SSPeetham Pty Ltd as trustee for the CHB CDI Trust v Marcos Accountants Pty Ltd [2020] NSWSC 378

SSPeetham Pty Ltd as trustee for the CHB CDI Trust v Marcos Accountants Pty Ltd [2020] NSWSC 378

The Notice to Produce was set aside because the categories sought were not tethered to any existing application, did not serve a legitimate forensic purpose, or were based on information publicly available before the earlier security application. The application for further security for costs was dismissed because the defendants did not establish a material change in circumstances since 13 December 2019: speculation about Mr Tolley's charges or undertakings did not affect the existing bank guarantee or likely costs, the plaintiff's case had narrowed by abandoning breach of confidence, and underestimated or overlooked costs existing at the earlier hearing could not amount to a later...

Jurisdiction
Australia
Judgment Date
08 April 2020
Procedural Posture
Equity Commercial List / Notices of Motion Concerning Further Security for Costs and Setting Aside a Notice to Produce
Outcome
Notice to produce to Court dated 27 March 2020 set aside; application for further security for costs dismissed.
Legal Topics
['security for Costs' 'further Security for Costs' 'notice to Produce' 'legitimate Forensic Purpose' 'material Change in Circumstances']
['costs' 'practice and Procedure'] ['security for Costs' 'further Security for Costs' 'notice to Produce' 'legitimate Forensic Purpose' 'material Change in Circumstances']

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Procedural Posture

Equity Commercial List / Notices of Motion Concerning Further Security for Costs and Setting Aside a Notice to Produce

Legal Issues

  1. 1 ['Whether the Notice to Produce dated 27 March 2020 should be set aside for want of a legitimate forensic purpose or because the documents sought were not likely to assist on a material issue.' 'Whether the first and second defendants established a material change in circumstances since 13 December 2019 sufficient to justify further security for costs.']

Ratio Decidendi

The Notice to Produce was set aside because the categories sought were not tethered to any existing application, did not serve a legitimate forensic purpose, or were based on information publicly available before the earlier security application. The application for further security for costs was dismissed because the defendants did not establish a material change in circumstances since 13 December 2019: speculation about Mr Tolley's charges or undertakings did not affect the existing bank guarantee or likely costs, the plaintiff's case had narrowed by abandoning breach of confidence, and underestimated or overlooked costs existing at the earlier hearing could not amount to a later...

Court Disposition

Notice to produce to Court dated 27 March 2020 set aside; application for further security for costs dismissed.

Orders

  • ['The Notice to Produce dated 27 March 2020 is set aside.' "The Marcos Parties are to pay SSPeetham's costs of its Notice of Motion of 31 March 2020." "The first and second defendants' Notice of Motion of 26 March 2020 is dismissed with costs."]