Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169

Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169

The motion was dismissed because Easytel failed to prove that Mr Mitchell's 12 May 2020 affidavit was improperly obtained or that reliance on it was an abuse of process; the plaintiffs' use of the 13 December 2019 affidavits of Ms Barakat and Mr Youssef for the search order application in the same proceeding did not breach the Harman obligation; the Norwich-style affidavits could be used for steps to preserve alleged confidential information; the search orders were obtained against Easytel Australia and Easytel Group rather than against the deponents; and the transcript complaints were not shown to warrant the requested discharge orders.

Jurisdiction
Australia
Judgment Date
31 August 2020
Procedural Posture
Equity Applications List; Practice and Procedure Application Concerning Search Orders / Notice of Motion by the Fourth Defendant and the First Respondent Seeking Discharge of Ex Parte Search Orders and Related Relief
Outcome
The notice of motion filed by the fourth defendant and the first respondent was dismissed.
Legal Topics
['search Orders' 'ex Parte Applications' 'discharge of Search Orders' 'harman Obligation' 'norwich Style Affidavits' 'abuse of Process' 'undertakings to the Court' 'costs']
['practice and Procedure' 'equity'] ['search Orders' 'ex Parte Applications' 'discharge of Search Orders' 'harman Obligation' 'norwich Style Affidavits' 'abuse of Process' 'undertakings to the Court' 'costs']

Case Brief

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Procedural Posture

Equity Applications List; Practice and Procedure Application Concerning Search Orders / Notice of Motion by the Fourth Defendant and the First Respondent Seeking Discharge of Ex Parte Search Orders and Related Relief

Legal Issues

  1. 1 ["Whether the search orders made on 15 May 2020 should be discharged because the plaintiffs allegedly improperly obtained and relied on Mr Mitchell's affidavit sworn on 12 May 2020." 'Whether the plaintiffs breached the Harman obligation by using affidavits of Ms Barakat and Mr Youssef affirmed on 13 December 2019 in support of the search order application without leave.' 'Whether alleged failures to provide transcripts in accordance with undertakings warranted discharge of the search orders.' 'Whether the plaintiffs should pay the costs of the search order application and whether costs should follow the event on the motion.']

Ratio Decidendi

The motion was dismissed because Easytel failed to prove that Mr Mitchell's 12 May 2020 affidavit was improperly obtained or that reliance on it was an abuse of process; the plaintiffs' use of the 13 December 2019 affidavits of Ms Barakat and Mr Youssef for the search order application in the same proceeding did not breach the Harman obligation; the Norwich-style affidavits could be used for steps to preserve alleged confidential information; the search orders were obtained against Easytel Australia and Easytel Group rather than against the deponents; and the transcript complaints were not shown to warrant the requested discharge orders.

Court Disposition

The notice of motion filed by the fourth defendant and the first respondent was dismissed.

Orders

  • ['The notice of motion filed by the fourth defendant (Easytel Australia Pty Ltd) and the first respondent (Easytel Group Pty Ltd) on 4 August 2020 is dismissed.' "Subject to order (3), Easytel Australia Pty Ltd and Easytel Group Pty Ltd are to pay the plaintiffs' costs of and incidental to that notice of motion."...