Schebella v Schebella - [2020] QDC 74

DISTRICT COURT OF QUEENSLAND

CITATION:

Schebella v Schebella & Ors [2020] QDC 74

PARTIES:

KEVIN CHARLES SCHEBELLA
(applicant / plaintiff)

v

MARK ANDREW SCHEBELLA
(first respondent / first defendant)

and

KAREN JANE SCHEBELLA
(second respondent / second defendant)

and

BLACSKY PTY LTD
(ACN 079 291 919)
(Deregistered) as Trustee of the Schebella Family Trust
(third defendant)

FILE NO/S:

D121/2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

8 May 2020

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

27 February 2020

JUDGE:

Long SC, DCJ

ORDER:

Within 28 days, the first and/or second defendants are to disclose to the plaintiff the documents described as follows:1.

those relating to and evidencing the transfer of the property at 8 Verdon Street, Golden Beach, Queensland, on or about 22 August 2019; and(a)

unredacted copies of the following bank statements:(b)

Westpac Bank account No. 17-7219, for the periods from 18 November 2004 to 17 December 2004 and 18 July 2007 to 18 January 2010; and(i)

Westpac Bank account No 39-4656, for the period 22 June 2012 to 13 November 2015.(ii)

In the absence of disclosure of the documents identified at subparagraph 1(b) above, the first and second defendants are to file and serve an affidavit stating the basis upon which any specified document does not exist.2.

The first and second defendants are to pay the plaintiff’s costs of this application, up to and including 24 January 2020 and thereafter, each party is to bear their own costs.3.

CATCHWORDS:

PROCEDURE – DISCLOSURE – DISCLOSURE UNDER UCPR r 223 – Where the plaintiff seeks disclosure by the first and second defendants of financial statements, financial documents, company records, documents evidencing the sale of property, and unredacted bank statements – Whether “special circumstances and the interests of justice” require disclosure – Whether, as a matter of objective likelihood, the first and second defendants have the documents within their possession or control – Facilitating the just and expeditious resolution of issues in the proceeding

PROCEDURE – DISCLOSURE – DISCLOSURE UNDER UCPR r 211 – Where the first and second defendants previously disclosed redacted bank statements – Where the plaintiff seeks disclosure of unredacted bank statements – Where it is contended that unredacted bank statements are available to the first and second defendants from the banks presently holding them – Where the general principle provides for disclosure of the whole of any document containing relevant information – Whether, pursuant to the debtor/creditor relationship, the bank statements held by the bank are within the possession or control of the first and second defendants

PROCEDURE – DISCLOSURE – RELEVANCE – Whether documents evidencing the sale of real property by the first and second defendants to a third party are directly relevant to any allegation in issue – Likelihood of facilitating the just and expeditious resolution of the real issues

PROCEDURE – COSTS – DISCRETION TO AWARD COSTS – Whether costs should follow the event – Whether there should be departure from the…

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 Schebella v Schebella

Details

AGLC: Schebella v Schebella [2020] QDC 74
Case: [2020] QDC 74
Decision Date: 8 May 2020

CaseChat Overview and Summary

The case of Schebella v Schebella involves a dispute where the plaintiff sought disclosure of various documents from the first and second defendants. These documents included financial statements, financial documents, company records, documents evidencing the sale of property, and unredacted bank statements. The application was made under the Uniform Civil Procedure Rules (UCPR) and the court was required to decide whether special circumstances and the interests of justice warranted the disclosure, and whether it was likely that the defendants held the documents. Additionally, the plaintiff sought unredacted bank statements that the defendants had previously redacted, arguing that the banks holding these statements were within the defendants' possession or control due to their debtor/creditor relationship.

The court examined the relevance of the documents to the issues in the proceeding, particularly whether they were likely to facilitate the just and expeditious resolution of the real issues. It also considered whether the documents evidencing the sale of property were directly relevant. The court held that the documents related to the transfer of property and the unredacted bank statements were likely within the defendants' possession or control. The principle of disclosure in its entirety was invoked, emphasising the importance of the defendants' debtor/creditor relationship with the banks.

