Pico Holdings Inc v Voss - [2002] VSC 269

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7324 of 2001

PICO HOLDINGS INC.

Plaintiff

PETER DAVID VOSS

and

NATIONAL AUSTRALIA BANK LIMITED

Defendant

Intervening

(ACN 004 044 937)

---

JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 June 2002
DATE OF JUDGMENT:	5 July 2002
CASE MAY BE CITED AS:	Pico Holdings Inc. v Voss and NAB Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 269

---

Subpoena – production to Prothonotary – objections – Rule 42.10 – irrelevant material – claim of legal professional privilege.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Pearce	Herbert Geer & Rundle
For the Defendant	Mr J. Styring	Mallesons Stephen Jaques
For National Bank	Mr A. Schlicht	Russell Kennedy

HIS HONOUR:

This is an appeal from Master Kings who set aside a subpoena requiring a non-party to the proceeding, the National Australia Bank Limited ("the Bank"), to produce documents to the Prothonotary pursuant to Rule 42.10 of the Rules of Court.

The appeal is a re-hearing de novo.

To understand the issues, it is necessary to go back in time.

On 29 August 2001, the plaintiff, Pico Holdings Inc. ("the plaintiff"), issued a writ against Peter David Voss ("Mr Voss"). It is alleged that the plaintiff lent a sum of US$2M to a company, Dominion Capital Pty Ltd, which was controlled by Mr Voss. It is alleged that certain representations were made by Mr Voss concerning the security to be provided, which were false. As a result, the loans have not been repaid and the plaintiff claims damages.

On 5 September 2001, the plaintiff made application to the Court seeking a Mareva injunction, and on that day, Beach J ordered, inter alia –

"4.Until the final hearing and determination of this proceeding or further order, the defendant whether by himself, his servants or agents, shall be restrained from disposing of, or dealing with, any of his assets other than for normal living expenses or payment of legal fees in relation to the defence of this proceeding up to a maximum of $5,000 per week."

On 3 December 2001, Mr Voss swore an affidavit in a Federal Court proceeding. In the affidavit, he swore that he owned a property in North Road, Brighton, that the property was sold "some months ago" and that earlier that day, namely, 3 December 2001, he had paid the sale proceeds of over $2M to the National Australia Bank Ltd.

The plaintiff’s solicitors wrote to the Bank seeking details of the sale and disbursement of the proceeds and on 18 December 2001, the Bank responded in writing as follows –

"The Bank was due the amounts received at settlement of the 7 North Road, Brighton property owned by Mr and Mrs Peter Voss due to the existence of an all monies mortgage executed by the owners upon acquisition of the relevant security property.
The all monies mortgage secured the following facilities, which were repaid…

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.

Keep reading for free

Create a free CaseChat account to read Pico Holdings Inc v Voss and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSC 269
Decision Date: 5 July 2002

CaseChat Overview and Summary

In the matter of Pico Holdings Inc against Voss, the court was tasked with resolving a dispute concerning the production of documents pursuant to a subpoena. The subpoena was issued as part of litigation between the parties, requiring the respondent to produce certain documents to the Prothonotary of the court. Pico Holdings objected to the production of certain materials on the grounds of irrelevance and claimed legal professional privilege. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the documents in question were relevant to the proceedings and, if so, whether they were protected by legal professional privilege. The respondent argued that some of the documents were irrelevant and privileged, while Pico Holdings contended that all documents were relevant and not privileged. The court needed to determine the applicability of Rule 42.10 of the Supreme Court Rules, which governs the production of documents to the Prothonotary, and assess the merits of the privilege claim.

The court examined the relevance of the documents to the proceedings and considered whether the privilege claimed was valid. It found that some of the documents were indeed relevant and that the claim of privilege was not substantiated. The court held that the respondent was required to produce the documents to the Prothonotary, subject to redaction of any irrelevant or privileged material. The objections were dismissed, and the subpoena was enforced.

The court ordered the respondent to produce the relevant documents to the Prothonotary, with any irrelevant or privileged content redacted. The respondent was directed to file an affidavit of compliance within a specified timeframe.

Orders