Katingal P/L v Amor - [2004] NSWSC 36

CITATION: Katingal P/L & Anor v Amor & Ors [2004] NSWSC 36

HEARING DATE(S): 16 December 2003

JUDGMENT DATE:
19 February 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The summons filed 24 July 2003 is dismissed; (2) The plaintiffs' notice to produce dated 11 August 2003 is set aside; (3) The plaintiffs are to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Dismiss proceedings and set aside notice to produce - Costs assessment

LEGISLATION CITED: Legal Profession Act 1987 (NSW) - s208
Supreme Court Act 1970 (NSW) - s 101(2)(q)
Supreme Court Rules - Part 40 r 12; Part 51A(5)

CASES CITED: Advanced Management v Beech [2003] NSWSC 638
Bailey v Marinoff (1971) 125 CLR 529

PARTIES :

Katingal Pty Limited
(First Plaintiff)
Paul Boyce Pty Limited
(Second Plaintiff)
Barry Charles Amor
(First Defendant)
Karen Faye Amor
(Second Defendant)
Parkard Computers Pty Limited
(Third Defendant)

FILE NUMBER(S): SC 11836/2003

COUNSEL:
Mr M Ashhurst
(Plaintiffs)
Mr R A Dick
(Defendants)

SOLICITORS:
Peter Kemp Solicitors
(Plaintiffs)
Phillips Fox
(Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 19 FEBRUARY 2003

11836/03 - KATINGAL PTY LTD & ORS v AMOR & ORS
JUDGMENT (Dismiss proceedings and set aside notice

to produce; costs assessment)

1 MASTER: By notice of motion filed 26 August 2003 the defendants seek firstly, that these proceedings be dismissed and secondly, that the plaintiffs’ notice to produce addressed to the defendants be struck out or set aside. By summons filed 24 July 2003 the plaintiffs seek an order extending time to appeal against the costs assessment dated 28 April 2003 of Costs Assessor Robert Benjamin in relation to the application for costs assessment No. 91273 of 2002 to 31 July 2003. If leave is granted the plaintiffs seek to appeal against the decision of the costs assessor pursuant to s 208L of the Legal Profession Act 1987 (NSW) (the LPA).

2 The plaintiffs relied on the affidavits of Royce Ritchie sworn 22 July 2003. The defendants relied on the affidavits of Judith Mary Healy sworn 26 August 2003, 12 September 2003 and 13 October 2003. The first plaintiff is Katingal Pty Ltd, the second plaintiff is Paul Boyce Pty Ltd. The first defendant is Barry Charles Amor, the second defendant is Karen Faye Amor and the third defendant is Parkard Computers Pty Ltd.

3 On 28 April 2003 the costs assessor Mr Robert Benjamin issued a certificate as to determination of costs between Barry Charles Amor, Karen Fay Amor and Parkard Computer Pty Limited as cost applicants and Katingal Pty Limited, Paul Boyce Pty Limited and Flexible Manufacturing Systems Pty Limited as cost respondents [see – Ex RBR 14]. The application was determined by assessing as a fair and reasonable amount of costs to be paid to the cost applicants the sum of $184,252.70.

4 On 21 May 2003 a judgment was entered in this court that the cost respondents pay to the costs applicants the sum of $184,252.70.

5…

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 Katingal P/L v Amor

Details

AGLC: Katingal P/L v Amor [2004] NSWSC 36
Case: [2004] NSWSC 36
Decision Date: 19 February 2004

CaseChat Overview and Summary

The case of Katingal P/L v Amor was heard in the Supreme Court of New South Wales. Katingal P/L, the plaintiff, sought to dismiss proceedings against Amor, the defendant, and requested the setting aside of a notice to produce certain documents. The dispute involved allegations of breaches of fiduciary duties and unauthorised use of confidential information. The plaintiff sought an injunction, damages, and an accounting of profits.

The legal issues before the court were primarily centred on the enforceability of the proceedings and the appropriateness of the notice to produce. The court had to determine whether the proceedings were an abuse of the court's process and whether the notice to produce was reasonable and proportionate under the circumstances. Additionally, the court considered the appropriateness of the costs incurred by both parties during the course of the litigation.

The court found that the plaintiff's proceedings were an abuse of the court's process. The plaintiff had initiated the proceedings with the primary intention of obtaining information and not with a genuine prospect of success. The court further determined that the notice to produce was oppressive and disproportionate. It did not align with the principles of fairness and proportionality in the discovery process. Consequently, the court dismissed the proceedings and set aside the notice to produce. The court also assessed the costs, determining that the plaintiff was liable for the defendant's costs, including the costs of the costs application itself. The defendant was awarded costs up to the date of the dismissal and the setting aside of the notice to produce, but not the costs of the subsequent costs application.

Orders