NSW Environmental Trust v Nguyen

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Environmental Trust v Nguyen [2020] NSWSC 1069

Hearing dates:

10 August 2020

Date of orders:

14 August 2020

Decision date:

14 August 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Motion dismissed;

(2)   The defendant shall pay the plaintiff’s costs of and incidental to the Motion.

Catchwords:

CIVIL PROCEDURE – Subpoenas – Notices to Produce – Application to set aside – adjectival relevance – fishing – objection dismissed – production required

Legislation Cited:

Corporations Act 2001 (Cth)

Cases Cited:

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432; [1997] FCA 1504

Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1245

Mackintosh v The Commissioner of Police (NSW) [2010] NSWSC 1064

McLachlan v Whelan Browne [2019] NSWSC 514

Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361

R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86

Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; [2006] AATA 109

Sharpe v Grobbel [2017] NSWSC 1065

The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 364

Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; [1989] FCA 340

Texts Cited:

Peter Taylor SC et al, Ritchie's Uniform Civil Procedure NSW (2005, LexisNexis Australia)

Category:

Procedural and other rulings

Parties:

NSW Environmental Trust (Plaintiff/Respondent)
David Duc Van Nguyen (Defendant/Applicant)

Representation:

Counsel:
I King (Plaintiff/Respondent)
G Gee (Defendant/Applicant)

Solicitors:
Department of Planning, Industry and Environment (Plaintiff/Respondent)
Deutsch Miller (Defendant/Applicant)

File Number(s):

2020/53871

Judgment

1. HIS HONOUR: The Court is required to deal with a Motion seeking to set aside various categories of documents sought pursuant to two Notices to Produce and 13 Subpoenas. The Motion is the subject of a Further Amended Notice of Motion filed in Court on 10 August 2020 and the defendant seeks to set aside the categories of documents sought by the plaintiff.

2. The plaintiff, NSW Environmental Trust, operates a grant program to support innovative recycling projects. The defendant, David Duc Van Nguyen, also known as “David Newan”, was, for all relevant periods, the sole Director of Apeclinks Pty Ltd (hereinafter “Apeclinks”), which was a company which applied for a grant under the program operated by the plaintiff. The defendant completed a Grant Application Form, on behalf of Apeclinks, for the purpose of obtaining funding from the plaintiff for a program, being a project involving the recycling of vehicle tyres (hereinafter “the Project”).

3. In its pleadings, the plaintiff alleges that the defendant made a number of express written false representations (hereinafter “the Grant Representations”) to the plaintiff in the application by Apeclinks for the grant. The application was executed on 16 July 2015 and the pleaded Grant Representations include that:

1. Apeclinks intended to establish the Project;

2. Apeclinks had identified a suitable location for the Project and was negotiating the terms of the lease;