Wornes v Freewater Australia Pty Limited - [2022] ACTSC 147

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Wornes v Freewater Australia Pty Limited
Citation:	[2022] ACTSC 147
Hearing Date:	27 May 2022
DecisionDate:	24 June 2022
Before:	Kennett J
Decision:	See [51]
Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Subpoenas – application to set aside subpoenas – whether legitimate forensic purpose
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56 Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) r 6604 Oaths Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 33.4
Cases Cited:	A v Z [2007] NSWSC 899; 212 FLR 255 Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd (in liq) (No 3) [2021] ACTSC 178 Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Brand v Digi‐Tech [2001] NSWSC 425 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 Liristis v Gadelrabb [2009] NSWSC 441 Lowery v Insurance Australia Ltd [2015] NSWCA 303; 90 NSWLR 320 Maddison v Goldrick [1976] 1 NSWLR 651 National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100 Norris v Kandiah [2007] NSWSC 1296 Sahore v Ahmad [2021] ACTSC 30 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Parties:	Shaun Wornes ( Plaintiff) Freewater Australia Pty Limited ( First Defendant) David Muir (Second Defendant)
Representation:	Counsel G Blank ( Plaintiff) B Buckland ( Defendants)
Solicitors Trinity Law ( Plaintiff) Kamy Saeedi Law ( Defendants)
File Number:	SC 185 of 2021

KENNETT J:

Introduction

The plaintiff (Mr Wornes) sues the defendants in debt, relying on what are said to be two loan agreements.

The first loan agreement is contained in a deed, which describes itself as a Debenture Agreement, dated 15 March 2018. The first defendant (Freewater Australia) was the borrower under that agreement and the second defendant (Mr Muir) was the guarantor.

The deed acknowledged various advances and amounts that Freewater Australia had the benefit of, amounting to $350,000. It contained provisions for interest and for monthly repayments commencing in March 2019. It provided that failure to pay any money or instalment required under the agreement within 90 days was a default event, which would authorise Mr Wornes to demand payment of all money owing.

It is pleaded that there was a failure to make repayments constituting a default event, a demand letter was duly sent, and the outstanding amount demanded in that letter has not been paid.

The second loan agreement is contained in an exchange of emails on 13 June 2019. It is pleaded that, pursuant to this agreement, Mr Wornes advanced $150,000 to Freewater Australia with that sum due for repayment on 25 July 2019. Repayment did not occur on that day. It is further pleaded that the parties agreed (orally) that the loan would be repaid…

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.

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Details

Case: [2022] ACTSC 147
Decision Date

CaseChat Overview and Summary

In the matter of Shaun Wornes suing Freewater Australia Pty Limited and David Muir, the plaintiff has issued subpoenas to the defendants and Freewater Accountants Pty Limited seeking the production of various documents. The defendants have applied to have the subpoenas set aside on the basis that they lack a legitimate forensic purpose and constitute an abuse of process. The application has been narrowed by agreement between the parties to focus on specific paragraphs of the subpoenas. The court considered whether the subpoenas were apt to assist in the just resolution of the real issues in the proceeding, having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW) and Court Procedures Act 2004 (ACT) to facilitate the just, quick and cheap resolution of the real issues in proceedings. The court found that certain paragraphs of the subpoenas were overly broad and not focused enough on documents likely to shed light on the issues in the proceeding. However, other paragraphs seeking financial statements and records potentially relevant to the loan agreements were allowed. The application was otherwise dismissed and costs reserved.

Orders