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Singida Pty Ltd v MLMK Pty Ltd

Singida Pty Ltd v MLMK Pty Ltd

Case [2023] WASC 426 17 November 2023

Discovery & Disclosure

Subpoena

Taking of Accounts

Costs

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINGIDA PTY LTD -v- MLMK PTY LTD [2023] WASC 426
CORAM:   REGISTRAR WHITBREAD
HEARD:   18 APRIL 2023
DELIVERED          :   17 NOVEMBER 2023
PUBLISHED           :   17 NOVEMBER 2023
FILE NO/S:   CIV 1310 of 2015
BETWEEN:   SINGIDA PTY LTD
First Plaintiff
INLAY PTY LTD
Second Plaintiff
EDWIN HERBERT BAKER
Third Plaintiff
AND
MLMK PTY LTD
First Defendant
LEGERDEMAIN PTY LTD
Second Defendant
KMLM INVESTMENTS PTY LTD
Third Defendant
POLARIS RESOURCES PTY LTD
Fourth Defendant
EXPLOSIVE MANUFACTURING SERVICES PTY LTD
Fifth Defendant
MARIANA KAKER
Sixth Defendant
DUNCAN LESLIE MINTO
Seventh Defendant

Catchwords:

Taking of Accounts ‑ Taking of accounts on the basis of wilful default ‑ Application to issue subpoena to accounting parties, defendants who are not accounting parties and non‑parties ‑ Whether subpoenas should be issued to accounting parties and defendants who are not accounting parties or whether further discovery should be ordered ‑ Whether documents already discovered for the purposes of trial should be produced again on a taking of accounts ‑ Proper scope of subpoena or discovery orders on a taking of accounts on the basis of wilful default

Practice and procedure ‑ Subpoena and discovery on a taking of accounts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

First Plaintiff	:	DH Solomon
Second Plaintiff	:	DH Solomon
Third Plaintiff	:	DH Solomon
First Defendant	:	G Abbott
Second Defendant	:	G Abbott
Third Defendant	:	G Abbott
Fourth Defendant	:	G Abbott
Fifth Defendant	:	G Abbott
Sixth Defendant	:	G Abbott
Seventh Defendant	:	G Abbott

Solicitors:

First Plaintiff	:	Solomon Brothers
Second Plaintiff	:	Solomon Brothers
Third Plaintiff	:	Solomon Brothers
First Defendant	:	Meridian Lawyers (Perth)
Second Defendant	:	Meridian Lawyers (Perth)
Third Defendant	:	Meridian Lawyers (Perth)
Fourth Defendant	:	Meridian Lawyers (Perth)
Fifth Defendant	:	Meridian Lawyers (Perth)
Sixth Defendant	:	Meridian Lawyers (Perth)
Seventh Defendant	:	Meridian Lawyers (Perth)

Cases referred to in decision:

Chan v Zacharia (1984) 154 CLR 178
Grimaldi v Chameleon Mining NL (No. 2) (2012) FCR 296
John Taylors v Masons [2005] WTLR 1519
Lampson (Australia) Pty Ltd v Fortescue Metal Group Ltd (No 2)
[2010] WASC 217
Maquire v Makaronis (1997) 188 CLR 449
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Rafferty v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd)
[2017] WASC 18
Re Jarvis [1958] 1 WLR 815
Simpson v Chapman (1853) 43 ER 466
St George Bank Ltd v Bowman Irani & Ors [2007] VSC 382
T O'Connor & Sons Pty Ltd v Entact Clough Pty Ltd [2003] WASC 69
Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR 488
Willett v Blandford (1842) 66 ER 1027

REGISTRAR WHITBREAD:

1A The Application

Singida Pty Ltd (the First Plaintiff), filed an application for leave to issue subpoenas on the taking of accounts on 28 November 2022 (the Application).
MLMK Pty Ltd (MLMK), Legerdemain Pty Ltd (

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 Singida Pty Ltd v MLMK Pty Ltd

Details

AGLC: Singida Pty Ltd v MLMK Pty Ltd [2023] WASC 426
Case: [2023] WASC 426
Decision Date: 17 NOVEMBER 2023

CaseChat Overview and Summary

Singida Pty Ltd, the first plaintiff, brought an action against MLMK Pty Ltd, the first defendant, and others, including Polaris and Jermill, seeking relief on the basis of alleged breaches of fiduciary duty and breaches of contract. The first defendant, MLMK, denied the allegations and counterclaimed. The dispute came before the court in relation to a taking of accounts on the basis of wilful default and the scope of subpoenas and discovery orders. The court had to determine whether subpoenas should be issued to accounting parties and defendants who were not accounting parties, and whether further discovery should be ordered. The court also had to decide whether documents already discovered for the purposes of trial should be produced again on a taking of accounts.

The court considered the nature of the taking of accounts and the extent to which subpoenas and discovery orders should be issued. The court found that the subpoenas should issue to the accounting parties and to certain defendants who were not accounting parties, namely KMLM, Polaris, Black Bear, and Jermill. However, the court found that the subpoenas should not issue, and the discovery orders should not be made, in respect of category 2 until the issue of the wording of that category was resolved. The court also found that documents already discovered for the purposes of trial should not be produced again on a taking of accounts.

