Land and Environment Court
New South Wales
Medium Neutral Citation: Joseph v Spencer (No 2) [2021] NSWLEC 130 Hearing dates: 29 October and 11 November 2021 Date of orders: 11 November 2021 Decision date: 11 November 2021 Jurisdiction: Class 2 Before: Moore J Decision: See orders at [8]
Catchwords: SUBPOENA - subpoena to produce documents - inadequate compliance - further orders for compliance - whether orders for costs of attendance to explain non-compliance and for further cost of compliance appropriate - costs orders not appropriate
Cases Cited: Category: Procedural rulings Parties: Michael Joseph (Applicant)
Ricardo Spencer (First Respondent)
Jennifer Spencer (Second Respondent)Representation: Counsel:
Mr M Joseph (in person - Applicant)
Ms J Spencer (Second Respondent in person and agent for the First Respondent)
File Number(s): 174119 of 2021 Publication restriction: No
EXTEMPORE Judgment
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HIS HONOUR: The Applicant in these proceedings, Mr Joseph, filed a Subpoena to Produce with the Court on 22 July 2021 addressed to the Proper Officer of Rabebi Pty Ltd trading as PRD Architects. The issuing of that subpoena and its validity was affirmed by me as a consequence of proceedings which subsequently took place (Joseph v Spencer [2021] NSWLEC 99, at Annexure B(1)].
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The subpoena required the production of documents in response to items that were listed in the schedule to the subpoena on pages 3 and 4 of that document. Material was provided to the Court, a list of which was appended to Mr Joseph’s affidavit of 6 October 2021, at folio 31, listing the subpoena response packet downloads. Mr Joseph was not satisfied with that response and believed it to be inadequate and to be incomplete. He subsequently applied to me for leave to issue a subpoena to Mr Peter Rasa, the principal of the firm.
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On 29 October 2021, Mr Joseph sought leave from me, which I granted, to issue a subpoena to Mr Rasa to attend and give evidence. Mr Joseph did so in response to an affidavit which had been deposed by Mr Rasa in response to directions made by Duggan J as to production. That affidavit was affirmed on 25 October 2021 and has been read in these proceedings by me this morning.
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I have had Mr Rasa give evidence and be cross‑examined by Mr Joseph concerning the extent to which the recipient of the subpoena, being the Proper Officer of Rabebi Pty Ltd trading as PRD Architects, has responded to the terms of the subpoena.
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I am satisfied, on the basis of the evidence given by Mr Rasa this morning, that there has been non‑compliance with the terms of the subpoena and that that non‑compliance was occasioned by Mr Rasa forming opinions, based on his professional experience as an architect, as to what documents he was or was not required to produce to the Court pursuant to that subpoena and as to what documents he considered were or were not relevant to matters in dispute in these tree dispute…
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- AGLC
- Joseph v Spencer (No 2) [2021] NSWLEC 130
- Case
- [2021] NSWLEC 130
- Decision Date
CaseChat Overview and Summary
The court began by reviewing the previous decision's findings and the evidence presented. It was noted that Joseph had executed a transfer of his interest in the property to Spencer, but Joseph argued that the transfer was invalid due to fraud or misrepresentation. The court examined the evidence of the circumstances surrounding the transfer, including the relationship between the parties and the actions taken by both. The court concluded that there was insufficient evidence to support Joseph's claims of fraud or misrepresentation, and therefore upheld the previous decision that the transfer was valid. Consequently, the appeal was dismissed, and the orders made in the original decision were confirmed.
Orders
Orders of the court
See orders at [8]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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