Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd - [2020] NSWSC 670

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd [2020] NSWSC 670
Hearing dates: On the papers
Date of orders: 29 May 2020
Decision date: 29 May 2020
Jurisdiction: Equity - Expedition List
Before: Williams J
Decision:
Order that the notices to produce issued by the defendants on 11, 14 and 15 May 2020 be set aside.

Catchwords: PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to set aside certain notices to produce issued by defendants – where notices to produce do not seek specified documents or things but instead seek extremely broad categories of documents – where notices to produce seek production to both defendants and to the Court – notices to produce set aside
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 34.1, 34.2
Cases Cited: Azzi v Volvo [2006] NSWSC 283
Category: Procedural and other rulings
Parties: Overdean Developments Pty Ltd as trustee of the Dean Superfund (First Plaintiff/First Cross-Defendant)
Brian Dean (Second Plaintiff/Second Cross-Defendant)
B.A.D Nominees (NSW) Pty Ltd (Third Plaintiff/Third Cross-Defendant)
Garslev Holdings Pty Ltd (First Defendant/First Cross-Claimant)
Leonardus Gerardus Smits (Third Defendant/Third Cross-Claimant)
Peter Shah Mahommed (Fourth Defendant/Fourth Cross-Claimant)
Vestecorp Financial Services Pty Ltd (Fifth Defendant/Fifth Cross-Claimant)
Jacobus Smits (Sixth Defendant/Sixth Cross-Claimant)
Representation:
Counsel:
D Allen (Plaintiffs/Cross-Defendants)
L Smits, solicitor (Defendants/Cross-Claimants)
Solicitors:
Kekatos Lawyers (Plaintiffs/Cross-Defendants)
Leonardus Smits (Defendants/Cross-Claimants)

File Number(s): 2018/384191
Publication restriction: N/A

Judgment

This proceeding was commenced in December 2018 and listed for an expedited final hearing in May 2019.
The final hearing has been vacated on two occasions in circumstances that it is not necessary to detail in these reasons. The matter is now listed for final hearing before me, commencing on 22 June 2020.
On 8 May 2020, the defendants’ solicitor (who is also the third defendant and third cross-claimant in this proceeding) wrote to the Court referring to the fact that the matter had been listed for hearing commencing on 22 June 2020, and stating that the defendants intended to move on a Further Amended Notice of Motion filed in Court on 30 August 2019. In a subsequent email to the Court dated 18 May 2020, the defendants’ solicitor stated that the vacation of the hearing listed for 22 June 2020 in order to enable “final disposal of the interlocutory applications” in the Further Amended Notice of Motion “seems inevitable”.
At a directions hearing on 22 May 2020, I informed the parties that the final hearing listed to commence on 22 June 2020 would not be vacated. I made directions to facilitate the determination on the papers of the Further Amended Notice of Motion, and the determination on the papers of an application by the plaintiffs to set aside three notices to produce issued by the defendants, prior to the commencement of the final hearing on 22 June 2020.
Following those directions (albeit not strictly in accordance with the directions):

the plaintiffs sent to my Associate a notice of motion dated 25 May 2020 seeking…

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 670
Decision Date: 29 May 2020

CaseChat Overview and Summary

The matter involved an application by Overdean Developments Pty Ltd against Garslev Holdings Pty Ltd. The application sought to set aside certain notices to produce issued by the defendants. These notices were extremely broad in scope, seeking categories of documents without specifying particular documents or things. Additionally, the notices required production to both the defendants and the Court. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the notices to produce were valid. The Court had to consider whether the notices were too broad and therefore oppressive or vexatious, and whether they were appropriately tailored to the specific needs of the case. The Court also examined whether the notices, by requiring production to both the defendants and the Court, were procedurally sound.

The Court found that the notices to produce were overly broad and did not specify particular documents or things. The notices sought extremely wide categories of documents, which the Court deemed inappropriate and oppressive. Furthermore, the requirement for production to both the defendants and the Court was found to be irregular. Consequently, the Court set aside the notices to produce, finding them to be vexatious and not in accordance with the principles of fair procedure.

The Court ordered that the notices to produce issued by the defendants be set aside. The Court further directed that any future notices to produce issued by the defendants must be specific, narrowly tailored, and appropriate to the needs of the case. The Court's decision underscored the importance of specificity and fairness in the discovery process.

Orders