Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1744

Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1744

The subpoena to Lloyd & Barclay Lawyers Pty Ltd was set aside because, although narrower categories such as retainer letters and invoices might have assisted a dispute about whether a retainer existed, the demand for the solicitors' entire file from 30 June 2009 to date went well beyond any legitimate purpose on a s 237 leave application and risked production of privileged material. The first notices to produce original documents were set aside because no present issue of authenticity had been raised and production was not on the cards to advance issues to be determined on the leave application. Paragraph 1 and paragraphs overlapping the solicitor subpoena in the second notices to produce...

Jurisdiction
Australia
Judgment Date
12 November 2014
Procedural Posture
Interlocutory Applications / Notice of Motion by the Second and Third Defendants to Set Aside a Subpoena and Notices to Produce
Outcome
The Second and Third Defendants were substantially successful. The subpoena was set aside, the first notices to produce were set aside, specified paragraphs of the second notices to produce were set aside, production was ordered for paragraphs 3 and 4 of the remaining notice to produce, and costs were ordered to be...
Legal Topics
['subpoenas' 'notices to Produce' 'legitimate Forensic Purpose' 'derivative Proceedings' 'disclosure' 'case Management']
['civil Procedure' 'equity' 'corporations'] ['subpoenas' 'notices to Produce' 'legitimate Forensic Purpose' 'derivative Proceedings' 'disclosure' 'case Management']

Case Brief

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Procedural Posture

Interlocutory Applications / Notice of Motion by the Second and Third Defendants to Set Aside a Subpoena and Notices to Produce

Legal Issues

  1. 1 ['Whether the subpoena to Lloyd & Barclay Lawyers Pty Ltd sought production for a legitimate forensic purpose or was too broad, oppressive or an abuse of process.' 'Whether the first notices to produce requiring original documents referred to in an affidavit should be set aside for lack of relevance or legitimate forensic purpose at the leave stage.' 'Whether paragraphs of the second notices to produce were relevant, sufficiently confined, and consistent with SC Eq Practice Note 11.' 'Whether notices to produce were being used as an unregulated substitute for disclosure by REW.']

Ratio Decidendi

The subpoena to Lloyd & Barclay Lawyers Pty Ltd was set aside because, although narrower categories such as retainer letters and invoices might have assisted a dispute about whether a retainer existed, the demand for the solicitors' entire file from 30 June 2009 to date went well beyond any legitimate purpose on a s 237 leave application and risked production of privileged material. The first notices to produce original documents were set aside because no present issue of authenticity had been raised and production was not on the cards to advance issues to be determined on the leave application. Paragraph 1 and paragraphs overlapping the solicitor subpoena in the second notices to produce...

Court Disposition

The Second and Third Defendants were substantially successful. The subpoena was set aside, the first notices to produce were set aside, specified paragraphs of the second notices to produce were set aside, production was ordered for paragraphs 3 and 4 of the remaining notice to produce, and costs were ordered to be...

Orders

  • ['The subpoena issued at the request of the Plaintiffs to Lloyd & Barclay Lawyers Pty Ltd be set aside.' 'The Notice to Produce dated 8 October 2014 in eight paragraphs issued to each of Ms Rosinska and Mr Rudi calling for the production of original documents referred to in the affidavit of Ms Rastrigo be set...