In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2021] NSWSC 242

In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2021] NSWSC 242

The documents within subparagraphs (a) to (d) of category 1 were documents provided by Levitt Robinson to the Funder under the Funding Agreement entered into by the Liquidator and would materially assist the question whether entry into that agreement and the obligations it created constituted a breach of the Liquidator's duties. Category 1 more broadly had a legitimate forensic purpose because documents relating to the examinations and provided to the Funder, in circumstances where the Funder was alleged to be funding the Franchisee Damages Claims, were likely to materially assist the pleaded allegation that examinations were conducted to gather information for the benefit of franchisees....

Jurisdiction
Australia
Judgment Date
16 March 2021
Procedural Posture
Equity Corporations List; Application to Set Aside Subpoena / Interlocutory Process Before Final Hearing
Outcome
Subpoena set aside in part. Application to set aside subpoena otherwise dismissed, save in relation to costs.
Legal Topics
['subpoena' 'legitimate Forensic Purpose' 'public Examinations' 'liquidator Duties' 'litigation Funding']
['civil Procedure' 'corporations'] ['subpoena' 'legitimate Forensic Purpose' 'public Examinations' 'liquidator Duties' 'litigation Funding']

Case Brief

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Procedural Posture

Equity Corporations List; Application to Set Aside Subpoena / Interlocutory Process Before Final Hearing

Legal Issues

  1. 1 ['Whether the subpoena issued to Stewart Alan Levitt trading as Levitt Robinson Solicitors had a legitimate forensic purpose insofar as it required production of documents in categories 1 and 3.' 'Whether categories 1 and 3 of the subpoena should be set aside under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether access to documents produced under the subpoena should be general access or first access to the Liquidator.']

Ratio Decidendi

The documents within subparagraphs (a) to (d) of category 1 were documents provided by Levitt Robinson to the Funder under the Funding Agreement entered into by the Liquidator and would materially assist the question whether entry into that agreement and the obligations it created constituted a breach of the Liquidator's duties. Category 1 more broadly had a legitimate forensic purpose because documents relating to the examinations and provided to the Funder, in circumstances where the Funder was alleged to be funding the Franchisee Damages Claims, were likely to materially assist the pleaded allegation that examinations were conducted to gather information for the benefit of franchisees....

Court Disposition

Subpoena set aside in part. Application to set aside subpoena otherwise dismissed, save in relation to costs.

Orders

  • ['Note that the plaintiffs do not press for production of documents falling within category 2 of the schedule to the subpoena issued by the plaintiffs on 24 February 2021 to Stewart Alan Levitt trading as Levitt Robinson Solicitors (the Subpoena).' 'Order that the Subpoena is set aside insofar as it requires...