Yarranova Pty Ltd v Shaw - [2014] FCA 403

FEDERAL COURT OF AUSTRALIA
Yarranova Pty Ltd v Shaw [2014] FCA 403

Citation: Yarranova Pty Ltd v Shaw [2014] FCA 403

Parties: YARRANOVA PTY LTD (ACN 077 517 616) and NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644) v JOHN RASHLEIGH SHAW

File number: VID 1371 of 2013

Judge: GORDON J

Date of judgment: 24 April 2014

Date of hearing: 24 April 2014

Date of last submissions: 24 April 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 14

Counsel for the Applicants: Mr P Fary

Solicitor for the Applicants: Arnold Bloch Leibler

Counsel for the Respondent: The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1371 of 2013

BETWEEN:
YARRANOVA PTY LTD (ACN 077 517 616)
First Applicant

NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)
Second Applicant

AND:
JOHN RASHLEIGH SHAW
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

24 APRIL 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The notice to produce filed by the Respondent on 8 April 2014 is set aside.
2.The Respondent pay the Applicants’ costs of and incidental to this application, such costs to be taxed if not agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1371 of 2013

BETWEEN:
YARRANOVA PTY LTD (ACN 077 517 616)
First Applicant

NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)
Second Applicant

AND:
JOHN RASHLEIGH SHAW
Respondent

JUDGE:

GORDON J

DATE:

24 APRIL 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
INTRODUCTION

This proceeding is one of many related proceedings. The litigation has a long history. On 20 December 2013, the applicant creditors filed a creditor’s petition in this proceeding. The creditor’s petition was founded upon an act of bankruptcy by the failure of Mr Shaw (the Respondent) to comply with a bankruptcy notice, or to satisfy the court that he had a counter-claim, set-off, or cross demand equal to, or more than, the sum claimed in the bankruptcy notice which was served on him on 14 December 2012 (the Bankruptcy Notice). The Bankruptcy Notice was founded on a debt of just over $388,000 due to the applicant creditors.
A number of steps have been taken since the service of the Bankruptcy Notice. First, the Respondent applied to set aside the Bankruptcy Notice. That application was dismissed on 25 October 2013 and is currently the subject of an appeal to be heard in the May sittings of the Full Court of the Federal Court. Second, the Respondent, applied to adjourn this proceeding – the hearing of the creditor’s petition for a sequestration order. That application is set for hearing on 30 May 2014.
NOTICE TO PRODUCE
The Respondent has now served a notice to produce dated 8 April 2014 on the Applicant Creditors (the Notice to Produce). The Notice to Produce seeks production of the following documents or things at 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 Yarranova Pty Ltd v Shaw

Details

AGLC: Yarranova Pty Ltd v Shaw [2014] FCA 403
Case: [2014] FCA 403
Decision Date

CaseChat Overview and Summary

In Yarranova Pty Ltd v Shaw, the Federal Court of Australia was asked to decide whether a notice to produce served by the Respondent, John RASHLEIGH SHAW, should be set aside. The applicants, Yarranova Pty Ltd and Newquay Stage 2 Pty Ltd, filed a creditor's petition against the Respondent for his failure to comply with a bankruptcy notice. The Respondent, who did not appear in court, had previously served a notice to produce, seeking extensive documentation from the applicants. The applicants sought to set aside this notice, arguing that it was an improper attempt to discover documents for use in other proceedings.

The court examined the nature of the documents sought and the purpose behind the notice to produce. The documents were categorized into two groups, with the first group being seen as an attempt to fish for evidence to challenge the creditor's petition. The court found these documents irrelevant to the current proceeding. The second group of documents appeared to seek general information about the applicants' belief in the Respondent's insolvency. The court held that the Respondent's burden was to prove solvency, and the applicants' belief was irrelevant.

The court concluded that the notice to produce was not a legitimate request for discovery but rather an attempt to use court procedures as a substitute for proper application for discovery, to fish for information, and to obtain evidence without a formulated case. The court emphasized the importance of adhering to proper case management principles and the rules governing discovery in litigation. Consequently, the court set aside the notice to produce and ordered the Respondent to pay the applicants' costs.

Orders