Toppro Pty Ltd v Yoo

[2016] NSWCA 119

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Toppro Pty Ltd v Yoo [2016] NSWCA 119
Hearing dates:	18 March 2016
Date of orders:	18 March 2016
Decision date:	23 May 2016
Before:	Macfarlan JA, Leeming JA, Sackville AJA
Decision:	1. The summons for leave to appeal be dismissed. 2. The applicant pay the respondent’s costs of the application for leave to appeal.
Catchwords:	PRACTICE AND PROCEDURE - validity of transfer of shares - motion to set aside subpoena - subpoena seeks production of confidential business records of company post transfer - whether substantial injustice in disclosing business records to competitors - whether primary judge misapprehended evidence adduced in other proceedings - whether notice to produce sought production of documents relevant to the credit of certain witnesses
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101(2)(e)
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170 Ahn v Toppro Pty Ltd [2016] NSWSC 221 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Brand v Digi-tech (Australia) Pty Ltd [2001] NSWSC 425 Hatton v Attorney General of the Commonwealth of Australia [2000] FamCA 892; 26 Fam LR 570 ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307 ICAP Pty Limited v Moebes Anor [2009] NSWSC 306 Liristis v Gadelrabb [2009] NSWSC 441 Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064 Re the Will of Gilbert (1946) 46 SR (NSW) 318
Category:	Principal judgment
Parties:	Toppro Pty Ltd (Applicant) Il Nam Yoo (Respondent)
Representation:	Counsel: Mr M Neil QC / Mr S O’Brien (Applicant) Mr J Young (Respondent)   Solicitors: Alpha Lawyers (Applicant) Kim & Associates (Respondent)
File Number(s):	2016/72158
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Corporations List Citation: [2016] NSWSC 221 Date of Decision: 15 February 2016 Before: Brereton J File Number(s): 2014/186025

Judgment

1. THE COURT: On 18 March 2016, the Court dismissed an application by Toppro Pty Ltd (Toppro) for leave to appeal from an interlocutory decision of a judge of the Equity Division (Brereton J). [1] Toppro is the first defendant in proceedings in the Equity Division (Equity Division Proceedings), which are listed for hearing on 30 March 2016. The plaintiff in those proceedings (Mr Yoo) is the respondent in this Court.

   1. Since the decision was interlocutory, leave is required: Supreme Court Act 1970 (NSW), s 101(2)(e).

2. The primary Judge in substance dismissed a notice of motion by Toppro, in which it sought orders setting aside a notice to produce issued by Mr Yoo. [2] Toppro sought to challenge his Honour’s decision on the ground that he misapprehended the facts which were said to justify requiring production of the documents identified in the notice to produce.

   2. Ahn v Toppro Pty Ltd [2016] NSWSC 221 (Primary Judgment).

3. At the conclusion of argument on…