Cloud Top Pty Limited & Anor v Toma Services Pty Limited & Anor [2008] NSWSC 278

Cloud Top Pty Limited & Anor v Toma Services Pty Limited & Anor [2008] NSWSC 278

The notice to produce was set aside because it was an inappropriate substitute for discovery in Commercial List proceedings and was not shown to be relevant to the issues; counsel purporting to appear for the defendants had no right of audience because the purported instructing solicitors were no longer on the record and counsel did not personally represent the defendants.

Jurisdiction
Australia
Judgment Date
28 March 2008
Procedural Posture
Notice of Motion in Equity Division Commercial List Proceedings / Ex Tempore Judgment on Plaintiffs' Notice of Motion Filed on 18 March 2008
Outcome
Notice to produce struck out; defendants ordered to pay the plaintiffs' costs of the notice of motion.
Legal Topics
['notices to Produce' 'discovery in Commercial List Proceedings' 'rights of Audience' 'solicitors Ceasing to Act']
['civil Procedure' 'legal Profession'] ['notices to Produce' 'discovery in Commercial List Proceedings' 'rights of Audience' 'solicitors Ceasing to Act']

Case Brief

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Procedural Posture

Notice of Motion in Equity Division Commercial List Proceedings / Ex Tempore Judgment on Plaintiffs' Notice of Motion Filed on 18 March 2008

Legal Issues

  1. 1 ['Whether paragraphs 1, 2, 3, 4 and 5 of the notice to produce served on behalf of the first and second defendants/cross-claimants should be struck out or set aside.' 'Whether counsel purporting to be instructed by a person connected with former solicitors who had ceased to act had a right of audience for the defendants.']

Ratio Decidendi

The notice to produce was set aside because it was an inappropriate substitute for discovery in Commercial List proceedings and was not shown to be relevant to the issues; counsel purporting to appear for the defendants had no right of audience because the purported instructing solicitors were no longer on the record and counsel did not personally represent the defendants.

Court Disposition

Notice to produce struck out; defendants ordered to pay the plaintiffs' costs of the notice of motion.

Orders

  • ['The Court makes orders in terms of paragraph 1 of the notice of motion filed on 18 March 2008.' "The defendants are ordered to pay the plaintiffs' costs of the plaintiffs' notice of motion."]