In the matter of Stone Cliff Pty Ltd (deregistered) and others [2017] NSWSC 918

In the matter of Stone Cliff Pty Ltd (deregistered) and others [2017] NSWSC 918

Paragraph 3 of the notice to produce was set aside because the documents sought were unnecessary to establish the fact of delay, as the relevant dates and steps were already available on the evidence, and any broader case of improper or unreasonable delay had not been made or particularised; using compulsory production to investigate whether such a case might exist would be impermissible fishing.

Jurisdiction
Australia
Judgment Date
08 May 2017
Procedural Posture
Interlocutory Application in Proceedings Seeking an Inquiry Under S 536 of the Corporations Act 2001 (cth) / Application to Set Aside Paragraph 3 of a Notice to Produce Dated 2 March 2017; Ex Tempore Judgment
Outcome
Paragraph 3 of the notice to produce dated 2 March 2017 was set aside and the First Defendant was ordered to pay the costs of the hearing.
Legal Topics
['notices to Produce Before Hearing' 'legitimate Forensic Purpose' 'relevance to Facts in Issue' 'fishing' "liquidators' Conduct Inquiry" 'costs']
['civil Procedure' 'corporations Law'] ['notices to Produce Before Hearing' 'legitimate Forensic Purpose' 'relevance to Facts in Issue' 'fishing' "liquidators' Conduct Inquiry" 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application in Proceedings Seeking an Inquiry Under S 536 of the Corporations Act 2001 (cth) / Application to Set Aside Paragraph 3 of a Notice to Produce Dated 2 March 2017; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether paragraph 3 of the notice to produce had a legitimate forensic purpose and apparent relevance to issues for determination.' "Whether documents evidencing or recording ASIC's decision to commence an investigation were necessary or relevant to an argument about delay in commencing proceedings." 'Whether the notice to produce was impermissible fishing if directed to a possible allegation of abuse of process or unreasonable delay not yet made or particularised.' 'Whether ASIC should receive costs of the hearing concerning paragraph 3 of the notice to produce.']

Ratio Decidendi

Paragraph 3 of the notice to produce was set aside because the documents sought were unnecessary to establish the fact of delay, as the relevant dates and steps were already available on the evidence, and any broader case of improper or unreasonable delay had not been made or particularised; using compulsory production to investigate whether such a case might exist would be impermissible fishing.

Court Disposition

Paragraph 3 of the notice to produce dated 2 March 2017 was set aside and the First Defendant was ordered to pay the costs of the hearing.

Orders

  • ['Set aside paragraph 3 of the notice to produce dated 2 March 2017.' 'Order that Mr Wily pay the costs of the hearing today in respect of paragraph 3 of the notice to produce, as agreed or as assessed.']