: 12 September 2016 Jurisdiction: Equity - Corporations List Before: McDougall J Decision: Direct defendant to comply with Notice to Produce subject to redaction of first 12 numbers of each card account.
Catchwords: PRACTICE AND PROCEDURE – notice to produce – where defendant has produced redacted and incomplete copies of documents – whether defendant is entitled to rely on redacted copies of documents – where defendant claims that redacted entries are confidential Category: Procedural and other rulings Parties: Jetobee Pty Ltd (in liquidation) ACN 002 714 776 (First Plaintiff)
Mark Damian Charles Roufeil (Second Plaintiff)
Josephine Aapa Smith (Defendant)Representation: Counsel:
Solicitors:
S Golledge (Plaintiffs)
D Krochmalik (Defendant)
Gadens Lawyers (Plaintiffs)
Levitt Robinson Solicitors (Defendant)
File Number(s): 2016/38293
Judgment (ex tempore – revised 12 september 2016)
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HIS HONOUR: The plaintiffs are a company in liquidation and its liquidator. They seek to recover from the defendant a one quarter interest formerly held by the first plaintiff (Jetobee) in a property at Wiley Park. The defendant (Ms Smith) was the de facto partner of the director of Jetobee at the time the transaction apparently occurred.
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Ms Smith's case is that she is entitled to her interest in the property and that she gave full value for it. As I understand it, she will say that she paid expenses for Jetobee's hotel business, and transferred money to it either in cash or by electronic funds transfers, the total of which amounts to what she says was the ultimately agreed purchase price, $140,000.
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In support of that aspect of her defence, Ms Smith has produced redacted copies of credit card statements relating to two accounts held by her. She says that the unredacted entries in those statements relate to payments made on behalf of Jetobee.
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The plaintiffs seek access to unredacted copies of the credit card statements. Further, they say, the copies that have been produced are incomplete. They seek complete copies, and if necessary will issue subpoenas to the relevant financial institutions in an attempt to entertain them.
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Ms Smith says, through her solicitor, that the redacted entries are confidential. She claims to be a person of some notoriety, and asserts that if unredacted copies of the statements are produced, it may "give the media more things to gossip about".
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Beyond the somewhat vague assertion that the redacted entries do not relate to Jetobee, and do relate to personal expenses on Ms Smith's own account, the evidence is singularly uninformative.
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Mr Krochmalik of Counsel, for Ms Smith, submitted that I should look at the documents (in their unredacted form) and make up my own mind. I do not propose to do so. Ms Smith is the person who has the obligation of making good the claim of confidence. The evidence is weak. I do not see why she should be permitted to supplement it in a way that deprives the other party, the plaintiffs, of knowing what the further evidence is.
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Despite the state of the evidence, I can understand the proposition that details of Ms Smith's personal expenditures should not be cast without any restraint into the public arena. The appropriate course, in my view, is to direct that unredacted copies of the credit card statements (with an exception to which I will turn in a moment) be made available to the plaintiffs' legal advisers, on the basis that no one apart from those legal advisers and the liquidator are to have access to them without the further leave of the Court. If there are employees of the liquidator who assist him in the conduct of the liquidation, and if it is necessary for those employees to have access, it may be possible to extend that regime.
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At first, I thought, the matter could be dealt with by making a suppression order. On reflection, I do not think that this is appropriate. I am by no means satisfied, on the evidence as it stands, that the making of such an order would be justified having regard to the necessary balancing exercise that the Court is required to carry out.
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Mr Krochmalik maintained his submission that if all were made available, the credit card number itself should be redacted. Whilst I do not think that there is any real likelihood that officers of the Court (as both the lawyers and the liquidator are) would misuse that number, I suppose there is some basis for permitting some redaction. However, Mr Golledge of Counsel, for the plaintiffs, submitted that the last four numbers should not be redacted. He pointed out that the statements produced were incomplete. He said that his clients wished to make application to the relevant financial institutions. To do that, he said, all they would need would be the last four numbers.
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In those circumstances, it seems to me that the redaction of the credit card details should be only as to the first 12 of the 16 numbers, and not as to the last four numbers.
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Ms Smith's amended notice of motion raised also the question of serving further evidence. Since that is not contentious, it is appropriate that leave should be given.
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It follows that the substance of Ms Smith's amended notice of motion - seeking to set aside the notice to produce by which the plaintiffs sought to require production of unredacted copies of the documents in question - fails. The only compromise is that Ms Smith should be permitted to redact the credit card statements by deleting, as I have said, the first 12 but not the last four numbers of the credit card account number. With those redactions, the documents are to be produced to the plaintiffs' solicitors by 5pm on 15 September 2016.
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I direct that the documents so produced are to be kept confidential to the plaintiffs' legal advisers and to the second plaintiff, and not to be disclosed by them to any other person without the leave of the Court.
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I reserve liberty to apply in the event that some employees of the liquidator require access to the documents in question.
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I grant the defendant leave to serve further affidavit evidence, with such affidavits to be served no later than 26 September 2016.
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The costs of the amended notice of motion are reserved to the trial judge.
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I abridge the time for production to 16 September 2016 but reserve liberty to the plaintiffs to apply in the event that they cannot physically comply with that date.
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The exhibits on the application are to be handed out.
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Decision last updated: 14 September 2016
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