Morgan v Sydney Allen Manufacturing Pty Ltd (Deregistered) [2021] FCA 1020

Morgan v Sydney Allen Manufacturing Pty Ltd (Deregistered) [2021] FCA 1020

The disputed paragraphs of the notice to produce amounted to a fishing exercise, seeking documents of which McMillan was altogether ignorant and not able to show apparent relevance to the substantive application for reinstatement or pooling order, nor to its application for inquiry. Accordingly, those paragraphs should be set aside.

Parties
First Plaintiff: John Maxwell Morgan; Second Plaintiff: Sydney Allen Printers Pty Ltd (In Liquidation); First Defendant: Sydney Allen Manufacturing Pty Ltd (Deregistered); Second Defendant: Australian Securities and Investments Commission; Third Defendant: McMillan Investment Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
18 August 2021
Procedural Posture
Commercial and Corporations Corporations and Corporate Insolvency / Interlocutory Application to Set Aside Notice to Produce
Outcome
Notice to produce (pars 2(h)–(o) and 3) set aside; costs awarded to applicants.
Legal Topics
Notice to Produce, Harman Undertaking, Pooling Order, Liquidator Appointment, Inquiry Into External Administration
Practice and Procedure Corporations Law Insolvency Notice to Produce Harman Undertaking Pooling Order Liquidator Appointment Inquiry Into External Administration

Case Brief

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Parties

John Maxwell Morgan

First Plaintiff

Sydney Allen Printers Pty Ltd (In Liquidation)

Second Plaintiff

Sydney Allen Manufacturing Pty Ltd (Deregistered)

First Defendant

Australian Securities and Investments Commission

Second Defendant

McMillan Investment Holdings Pty Ltd

Third Defendant

Procedural Posture

Commercial and Corporations Corporations and Corporate Insolvency / Interlocutory Application to Set Aside Notice to Produce

Legal Issues

  1. 1 Whether to set aside paragraphs 2(h)–(o) and 3 of the third defendant's notice to produce
  2. 2 Whether the documents sought relate to apparent relevance, or amount to 'fishing'
  3. 3 Application of Harman undertaking to production of documents from prior proceedings

Ratio Decidendi

The disputed paragraphs of the notice to produce amounted to a fishing exercise, seeking documents of which McMillan was altogether ignorant and not able to show apparent relevance to the substantive application for reinstatement or pooling order, nor to its application for inquiry. Accordingly, those paragraphs should be set aside.

Court Disposition

Notice to produce (pars 2(h)–(o) and 3) set aside; costs awarded to applicants.

Orders

  • Paragraphs 2(h) to (o) and 3 of the third defendant's notice to produce dated 4 March 2021 be set aside.
  • The plaintiffs produce to the third defendant the ledgers from which the sums referred to in paragraph 33 of the notice to produce are derived on or before 1 September 2021.