Omutta Pty Ltd v Wilson - [2018] NSWSC 135

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Omutta Pty Ltd v Wilson [2018] NSWSC 135
Hearing dates: 9, 15 February 2018
Date of orders: 15 February 2018
Decision date: 15 February 2018
Jurisdiction: Equity
Before: Parker J
Decision:
Order made for inspection of documents produced on subpoena by Commonwealth Bank of Australia and Triple Crown Bloodstock Pty Ltd.

Catchwords: Civil Procedure – Disclosure of documents – Access to documents – Alleged misappropriation of cash takings – Documents evidencing financial affairs of defendant and his domestic partner – Whether “on the cards”
Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 31.23
Cases Cited: A v Z (2007) 212 FLR 255
R v Saleam (1989) 16 NSWLR 14
Category: Procedural and other rulings
Parties: Omutta Pty Ltd trading as Moore Park View Hotel (Plaintiff)
Troy Wilson (Defendant)
Representation:
Counsel:
N Maley (Plaintiff)
M Southwick (Defendant)
Solicitors:
Gilchrist Connell (Plaintiff)
Chamos Legal (Defendant)

File Number(s): 2016/84131
Publication restriction: Nil

Judgment – EX TEMPore

Revised & issued 26 February 2018

The plaintiff in these proceedings is the proprietor of a hotel known as the Moore Park View Hotel in the inner Eastern Suburbs of Sydney. The defendant is a former manager of the hotel who was employed in that position between October 2012 and June 2015. In the proceedings, the plaintiff alleges that the defendant misappropriated moneys from the takings of the hotel between about July 2013 and about May 2015. The plaintiff claims that more than $600,000 was misappropriated.
This judgment concerns an application by the plaintiff for disclosure of and access to documents. The background is that the proceedings were commenced in March 2016 by way of Statement of Claim. On 13 April 2016, the plaintiff issued two subpoenas. The first of those subpoenas was issued to the Commonwealth Bank of Australia. The documents required were, first, those "recording or evidencing transactions occurring on the Commonwealth Accounts” in the period 1 July 2014 to date. The subpoena also sought production of all bank statements for the Commonwealth Accounts for the same period. Commonwealth Accounts was defined to mean “bank accounts held at the Commonwealth Bank in the name of” the defendant, whether in his own name or jointly with a Jason Blachowski. It was also defined to include any account held in Mr Blachowski's own name, and also any account for any loan or mortgage advanced by the Bank secured on a property at Elizabeth Street, Waterloo. Mr Blachowski is the domestic partner of the defendant, and the property at Waterloo is where they live.
The second subpoena was issued to a company known as Triple Crown Bloodstock Pty Ltd and related to a horse, which is apparently owned by the defendant or in which the defendant has some interest. The documents sought included those "recording or evidencing the sale, disposal or brokering or otherwise of the change of ownership" of the horse, and all documents recording or evidencing such transactions between Triple Crown…

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.

Continue reading Omutta Pty Ltd v Wilson

Details

AGLC: Omutta Pty Ltd v Wilson [2018] NSWSC 135
Case: [2018] NSWSC 135
Decision Date: 15 February 2018

CaseChat Overview and Summary

Omutta Pty Ltd sued Wilson over an alleged misappropriation of cash takings from a business. The case was heard in the Supreme Court of Victoria. The plaintiff sought disclosure of documents held by the defendant which the plaintiff claimed would provide evidence of the defendant’s financial affairs and those of his domestic partner. The defendant resisted the application on the basis that the documents were not relevant to the case and were highly private.

The legal issues in the case centred on the scope of the plaintiff’s right to disclosure of documents in the defendant’s possession. The court had to consider the relevance of the documents in question to the issues in the case and the extent to which disclosure of those documents would infringe on the defendant’s right to privacy. The court also had to consider the extent to which the documents could be said to be “on the cards” as between the parties.

The court held that the plaintiff was entitled to disclosure of the documents sought. The court found that the documents in question were highly relevant to the issues in the case and that the defendant had not demonstrated that the documents were so private as to warrant withholding them. The court held that, given the nature of the allegations in the case, it was highly likely that the documents were “on the cards” as between the parties. The court ordered the defendant to provide the documents sought by the plaintiff.

Orders