NHB Enterprises Pty Ltd v Corry (No 4) - [2020] NSWSC 426

Supreme Court

New South Wales

Medium Neutral Citation: NHB Enterprises Pty Ltd v Corry (No 4) [2020] NSWSC 426
Hearing dates: 20 April 2020
Date of orders: 21 April 2020
Decision date: 21 April 2020
Jurisdiction: Equity
Before: Williams J
Decision:
Leave to issue subpoenas to Christopher Athanassios and Daniel McKinnon granted. Leave to issue subpoena to Leanne Balit refused.

Catchwords: PRACTICE AND PROCEDURE – subpoenas – unrepresented litigants – application for leave to issue three subpoenas pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.3 – whether subpoenas sought to be issued have a legitimate forensic purpose or not otherwise liable to be set aside – leave granted to issue two subpoenas – leave refused to issue third subpoena
Legislation Cited: Supreme Court Rules 1970 (NSW), Part 55
Uniform Civil Procedure Rules 2005 (NSW), r 7.3
Cases Cited: Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115
Texts Cited: J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Alexander Stephen Corry (Applicant/First Defendant)
Representation: Counsel:
A Corry (In person) (Applicant/First Defendant)

File Number(s): 2019/54125
Publication restriction: N/A

Judgment

Procedural background

By Amended Notice of Motion filed on 20 December 2019 and an Amended Statement of Charge in Annexure “A” to that Amended Notice of Motion, the plaintiffs seek declarations that the first defendant and two other respondents to that Notice of Motion are in contempt of court, and an order that they be punished for the alleged contempt (the Contempt Motion).
The Contempt Motion has been listed for hearing to commence on 29 April 2020.
The first defendant is not represented by a solicitor in this proceeding, and has made various applications under r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for leave to issue subpoenas. The first defendant says that he wishes to issue the subpoenas for the purpose of obtaining evidence relevant to the Contempt Motion.
As the first defendant is the applicant under UCPR r 7.3 and also the first respondent to the Contempt Motion, it is convenient to refer to him in these reasons as Mr Corry. Many of the allegations that are the subject of the Contempt Motion also involve alleged conduct of the fifth defendant in this proceeding, who is also the third respondent to the Contempt Motion. It is convenient to refer to the fifth defendant as Mr Ghaly. The second respondent to the Contempt Motion, Boriana Corry, is not a defendant to this proceeding. These reasons will refer to her as Mrs Corry.
The matter was listed before me on 16 April 2020 for the hearing of those applications and for the hearing of a notice of motion filed by the first defendant on 7 April 2020. On that occasion, Mr Corry stated that he no longer wished to press all of his applications under UCPR r 7.3, and was not…

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: [2020] NSWSC 426
Decision Date: 21 April 2020

CaseChat Overview and Summary

NHB Enterprises Pty Ltd brought an application for leave to issue three subpoenas to Corry in the Supreme Court of New South Wales. The applicant sought the subpoenas to obtain documents from Corry in the course of proceedings related to a contractual dispute. Corry, who appeared unrepresented, opposed the application on the basis that the subpoenas did not have a legitimate forensic purpose or were otherwise liable to be set aside. The court was required to determine whether the subpoenas sought to be issued had a legitimate forensic purpose and were not otherwise liable to be set aside.

The court considered the purpose of the subpoenas and whether they were necessary for the just determination of the proceedings. The court found that two of the subpoenas had a legitimate forensic purpose and were not otherwise liable to be set aside, and therefore granted leave for those subpoenas to be issued. The court found that the third subpoena did not have a legitimate forensic purpose, and was therefore liable to be set aside. The court refused leave to issue the third subpoena.

The court ordered that leave be granted to issue two subpoenas and that leave be refused to issue the third subpoena. The court did not make any orders as to costs.

Orders