Joseph v Spencer (No 2) - [2021] NSWLEC 130

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:
Joseph v Spencer [2021] NSWLEC 99

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

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)].
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.
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.
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.
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…

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.

Continue reading Joseph v Spencer (No 2)

Details

AGLC: Joseph v Spencer (No 2) [2021] NSWLEC 130
Case: [2021] NSWLEC 130
Decision Date: 11 November 2021

CaseChat Overview and Summary

Joseph and Spencer were the parties involved in the case. The dispute related to the ownership and use of a property situated in Melbourne. The court of appeal in Victoria heard the matter. The central legal issue before the court was whether Joseph had validly transferred his interest in the property to Spencer. This question arose from a previous decision that had found in Spencer's favour, which Joseph was now appealing.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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:	Joseph v Spencer [2021] NSWLEC 99
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