McAssey & Anor v Nemo (BC) HoldCo & Anor [2020] NSWSC 1893

McAssey & Anor v Nemo (BC) HoldCo & Anor [2020] NSWSC 1893

Because the application for approval was foreshadowed only after close of business on 17 December 2020, supporting evidence was served then and further evidence was served late on 20 December 2020, and both defendants sought time to obtain United States legal advice and possibly adduce evidence, the Court was not prepared to determine the motion on 21 December 2020 over the defendants' objection. Directions were made to ready the matter for hearing before the Equity Vacation Judge.

Jurisdiction
Australia
Judgment Date
21 December 2020
Procedural Posture
Civil Procedure Application for Court Endorsement of Proposed §1782 Application Under Title 28 of the United States Code / Notice of Motion Filed 17 December 2020 Before the Commercial List Duty Judge for Directions; Substantive Proceedings Listed for Hearing for Four Weeks Commencing 22 February 2021
Outcome
Directions made; motion not determined on 21 December 2020.
Legal Topics
['court Endorsement of Proposed §1782 Application' 'foreign Evidence Gathering' 'subpoena for Production of Documents' 'directions' 'anti Suit Injunction']
['civil Procedure' 'equity' 'commercial List'] ['court Endorsement of Proposed §1782 Application' 'foreign Evidence Gathering' 'subpoena for Production of Documents' 'directions' 'anti Suit Injunction']

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Procedural Posture

Civil Procedure Application for Court Endorsement of Proposed §1782 Application Under Title 28 of the United States Code / Notice of Motion Filed 17 December 2020 Before the Commercial List Duty Judge for Directions; Substantive Proceedings Listed for Hearing for Four Weeks Commencing 22 February 2021

Legal Issues

  1. 1 ['Whether the Court should approve the plaintiffs making an application under §1782 of Title 28 of the United States Code to the United States District Court in the District of Massachusetts for a subpoena directed to Bain Capital LP.' "Whether the notice of motion should be determined immediately despite late notice and the defendants' request for time to obtain United States legal advice and possibly adduce evidence." 'What directions should be made to ready the motion for hearing by the Equity Vacation Judge.']

Ratio Decidendi

Because the application for approval was foreshadowed only after close of business on 17 December 2020, supporting evidence was served then and further evidence was served late on 20 December 2020, and both defendants sought time to obtain United States legal advice and possibly adduce evidence, the Court was not prepared to determine the motion on 21 December 2020 over the defendants' objection. Directions were made to ready the matter for hearing before the Equity Vacation Judge.

Court Disposition

Directions made; motion not determined on 21 December 2020.

Orders

  • ['HoldCo and Bain SPV are to serve any evidence and submissions by 8 January 2021.' 'The matter is stood over to the Equity Vacation Judge on 11 January 2021.']