The court ordered that the first and second defendants must disclose the specified documents within 28 days, including those relating to the transfer of the property and unredacted bank statements for certain periods. If the specified documents were not disclosed, the defendants were required to file and serve an affidavit stating the basis for the absence of any specified document. The court also ruled that the defendants should pay the plaintiff’s costs of the application up to a specified date, after which each party would bear their own costs.

Orders

Orders of the court

Within 28 days, the first and/or second defendants are to disclose to the plaintiff the documents described as follows:1.

those relating to and evidencing the transfer of the property at 8 Verdon Street, Golden Beach, Queensland, on or about 22 August 2019; and(a)

unredacted copies of the following bank statements:(b)

Westpac Bank account No. 17-7219, for the periods from 18 November 2004 to 17 December 2004 and 18 July 2007 to 18 January 2010; and(i)

Westpac Bank account No 39-4656, for the period 22 June 2012 to 13 November 2015.(ii)

In the absence of disclosure of the documents identified at subparagraph 1(b) above, the first and second defendants are to file and serve an affidavit stating the basis upon which any specified document does not exist.2.

The first and second defendants are to pay the plaintiff’s costs of this application, up to and including 24 January 2020 and thereafter, each party is to bear their own costs.3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Schebella v Schebella & Ors [2020] QDC 74
PARTIES:	KEVIN CHARLES SCHEBELLA (applicant / plaintiff) v MARK ANDREW SCHEBELLA (first respondent / first defendant) and KAREN JANE SCHEBELLA (second respondent / second defendant) and BLACSKY PTY LTD (ACN 079 291 919) (Deregistered) as Trustee of the Schebella Family Trust (third defendant)
FILE NO/S:	D121/2019
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	8 May 2020
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	27 February 2020
JUDGE:	Long SC, DCJ
ORDER:	Within 28 days, the first and/or second defendants are to disclose to the plaintiff the documents described as follows:1. those relating to and evidencing the transfer of the property at 8 Verdon Street, Golden Beach, Queensland, on or about 22 August 2019; and(a) unredacted copies of the following bank statements:(b) Westpac Bank account No. 17-7219, for the periods from 18 November 2004 to 17 December 2004 and 18 July 2007 to 18 January 2010; and(i) Westpac Bank account No 39-4656, for the period 22 June 2012 to 13 November 2015.(ii) In the absence of disclosure of the documents identified at subparagraph 1(b) above, the first and second defendants are to file and serve an affidavit stating the basis upon which any specified document does not exist.2. The first and second defendants are to pay the plaintiff’s costs of this application, up to and including 24 January 2020 and thereafter, each party is to bear their own costs.3.
CATCHWORDS:	PROCEDURE – DISCLOSURE – DISCLOSURE UNDER UCPR r 223 – Where the plaintiff seeks disclosure by the first and second defendants of financial statements, financial documents, company records, documents evidencing the sale of property, and unredacted bank statements – Whether “special circumstances and the interests of justice” require disclosure – Whether, as a matter of objective likelihood, the first and second defendants have the documents within their possession or control – Facilitating the just and expeditious resolution of issues in the proceeding PROCEDURE – DISCLOSURE – DISCLOSURE UNDER UCPR r 211 – Where the first and second defendants previously disclosed redacted bank statements – Where the plaintiff seeks disclosure of unredacted bank statements – Where it is contended that unredacted bank statements are available to the first and second defendants from the banks presently holding them – Where the general principle provides for disclosure of the whole of any document containing relevant information – Whether, pursuant to the debtor/creditor relationship, the bank statements held by the bank are within the possession or control of the first and second defendants PROCEDURE – DISCLOSURE – RELEVANCE – Whether documents evidencing the sale of real property by the first and second defendants to a third party are directly relevant to any allegation in issue – Likelihood of facilitating the just and expeditious resolution of the real issues PROCEDURE – COSTS – DISCRETION TO AWARD COSTS – Whether costs should follow the event – Whether there should be departure from the…