PITARD KNOWLES NO. 1 PTY LTD (ACN 606 897 269) & ORS (according to the attached Schedule)	Plaintiffs/Defendants by Counterclaim
v
SOD INVESTMENTS PTY LTD (ACN 634 294 876)	First Defendant/First Plaintiff by Counterclaim

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2023
DATE OF JUDGMENT:	18 December 2023 (revised 8 July 2024)
CASE MAY BE CITED AS:	Re Ninety Mile Beach Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 765

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CORPORATIONS – Oppression proceedings under ss 232 and 233 of the Corporations Act 2001 (Cth) – Objection by addressees to subpoenas issued to them under O 42A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for access to cloud-based accounting records of addressees – Subpoenas sought provision of credentials to enable access to cloud-based accounting records – Finding that subpoenas did not seek production of ‘documents’ within the meaning of O 42A – Forty Two International Pty Ltd v Barnes [2014] FCA 85 – Subpoenas also required addressees to command cloud-based accounting platform to generate a document sourced from raw data on system – Finding that subpoenas required the creation of a document not previously in existence and not susceptible to a subpoena under O 42A – Relevant paragraphs of the subpoenas set aside – Other paragraph of subpoena requiring production of documentation relevant to financial transactions occurring between the company the subject of the oppression proceedings and the addressees maintained.

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APPEARANCES:	Counsel	Solicitors
For the Defendant/Plaintiff by Counterclaim	Mr N Paterson of counsel	Lander & Rogers
For the objectors to the subpoenas, Project 179 Pty Ltd and Project 248 Pty Ltd	Mr D Porteous of counsel	Michael Trumble Legal

TABLE OF CONTENTS

Background......................................................................................................................................... 1

The subpoenas.................................................................................................................................... 4

The objections..................................................................................................................................... 6

The evidence....................................................................................................................................... 6

179 and 248’s evidence....................................................................................................................... 8

SOD’s evidence................................................................................................................................ 10

179 and 248’s submissions as to the objections to Category 2 of the subpoenas............... 14
SOD’s submissions...................................................................................................................... 20
179 and 248’s submissions in reply.......................................................................................... 29

Consideration.................................................................................................................................... 31

Conclusion......................................................................................................................................... 37

HIS HONOUR:

On 10 May 2023, Project 179 Pty (‘179’) and Project 248 Pty Ltd (‘248’) notified the Prothonotary pursuant to r 42A.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) of their objections to the production of documents identified in the subpoenas issued to them on 3 May 2023 at the request of the defendant in this proceeding, SOD Investments Pty Ltd (‘SOD’).

The application raises novel questions as to, first, whether a subpoena can be issued under O 42A of the Rules which, rather than calling for the production of a physical document to the Prothonotary, requires the recipient to provide a username and password to enable access to the recipient’s cloud-based accounting records which hold such records in the form of raw data. The second and related issue is whether the recipient of…

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 Re Ninety Mile Beach Pty Ltd

Details

AGLC: Re Ninety Mile Beach Pty Ltd [2023] VSC 765
Case: [2023] VSC 765
Decision Date: 18 December 2023 (revised 8 July 2024)

CaseChat Overview and Summary

Ninety Mile Beach Pty Ltd was a party to oppression proceedings under sections 232 and 233 of the Corporations Act 2001. The company sought to access cloud-based accounting records of the addressees. The addressees objected to the subpoenas issued under Order 42A of the Supreme Court (General Civil Procedure) Rules 2015. They argued that the subpoenas improperly sought access to their cloud-based accounting records, including credentials and the creation of documents not previously in existence. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the subpoenas were properly issued under Order 42A of the Supreme Court (General Civil Procedure) Rules 2015. Specifically, the court had to determine whether the subpoenas sought the production of 'documents' within the meaning of that rule and whether they required the addressees to command the cloud-based accounting platform to generate a document sourced from raw data on the system. The court also considered whether the subpoenas required the creation of a document not previously in existence and not susceptible to a subpoena under Order 42A.

The court found that the subpoenas did not seek the production of 'documents' within the meaning of Order 42A, as per the decision in Forty Two International Pty Ltd v Barnes. The subpoenas required the addressees to command the cloud-based accounting platform to generate a document sourced from raw data on the system, which the court found constituted the creation of a document not previously in existence. Consequently, the relevant paragraphs of the subpoenas were set aside. However, the court maintained the paragraph of the subpoena requiring the production of documentation relevant to financial transactions occurring between the company and the addressees.

The court ordered that the relevant paragraphs of the subpoenas be set aside, while maintaining the paragraph requiring the production of documentation relevant to financial transactions occurring between the company and the addressees. This decision highlights the importance of ensuring that subpoenas comply with the relevant rules and do not improperly seek the creation of documents not previously in existence.

Orders