1. Order that within 28 days the first defendant either: (a) provide to the plaintiff’s solicitor a copy of all books and records of the Otto Ekstein Family Trust remaining in his possession or the possession of any agent of his; or (b) produce such documents to the court. 2. Order that the plaintiff have leave to photocopy all documents produced to the court by the first defendant pursuant to order 1(b), and that such photocopying be undertaken within 21 days of the plaintiff’s solicitor being advised that the documents have been produced to the court. 3. Order that after the plaintiff has photocopied documents produced to the court pursuant to order 1(b) the documents so produced may be returned to the first defendant. 4. Order that the solicitors for the plaintiff and the first defendant make and keep a record of documents produced pursuant to order 1. 5. Order that by 20 July 2010 the first to sixth defendants give discovery in accordance with these reasons of the documents referred to in the Lists of Categories of Documents for Discovery by the First to Sixth defendants which are exhibit B on the application, and forthwith thereafter make the same available for inspection by the plaintiff. 6. Order that the plaintiff’s amended notice of motion filed on 19 April 2007 and the plaintiff’s interlocutory process filed on 31 March 2010 be otherwise dismissed. 7. Stand over proceedings to 23 August 2010 before the Corporations List Judge for directions. 8. Liberty to restore before the Corporations List judge in the Monday Corporations List on seven days’ notice. 117 My prima facie view is that costs of the applications be costs in the proceedings. I give liberty to any party to apply within 7 days for a different costs order. The application may be made in writing to my associate accompanied by a submission as to the different costs order sought. Any such application and supporting submission is to be served on an affected party within the same period of 7 days. Within a further 7 days any affected party should provide to my associate (with a copy to the moving party) his, her or its submission in response and may at the same time make his, her or its own application for a different costs order with supporting submissions. Any submission in reply should be exchanged and provided to my associate within a further 7 days. If any different costs order is sought I will deal with the application or applications on the papers. If no application for a different costs order is made within 7 days as provided above, the costs of the applications are costs in the proceedings.
CATCHWORDS:
PRACTICE AND PROCEDURE – application for further discovery – no question of principle - PRACTICE AND PROCEDURE – application for…
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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AGLC
Power v Ekstein [2010] NSWSC 472
Case
[2010] NSWSC 472
Decision Date
CaseChat Overview and Summary
Power v Ekstein is a case that involved an application for further discovery and an interim account. The application for further discovery was made by the plaintiff, Power, who sought information from the defendant, Ekstein, relating to the defendant's financial records. The application for an interim account was made under rule 46.2 of the Uniform Civil Procedure Rules. The primary dispute was whether the plaintiff was precluded from seeking an account due to a previous agreement between the parties. The case was heard in the Supreme Court of New South Wales.
The primary legal issue before the court was whether the plaintiff was precluded from seeking an account of the defendant's financial records due to a previous agreement between the parties. The court had to determine whether the agreement, which was made in the context of a previous litigation, could be used to preclude the plaintiff from seeking further discovery. Additionally, the court had to consider whether an interim account was appropriate in the circumstances of the case.
The court held that the plaintiff was not precluded from seeking an account of the defendant's financial records. The court found that the previous agreement did not apply to the current proceedings and that the plaintiff was entitled to seek further discovery. The court also held that an interim account was appropriate in the circumstances of the case, but that the preliminary question of whether the plaintiff was precluded from seeking an account should be decided on the final hearing. The court found that the plaintiff had made out a prima facie case for an interim account and that it was in the interests of justice to grant the application.