Owston Nominees No 2 Pty Limited v Branir Pty Limited [2002] FCA 1308

Owston Nominees No 2 Pty Limited v Branir Pty Limited [2002] FCA 1308

The correspondence made it tolerably clear that the first and third respondents proffered the consent injunction orders on the basis that the notice to produce to them would not be called on. Even if that did not amount to a formal binding contract, the applicants had obtained the benefit of the orders on that clear basis, and the Court therefore set aside the notice to produce and ordered the applicants to pay the first and third respondents' costs of the argument.

Jurisdiction
Australia
Judgment Date
21 October 2002
Procedural Posture
Interlocutory Civil Proceeding Concerning a Notice to Produce / Argument on Whether the Applicants Could Continue to Call on a Notice to Produce Dated 25 September 2002 to the First and Third Respondents
Outcome
Notice to produce set aside; applicants ordered to pay costs of the argument.
Legal Topics
['notice to Produce' 'consent Orders' 'interlocutory Injunction' 'costs' 'shareholder Access to Company Records']
['civil Procedure' 'commercial Litigation' 'corporations'] ['notice to Produce' 'consent Orders' 'interlocutory Injunction' 'costs' 'shareholder Access to Company Records']

Case Brief

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Procedural Posture

Interlocutory Civil Proceeding Concerning a Notice to Produce / Argument on Whether the Applicants Could Continue to Call on a Notice to Produce Dated 25 September 2002 to the First and Third Respondents

Legal Issues

  1. 1 ['Whether the notice to produce dated 25 September 2002 to the first and third respondents should continue to be called on after the respondents proffered consent injunction orders on a conditional basis.' 'Whether correspondence between the solicitors amounted to, or should be given effect as, an agreement or basis that there would be no call on the notice to produce.' 'What costs order should be made in relation to the argument.']

Ratio Decidendi

The correspondence made it tolerably clear that the first and third respondents proffered the consent injunction orders on the basis that the notice to produce to them would not be called on. Even if that did not amount to a formal binding contract, the applicants had obtained the benefit of the orders on that clear basis, and the Court therefore set aside the notice to produce and ordered the applicants to pay the first and third respondents' costs of the argument.

Court Disposition

Notice to produce set aside; applicants ordered to pay costs of the argument.

Orders

  • ['The notice to produce dated 25 September 2002 to the first and third respondents be set aside.' "The applicants pay the first and third respondent's costs of the argument today."]