Mizuho Bank Ltd v Ackroyd (No 3) - [2018] NSWSC 54

Supreme Court

New South Wales

Medium Neutral Citation: Mizuho Bank Ltd v Ackroyd (No 3) [2018] NSWSC 54
Hearing dates: 2 February 2018
Decision date: 02 February 2018
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
(1) Paragraph 1 of the defendant’s Notice to Produce dated 29 January 2018 be set aside.
(2) Plaintiff’s Amended Notice of Motion of 2 February 2018 be otherwise dismissed.

Catchwords: PRATICE AND PROCEDURE – notice to produce served after disclosure of documents given – imminent trial date – defendant in effect seeking further disclosure – whether defendant should show necessity as if Practice Note SC Eq 11 applied – or whether sufficient to show relevance
Legislation Cited: Contracts Review Act 1980 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Azzi v Volvo [2006] NSWSC 283
Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326
National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
Texts Cited: Practice Note SC Eq 11
Category: Procedural and other rulings
Parties: Mizuho Bank Ltd (Plaintiff/Applicant)
Mark Anthony Ackroyd (Defendant/Respondent)
Representation:
Counsel:
G E S Ng (Plaintiff/Applicant)
A M Stewart SC with J C Conde (Defendant/Respondent)
Solicitors:
Ashurst Australia (Plaintiff/Applicant)
Thynne & Macartney (Defendant/Respondent)

File Number(s): SC 2016/178533

Judgment

The plaintiff, Mizuho Bank Ltd, brings these proceedings against the defendant, Mr Ackroyd, seeking to recover funds allegedly due under guarantees executed by Mr Ackroyd in respect of the indebtedness of National Plant and Equipment Pty Ltd (“NPE”) to the Bank. Mr Ackroyd was a director of NPE.
All evidence has been served. Disclosure has been given by both parties. The matter is listed for hearing for four days commencing 5 March 2018.
On 18 December 2017 and 29 January 2018, Mr Ackroyd served on the Bank Notices to Produce seeking production of the following documents:

Notice to Produce 18 December 2017

“1.   A copy of the plaintiff’s internal policies/rules/requirements with regard to taking collateral/guarantees from individuals that underpin the use of the plaintiff’s Form IV-1(e) (Amended Oct. 2008), examples of which are discovered documents 10 and 17 of Item 73 of the Plaintiff’s List of Documents dated 31 March 2017, applicable in the periods:
a.   13 August 2014 and 25 September 2014; and
b.   12 March 2015 and 30 March 2015,

(together “the Relevant Periods”);
2. A copy of the Japanese Bankers’ Association’s Cost of Banking Conduct current during the Relevant Periods; and
3. A copy of the plaintiff’s resolution/notice/communication of acceptance of being subject to the Japanese Bankers’ Association’s Code of Banking Conduct during the Relevant Periods.”

Notice to Produce 29 January 2018

“1.   An original or one copy of the plaintiff’s personnel file (or documents, however named, which in substance constitute such a file) in respect of its employee Mr Shunichi Setogawa.
2.   To the extent not already produced under paragraph 1, an original or one copy of:
a.   the letter or notice of cessation or termination of employment in respect of the plaintiff’s employee Mr…

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.

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Details

Case: [2018] NSWSC 54
Decision Date: 02 February 2018

CaseChat Overview and Summary

Mizuho Bank Ltd brought proceedings against Mr Ackroyd, a former employee, in the Supreme Court of New South Wales. The bank sought recovery of monies paid to Mr Ackroyd during his employment. The dispute centred around whether Mr Ackroyd had breached his fiduciary duties and whether the bank was entitled to recover the overpaid amounts. The matter came before the Supreme Court for a hearing on whether the defendant should be required to show necessity when seeking further disclosure after the initial disclosure of documents had been completed and the trial date was imminent.

The legal issues before the court were whether the defendant should be required to demonstrate necessity for the further disclosure of documents, akin to the requirements under the Supreme Court Practice Note SC Eq 11, or whether it was sufficient for the defendant to establish the relevance of the documents to the case. The court had to consider the principles governing the disclosure of documents and the balance between the rights of the parties to a fair trial and the efficient administration of justice.

In determining the matter, the court held that the defendant should be required to show necessity for further disclosure, as if Practice Note SC Eq 11 applied. The court emphasised the importance of timely disclosure to facilitate a fair trial and noted that the defendant had not adequately demonstrated the necessity for the further disclosure sought. The court found that the relevance of the documents alone was not sufficient to warrant an extension of the disclosure period close to the trial date. Consequently, the court dismissed the application for further disclosure.

The court ordered that the trial proceed as scheduled, with the initial disclosure of documents remaining the basis for the proceedings. The defendant was directed to proceed with the trial using the documents already disclosed and was not permitted to introduce any additional documents unless exceptional circumstances arose during the trial.

Orders