McGrath v HNSW Pty Limited (No 2)

In the matter of McGrath v HNSW Pty Limited (No 2), the applicants sought an order to set aside a notice to produce documents issued by the respondents. The notice sought the production of documents mentioned in a valuation report prepared by KPMG dated 26 October 2012. The applicants argued that the notice was an abuse of process and constituted an impermissible substitute for an application for further discovery. The applicants further argued that the documents were irrelevant to the dispute concerning the loss suffered as a result of the restructure of the McGrath group. The legal issues before the court were whether the notice to produce was an abuse of process and whether the documents sought satisfied the apparent relevance test.

The court found that the notice to produce was not an abuse of process. The notice sought the production of 13 specified documents, which was not oppressive in scope. The court also rejected the contention that an application for further discovery was the only appropriate application in this case. The court held that the notice to produce was an appropriate and convenient tool to seek the production of documents which the applicants were not willing to produce voluntarily. The court further held that the question of relevance was a matter of degree and that the documents sought had apparent relevance to the question of the loss, if any, suffered by the applicants as a result of the restructure transaction.

The court dismissed the application to set aside the notice to produce with costs and ordered that the notice to produce be made returnable on 11 June 2015 at 9.30 am.