Walker Nominees Pty Ltd v Branir Pty Ltd - [2004] NTSC 25

[Back to Main List] [Back to NTSC 2004 List] Walker Nominees Pty Ltd (in liquidation) v Branir Pty Ltd & Anor [2004] NTSC 25

PARTIES: WALKER NOMINEES PTY LTD (IN LIQUIDATION)

BRANIR PTY LTD

AND

TOVEHEAD PTY LTD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: 153 of 2003 (20320300)

DELIVERED: 14 May 2004

HEARING DATE: 29 April 2004

JUDGMENT OF: BAILEY J

REPRESENTATION:

Counsel:
Plaintiff: D McConnell
Defendants: C Ford

Solicitors:
Plaintiff: Morgan Buckley
Defendants: Cridlands

Judgment category classification: C
Judgment ID Number: Bai04004
Number of pages: 8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Walker Nominees Pty Ltd (in liquidation) v Branir Pty Ltd & Anor [2004] NTSC 25
No. 153 of 2003 (20320300)

BETWEEN:

WALKER NOMINEES PTY LTD (IN LIQUIDATION)
Plaintiff

AND:

BRANIR PTY LTD
First Defendant

AND

TOVEHEAD PTY LTD
Second Defendant

CORAM: BAILEY J

REASONS FOR JUDGMENT

(Delivered 14 May 2004)

[1] The liquidator of the plaintiff is a partner of Deloitte Touche Tohmatsu ("Deloittes") who were the accountants, advisers and auditors of the defendants ("Tipperary") for a period of 5 years ending around August 2003.
[2] In around September 2003, the liquidator commenced action against Tipperary for breach of contract (or in the alternative, unjust enrichment) arising out of an alleged failure of Tipperary to pick, pack and transport mangoes. The liquidator seeks judgment against Tipperary for around $375,000.
[3] Tipperary applied to stay the proceedings on the basis that the liquidator (through Deloittes) is in possession of confidential information of Tipperary. In February 2004, the Master granted a temporary stay of the proceedings pending resolution of Tipperary's stay application.
[4] On 23 February 2004, Tipperary filed a subpoena addressed to two partners of Deloittes seeking, in effect, all documents relating to Deloittes' work as Tipperary's accountants, tax accountants, auditors and financial accountants, including but not limited to those documents relating to the liquidator's claim against Tipperary for its alleged failure to pick, pack and transport mangoes.
[5] On behalf of Deloittes, Mr McConnell applied to set aside the subpoena on the basis that the subpoena is too broad and amounts to a "fishing expedition". Mr McConnell also made reference to the subpoena defeating an alleged lien held by Deloittes, but this submission was not pressed with any vigour.
[6] In support of his submission that the subpoena is too broad, Mr McConnell referred me to the House of Lords' case of Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 at p 235, where Lord Millett observed:
"Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is…

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.

Keep reading for free

Create a free CaseChat account to read Walker Nominees Pty Ltd v Branir Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NTSC 25
Decision Date: 14/05/2004

CaseChat Overview and Summary

The Supreme Court of the Northern Territory of Australia heard the case of Walker Nominees Pty Ltd (in liquidation) v Branir Pty Ltd and Tovehead Pty Ltd. The plaintiff, Walker Nominees, represented by its liquidator, who is a partner at Deloitte Touche Tohmatsu, brought the action against the defendants Branir Pty Ltd and Tovehead Pty Ltd for breach of contract or alternatively, unjust enrichment, related to an alleged failure by Branir Pty Ltd to pick, pack and transport mangoes. The liquidator sought around $375,000 in damages from Branir Pty Ltd.

The legal issues the court had to address included whether the liquidator, through Deloittes, was in possession of confidential information of Branir Pty Ltd and whether the subpoena issued to Deloittes partners was too broad or amounted to a fishing expedition. Branir Pty Ltd applied for a stay of proceedings, arguing that the liquidator had access to confidential information. The court had to determine whether the subpoena was properly issued and if it constituted an abuse of the power to compel the production of documents.

Bailey J, delivering the judgment, found that the defendants were not attempting to circumvent the discovery rules and that the subpoena, while broad, was necessary given Deloittes' position to know the information in their possession concerning Branir Pty Ltd. The court refused the application to set aside the subpoena but noted that it would consider any restrictions on the production of documents to protect Deloittes' interests. The court's decision balanced the need for the defendants to obtain relevant information against the potential burden on the plaintiff's representatives.

Orders