The court ordered that discovery orders be made in respect of the accounting parties and that leave be given to the first plaintiff to issue subpoenas to certain defendants. However, the court found that the subpoenas should not issue, and the discovery orders should not be made, in respect of category 2 until the issue of the wording of that category was resolved. The court also found that documents already discovered for the purposes of trial should not be produced again on a taking of accounts. The parties were ordered to confer to give effect to the findings in this decision as to the scope of category 2 in the discovery orders and subpoenas to issue. The court noted that costs of the application should be in the cause, given the level of mixed success by each party.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion The parties will need to confer to give effect to the findings in this decision as to the scope of category 2 in the discovery orders and subpoenas to issue. Discovery orders will be made in respect of the Accounting Parties. Leave is given to the First Plaintiff to issue subpoenas to KMLM, Polaris, Black Bear and Jermill but with the qualification I had made regarding previously discovered documents by KMLM and Polaris who, whilst they are not Accounting Parties, remain defendants in the proceeding in which the Report will be made to the trial Judge. However, subpoenas will not issue, and discovery orders will not be made, in respect of category 2, until the issue of the wording of that category is resolved. Costs I will hear the parties as to the costs of the Application. My preliminary view is that, given the level of mixed success by each party, costs of the Application should be in the cause.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Singida Pty Ltd v MLMK Pty Ltd [2023] WASC 426

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd
[2018] HCA 43 Para 3

…uitable compensation for the breach.[5] [5] See Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 92 ALJR 918 at [83] and [93] ‑ [95].…
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd)
[2017] WASC 18 Para 1

…davit of discovery, they must first obtain leave to file a correcting affidavit.[9] [7] Rafferty v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2017] WASC 18 at [34]. [8] Lampson (Australia) Pty Ltd v Fortescue Metal Group Ltd (No 2) [2010] WASC 217 at [27]. [9] Lampson v Fortescue Metal Group at [28].…
Grimaldi v Chameleon Mining NL & Anor [2012] HCATrans 187
[2012] HCATrans 187 Para 1

…The connection between the breach of fiduciary duty and the profit depends upon a precise examination of the facts of the case. The process might be better understood as a process of 'attribution' rather than causation in order not to add confusion to the question the Court needs to address, but the…
Grimaldi v Chameleon Mining NL (No 2)
[2012] FCAFC 6 Para 1

…eds to address, but the correct summation of the enquiry to be made was stated by Finn, Stone and Perram JJ in Grimaldi v Chameleon Mining NL (No. 2) (2012) FCR 296 at [517]: The courts have long recognised that benefits or the profits derived by a misbehaving fiduciary may be attributable to multiple sources onl…
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2]
[2010] WASC 217 Para 1

…ferty v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2017] WASC 18 at [34]. [8] Lampson (Australia) Pty Ltd v Fortescue Metal Group Ltd (No 2) [2010] WASC 217 at [27]. [9] Lampson v Fortescue Metal Group at [28].…
St George Bank Limited v Irani
[2007] VSC 382 Para 3

…In St George Bank Ltd v Bowman Irani & Ors [2007] VSC 382 the Court found that discovery orders could be made on a taking of account. Whilst that authority does not consider the issue of whether a subpoena is an appropriate, or possible, process against accounting parties on a taking of account on the basis of wi…
T O'Connor & Sons Pty Ltd v Entact Clough Pty Ltd
[2003] WASC 69 Para 2

…expanded, given the scope of the Accounting Orders, in relation to the obligation to account. [10] T O'Connor & Sons Pty Ltd v Entact Clough Pty Ltd [2003] WASC 69 at [57].…
NSW Commissioner of Police v Tuxford
[2002] NSWCA 139 Para 3

…estrict the capacity in which a person engages in communications will be of potentially unlimited scope. [30]See NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [33].…
Maguire v Makaronis
[1997] HCA 23 Para 2

…reach of fiduciary duty, rather than what might hypothetically have been acquired if the fiduciary had acted properly.[4] [4] See Maguire v Makaronis (1997) 188 CLR 449 at [468].…
Chan v Zacharia
[1984] HCA 36 Para 14

…As Deane J stated in Chan v Zacharia (1984) 154 CLR 178 at 199: Stated comprehensively in terms of the liability to account, the principle of equity is that a person who is under a fiduciary obligation must account to the person to whom the obligation is owed for any benefit or gain (i) which has been obtained or rec…
[1958] 1 WLR 815
[1958] 1 WLR 815 Para 8

…It is impossible to lay down a general rule as to how the derived benefit, if any, should be valued ( Re Jarvis [1958] 1 WLR 815 at 820 per Upjohn J).[6] John Taylors v Masons [2005] WTLR 1519, at [37], reflects the same concern regarding a general rule in partnership cases, referring to the difficulty in identifyi…
Willett v Blandford
(1842) 66 ER 1027 Para 6

…In Willett v Blandford (1842) 66 ER 1027, Wigram V.C. explained the difficulty with a general, or universal rule, as to what had to be accounted for, because the circumstances in which profits are generated by businesses are so varied. In essence, new dealings can mix up the original assets, capital or profits with…
Turner LJ put it in Simpson v Chapman
(1853) 43 ER 466 Para 7

…By analogy, where the date of death is replaced by the date of dissolution of the partnership, as Turner L.J. put it in Simpson v Chapman (1853) 43 ER 466: … the profits derived from the trade carried on after death of the testator must depend upon the nature of the trade, the manner of carrying it on, the capital…

Legislation cited in this decision · 1

Corporations Act 2001 (Cth)
1 mention (from Para 1)