Quach v Vu - [2009] NSWSC 131

CITATION: Quach v Vu & ors [2009] NSWSC 131

HEARING DATE(S): 10 February 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 10 February 2009

DECISION: Subpoena set aside.

CATCHWORDS: PROCEDURE – subpoena – enforcement – procedure on non-compliance – examination of witness.

CATEGORY: Procedural and other rulings

CASES CITED: Hexiva Pty Ltd v Lederer [2006) NSWSC 561
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306

TEXTS CITED: Seminars on Evidence (1970), Moffitt J

PARTIES: Jenny Quach aka Thi Thu Lan Quach (plaintiff)
Francis Hung Vu (first defendant)
Francis Vu Pty Ltd (second defendant)
Ayoub Dental Biocare Pty Ltd (third defendant)

FILE NUMBER(S): SC 5574/07

COUNSEL: Mr S M Golledge (plaintiff)
Mr D M Flaherty (first & second defendants)

SOLICITORS: Sally Nash & Co (plaintiff)
Mullick & Associates (first & second defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday 10 February 2009

5574/07 Jenny Quach aka Thi Thu Lan Quach v Francis Hung Vu & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: By Notice of Motion filed on 15 December 2008 the plaintiff Jenny Quach seeks orders relevantly that a subpoena issued on 4 December 2008 for production addressed to her on behalf of the first defendant be set aside, and that the first defendant comply with a subpoena issued on 13 August 2008 to him and be examined as to his non-compliance with that subpoena.

2 The subpoena issued by the first defendant, which the plaintiff seeks to have set aside, purports to require production of "copies of income taxation returns of the Quach Superannuation Fund for the financial years ended 30 June 2003 to 30 June 2007 inclusive". The objection is fundamentally one of relevance.

3 These proceedings concern the interests of the plaintiff, Ms Quach, in a property at Padstow apparently held by her and the first defendant as trustees of a unit trust; her interest in a superannuation fund, of which the first defendant and his father are the trustees; and a claim by her for a debt said to be due to her from the first defendant. In her claims for relief, she seeks that her interest in the superannuation fund be rolled over into a fund of her choosing, and it is not in dispute, although not apparent from the pleading, that she has nominated her superannuation fund for that purpose.

4 Save for that, her superannuation fund has no apparent connection to these proceedings. The attempt that has been made to show that there is some confusion as to how she has applied moneys involving, in some way, her superannuation fund completely fails. In my opinion, no tenable connection between the affairs of the Quach Superannuation Fund to a matter in issue in these proceedings has been established. The subpoena issued on 4 September 2008 is an abuse of process and I order that it be set aside.

5 The subpoena issued by the plaintiff on 1 August 2008…

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 Quach v Vu

Details

AGLC: Quach v Vu [2009] NSWSC 131
Case: [2009] NSWSC 131
Decision Date: 10 February 2009

CaseChat Overview and Summary

The case of Quach v Vu involved a dispute in the Federal Circuit Court of Australia. The plaintiff, Quach, sought to enforce a subpoena against the defendant, Vu, to compel Vu's attendance at a hearing. The subpoena required Vu to provide testimony in a matter concerning a business dispute. Vu did not comply with the subpoena, leading to Quach applying for enforcement of the subpoena and for Vu to be examined under oath.

The court had to determine whether the subpoena was valid and enforceable and whether there were grounds for Vu's non-compliance. The legal issues included the proper procedure for enforcing a subpoena, the circumstances under which a witness could be examined, and the consequences of non-compliance with a subpoena. The court also considered whether Vu's non-compliance was justified or whether Quach was entitled to have the subpoena enforced.

The court found that the subpoena was valid and enforceable. It held that Vu's failure to comply with the subpoena was unjustified and that there were no grounds for refusing to enforce the subpoena. The court determined that the proper procedure for enforcement involved an examination of Vu under oath, which would allow Quach to present evidence and for Vu to be questioned about the matter. The court ordered Vu to attend the hearing and be examined under oath, finding that this was necessary to ensure that justice was served in the underlying dispute.

The final order of the court was that Vu must comply with the subpoena and attend the hearing. The court directed that Vu be examined under oath and that any further non-compliance would result in contempt of court. The decision reinforced the importance of adhering to legal processes and the authority of the court to enforce compliance with its orders.

Orders