Mizuho Bank Ltd v Ackroyd (No 3) [2018] NSWSC 54

Mizuho Bank Ltd v Ackroyd (No 3) [2018] NSWSC 54

Because the defendant's notices to produce were served after disclosure and in substance sought further disclosure, the defendant had to show both relevance to a fact in issue and necessity for the resolution of the real issues in dispute. The Bank's internal policies, rules and requirements concerning taking guarantees were capable of relevance and necessary to the unjust-contract issues. Documents explaining the circumstances of Mr Setogawa's cessation of employment were also necessary because the late disclosure of his departure and substitution of another deponent made the circumstances capable of relevance. However, production of his whole personnel file was too broad and likely to...

Jurisdiction
Australia
Judgment Date
02 February 2018
Procedural Posture
Application to Set Aside Notices to Produce in Equity Commercial List Proceedings Seeking Recovery Under Guarantees / Pre Trial Procedural Ruling After Evidence and Disclosure, With Hearing Listed to Commence 5 March 2018
Outcome
Paragraph 1 of the defendant's Notice to Produce dated 29 January 2018 was set aside; the plaintiff's Amended Notice of Motion was otherwise dismissed.
Legal Topics
['notice to Produce' 'disclosure' 'further Discovery' 'contracts Review Act Guarantees' 'production of Personnel Records']
['practice and Procedure' 'equity Commercial List' 'contracts'] ['notice to Produce' 'disclosure' 'further Discovery' 'contracts Review Act Guarantees' 'production of Personnel Records']

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Procedural Posture

Application to Set Aside Notices to Produce in Equity Commercial List Proceedings Seeking Recovery Under Guarantees / Pre Trial Procedural Ruling After Evidence and Disclosure, With Hearing Listed to Commence 5 March 2018

Legal Issues

  1. 1 ['Whether notices to produce served after disclosure, and shortly before trial, should be set aside where they in substance seek further disclosure of documents.' 'Whether the defendant had to show that the documents sought were not only relevant to a fact in issue but necessary for the resolution of the real issues in dispute.' "Whether the Bank's internal policies, rules and requirements concerning the taking of guarantees from individuals should be produced." 'Whether documents concerning the cessation of employment of Mr Shunichi Setogawa, and his personnel file, should be produced.']

Ratio Decidendi

Because the defendant's notices to produce were served after disclosure and in substance sought further disclosure, the defendant had to show both relevance to a fact in issue and necessity for the resolution of the real issues in dispute. The Bank's internal policies, rules and requirements concerning taking guarantees were capable of relevance and necessary to the unjust-contract issues. Documents explaining the circumstances of Mr Setogawa's cessation of employment were also necessary because the late disclosure of his departure and substitution of another deponent made the circumstances capable of relevance. However, production of his whole personnel file was too broad and likely to...

Court Disposition

Paragraph 1 of the defendant's Notice to Produce dated 29 January 2018 was set aside; the plaintiff's Amended Notice of Motion was otherwise dismissed.

Orders

  • ["Paragraph 1 of the defendant's Notice to Produce of 29 January 2018 is set aside." "The plaintiff's Amended Notice of Motion of 2 February 2018 is otherwise dismissed." 'The Court will hear the parties as to costs.']