In the matter of Mempoll Pty Limited, Anakin Pty Limited and Gold Kings (Australia) Pty Limited [2012] NSWSC 1057

In the matter of Mempoll Pty Limited, Anakin Pty Limited and Gold Kings (Australia) Pty Limited [2012] NSWSC 1057

Exceptional circumstances existed because the Plaintiffs' case depended on financial information needed to value shares and assess alleged undervalue, and that information was asserted to have been withheld from them and was solely or largely in the Defendants' possession. Early disclosure was necessary for expert advice, preparation of evidence, assessment of the parties' cases and the fair disposal of the proceedings, so the notices and subpoena should not be set aside and nunc pro tunc disclosure should be ordered.

Jurisdiction
Australia
Judgment Date
31 August 2012
Procedural Posture
Interlocutory Applications in the Equity Division Corporations List Concerning Disclosure, Notices to Produce and a Subpoena to Produce / Ex Tempore Decision on Applications to Set Aside Notices to Produce and Subpoena, and for Nunc Pro Tunc Disclosure Under Practice Note SC Eq 11
Outcome
Interlocutory Process filed 7 August 2012 dismissed; nunc pro tunc disclosure ordered; production and access directions made; costs ordered to be costs in the cause.
Legal Topics
['practice Note SC Eq 11' 'disclosure Before Evidence' 'exceptional Circumstances' 'notices to Produce' 'subpoena to Produce' 'share Valuation' 'oppression Remedy' 'misleading and Deceptive Conduct']
['practice and Procedure' 'corporations' 'equity' 'civil Procedure'] ['practice Note SC Eq 11' 'disclosure Before Evidence' 'exceptional Circumstances' 'notices to Produce' 'subpoena to Produce' 'share Valuation' 'oppression Remedy' 'misleading and Deceptive Conduct']

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Procedural Posture

Interlocutory Applications in the Equity Division Corporations List Concerning Disclosure, Notices to Produce and a Subpoena to Produce / Ex Tempore Decision on Applications to Set Aside Notices to Produce and Subpoena, and for Nunc Pro Tunc Disclosure Under Practice Note SC Eq 11

Legal Issues

  1. 1 ['Whether notices to produce and a subpoena seeking documents before evidence should be set aside because they were served contrary to Practice Note SC Eq 11.' 'Whether exceptional circumstances existed to warrant disclosure before evidence was served.' 'Whether the documents sought were necessary for the resolution of the real issues in dispute and for a fair trial.' 'What time and access directions should be made for production of documents.']

Ratio Decidendi

Exceptional circumstances existed because the Plaintiffs' case depended on financial information needed to value shares and assess alleged undervalue, and that information was asserted to have been withheld from them and was solely or largely in the Defendants' possession. Early disclosure was necessary for expert advice, preparation of evidence, assessment of the parties' cases and the fair disposal of the proceedings, so the notices and subpoena should not be set aside and nunc pro tunc disclosure should be ordered.

Court Disposition

Interlocutory Process filed 7 August 2012 dismissed; nunc pro tunc disclosure ordered; production and access directions made; costs ordered to be costs in the cause.

Orders

  • ['The application brought by the Fourth, Fifth and Sixth Defendants dated 7 August 2012 be dismissed.' 'An order nunc pro tunc for disclosure of documents sought in the Notices to Produce from the first plaintiff addressed to each of the Fourth, Fifth and Sixth Defendants dated 28 June 2012, 29 June 2012 and 18 July...