Kaji Australia Pty Ltd v Glover (No. 3)

[2018] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation:

Kaji Australia Pty Ltd v Glover (No. 3) [2018] NSWSC 906

Hearing dates:

15 June 2018

Date of orders:

15 June 2018

Decision date:

15 June 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Westpac’s Notice of Motion dated 1 June 2018 granted re subpoenas and otherwise dismissed.
2. Defendant/cross-claimant’s Notice of Motion dated 31 May 2018 dismissed with no order as to costs.
3. Leave to defendant/cross-claimant to issue further subpoena as agreed in Short Minutes of Order dated 15 June 2018.
4. Each party to pay their own costs of Westpac’s Notice of Motion dated 1 June 2018.

 

CONSENT ORDERS:
1. Subpoena to produce filed 4 October 2017 is set aside.
2. Paragraph 3(d) and 4 of the subpoena to produce dated 8 February 2018 is set aside.
3. Leave is granted to the defendant/cross-claimant to issue a fresh subpoena to produce to Westpac Banking Corporation seeking production of the following documents:

 (i) any investigation undertaken by the Bank as to whether Mr Hanna issued any loan approvals to third parties without internal credit approval;
(ii) any investigation undertaken by the Bank in relation to any misconduct by Mr Hanna involving transactions in connection with the fourth or fifth cross-defendant; and
(iii) Any communications issued by the Bank to Mr Hanna which record the formal allegations of serious misconduct made by the Bank against him which led to his dismissal.

Catchwords:

PROCEDURE – costs – where matter settled – motions regarding subpoenas – each party to pay its own costs

Legislation Cited:

Nil

Cases Cited:

Re Minister for immigration and Ethnic Affairs; Exp Lai Qin (1997) 186 CLR 622

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Johann Benson Glover (Defendant/Cross-Claimant)
Westpac Banking Corporation (Applicant)

Representation:

Counsel:
R Newell (Defendant/Cross-Claimant)
D F Elliot (Westpac Banking Corporation)

  Solicitors:
L. C. Muriniti & Associates (Defendant/Cross-Claimant)
HWL Ebsworth Lawyers (Westpac Banking Corporation)

File Number(s):

2014/105767

Publication restriction:

Nil

Judgment

1. Two subpoenas were issued by the legal advisers of the defendant, Mr Glover, to St George Bank; the first on 4 October 2017 and the second on 8 February 2018. After the service of the first subpoena, the bank produced some documents, but not enough documents to satisfy Mr Glover's advisers. A further subpoena was issued on 8 February, which more particularly set out the categories of the documents that were required in relation to Mr Hanna and matters associated with his alleged involvement in an application for finance to St George Bank.

2. Thereafter, the parties engaged in lengthy correspondence. At least by 10 April 2018, the solicitors for Mr Glover set out the basis of their claim against the third cross-defendant, Mr Nicholson, who was alleged to be involved with Mr Hanna. More detail was later provided. At some stage a proposed amended cross-claim, setting out the latest version of the claim against Mr Nicholson, was provided. After further requests, the defences that had been filed to the pleadings to that date were provided.

3. The parties reached an impasse about the provision of documents, which led to the filing of a notice of motion by Mr Glover on 31 May that St George should comply with the subpoenas; and a motion by Westpac (which had acquired St George Bank) on 1 June 2018, asking that both subpoenas be set aside.

4. The parties have now come to a very sensible agreement in relation to the two subpoenas, including refining the categories of documents which the bank sees appropriate to be requested of it. In the circumstances, the bank asks for its costs of its notice of motion, it being accepted that the notice of motion filed by Mr Glover should simply be dismissed.

5. The bank points to the fact that it is not a party to the proceedings but a third party, and has expended considerable time and expense in dealing with the subpoenas and matters related to it. I accept that that is so, although the bank is entitled in any event to be compensated for its reasonable costs of complying with the subpoena. By the time the notices of motion were filed, the bank was fairly fully informed about how Mr Hanna was said to have been involved in the issues between the parties to the proceedings, including being provided with the pleadings.

6. Both parties appear, by the terms of the agreement, to have had partial success on the motions. I bear in mind what McHugh J said in Re Minister for immigration and Ethnic Affairs; Exp Lai Qin (1997) 186 CLR 622 at 624-625 that the court cannot try a hypothetical action between the parties where a settlement has been reached but costs are sought. McHuch J also said (at 625):

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

7. I think in all of those circumstances the fairest outcome in relation to the settlement is that each party should pay their own costs of Westpac's notice of motion of 1 June 2018.

8. I will make the orders set out in the Short Minutes of Order. Westpac's motion is otherwise dismissed. The motion filed by Mr Glover on 31 May 2018 is dismissed with no order as to costs.

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Decision last updated: 18 June 2018