Ottoway Engineering Pty Ltd (administrators appointed) v Pooncarie Operations Pty Ltd [2018] NSWSC 1775

Ottoway Engineering Pty Ltd (administrators appointed) v Pooncarie Operations Pty Ltd [2018] NSWSC 1775

Production of Pooncarie's retainers and invoices was required because it was on the cards that those documents would materially assist the Court and Ottoway's costs consultant on the quantum of security, and production was not burdensome. Pooncarie's first category was refused because documents showing how the administrators formed their view about likely expert and counsel fees would not assist resolution of the security for costs issues. Pooncarie's second category was allowed because documents concerning secured creditors' securities were capable of relevance to the quantum of security if recoveries would be available only to secured creditors.

Jurisdiction
Australia
Judgment Date
16 November 2018
Procedural Posture
Civil Procedure Ruling on Notices to Produce in Proceedings Involving an Application for Security for Costs / Interlocutory Procedural Ruling Before Hearing of the Security for Costs Application
Outcome
Production was allowed for the documents sought by Ottoway, refused for Pooncarie's first category of documents, and allowed for Pooncarie's second category of documents.
Legal Topics
['notices to Produce' 'security for Costs' 'production of Documents' 'construction Litigation']
['civil Procedure' 'equity Technology and Construction List'] ['notices to Produce' 'security for Costs' 'production of Documents' 'construction Litigation']

Case Brief

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Procedural Posture

Civil Procedure Ruling on Notices to Produce in Proceedings Involving an Application for Security for Costs / Interlocutory Procedural Ruling Before Hearing of the Security for Costs Application

Legal Issues

  1. 1 ["Whether production under the parties' notices to produce would materially assist on an identified issue in the pending security for costs application." "Whether Ottoway should produce retainers and invoices relevant to Pooncarie's historical legal costs." "Whether Ottoway should produce documents concerning the administrators' estimate that expert fees and counsel fees are likely to exceed $1 million." "Whether Ottoway should produce security documents relevant to the administrators' statement that recoveries may be subject to secured creditors' securities."]

Ratio Decidendi

Production of Pooncarie's retainers and invoices was required because it was on the cards that those documents would materially assist the Court and Ottoway's costs consultant on the quantum of security, and production was not burdensome. Pooncarie's first category was refused because documents showing how the administrators formed their view about likely expert and counsel fees would not assist resolution of the security for costs issues. Pooncarie's second category was allowed because documents concerning secured creditors' securities were capable of relevance to the quantum of security if recoveries would be available only to secured creditors.

Court Disposition

Production was allowed for the documents sought by Ottoway, refused for Pooncarie's first category of documents, and allowed for Pooncarie's second category of documents.

Orders

  • ['Production of the documents sought by Ottoway allowed.' "Production of Pooncarie's first category of documents not allowed." "Production of Pooncarie's second category of documents allowed." 'The costs of these arguments are to be costs in the security for costs application.']