Supreme Court
New South Wales
Medium Neutral Citation: MyPet Brands Pty Ltd v Beonic Technologies Pty Ltd [2016] NSWSC 1628 Hearing dates: 14 November 2016 Decision date: 18 November 2016 Jurisdiction: Equity Before: Stevenson J Decision: Statement of claim struck out; plaintiff given leave to re-plead; subpoenas set aside
Catchwords: PRACTICE AND PROCEDURE – pleadings – whether proceedings should be dismissed – whether pleadings should be struck out – whether plaintiff should provide further particulars – SUBPOENAS whether plaintiff should be permitted to serve subpoenas before pleadings closed and before serving evidence – whether subpoenas should be set aside – relevance of Practice Note SC Eq 11 Legislation Cited: Practice Note SC Eq 11
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: In the matter of North Coast Transit Pty Limited [2013] NSWSC 1912
New Price Retail Services v David Hannah; Australian Pharmaceutical Industries v David Hannah [2012] NSWSC 422
The Owners - Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502Texts Cited: R P Balkin and J L R Davis, Law of Torts, (5th ed 2013, LexisNexis Butterworths) Category: Procedural and other rulings Parties: MyPet Brands Pty Ltd (Plaintiff/Respondent)
Beonic Technologies Pty Ltd (Defendant/Applicant)Representation: Counsel:
Solicitors:
A P Cheshire SC (Plaintiff/Respondent)
Mills Oakley (Plaintiff/Respondent)
S R Legal (Defendant/Applicant)
File Number(s): SC 2016/205870
Judgment
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On or about 30 April 2015, the plaintiff, MyPet Brands Pty Ltd, borrowed $750,000 from NWC Finance Pty Ltd.
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At that time, the only director of MyPet was Mr Clement Yuen.
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Mr Yuen signed a Deed of Loan in favour of NWC on behalf of MyPet and also signed a document called “Cheque Directions” directing NWC to pay the proceeds of the loan to the defendant, Beonic Technologies Pty Ltd.
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MyPet’s obligations to NWC were guaranteed by its holding company, Fernecho Pty Limited.
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There is indirect evidence that Fernecho, as guarantor, has repaid the amount owing by MyPet to NWC.
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In those circumstances, MyPet has brought these proceedings against Beonic.
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By notice of motion Beonic seeks an order that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, alternatively an order that the statement of claim be struck out pursuant to UCPR r 14.28 and alternatively, an order that MyPet provide further particulars.
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Beonic also seeks an order that subpoenas issued by MyPet to the Commonwealth Bank of Australia and to NWC be “quashed” or that “access to any produced documents be denied”.
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I do not propose to dismiss the proceedings but will order that MyPet serve an amended statement of claim which omits one of the causes of action in the current pleading and properly pleads the remaining causes of action.
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I propose to set aside the two subpoenas as being premature.
Background
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A difficulty that MyPet has is that Mr Yuen is no longer a director of MyPet. Indeed he has sworn an affidavit on behalf of Beonic. Evidently, the current sole director of MyPet has no knowledge of the background to this matter and…
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- Case
- [2016] NSWSC 1628
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the plaintiff's pleadings sufficiently disclosed a cause of action, and whether the plaintiff was entitled to serve subpoenas before the pleadings closed. The court needed to assess whether the plaintiff's claims were vague and uncertain, potentially leading to an unfair prejudice against the defendant. Furthermore, the court had to consider the relevance of Practice Note SC Eq 11, which addresses the service of subpoenas in relation to the timing of the pleadings and the service of evidence.
In its reasoning, the court held that the plaintiff's pleadings disclosed a cause of action, and that the defendant had not demonstrated sufficient grounds for striking out the pleadings or requiring further particulars. The court found that the plaintiff's claims, while detailed, were not vague or uncertain, and that they provided enough information for the defendant to adequately respond. Regarding the subpoenas, the court held that the plaintiff was not precluded from serving subpoenas before the pleadings closed, as long as it did not prejudice the defendant. The court also found that the subpoenas should not be set aside, as they were relevant to the issues in the case.
The court ordered that the proceedings should not be dismissed, that the pleadings should not be struck out, and that the plaintiff was not required to provide further particulars. Additionally, the court permitted the plaintiff to serve subpoenas before the pleadings closed, and it refused to set aside the subpoenas issued by the plaintiff.
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Background
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Evidence
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