Zong v Lin [2021] NSWCA 209

Zong v Lin [2021] NSWCA 209

The subpoena had a legitimate forensic purpose because the evidence established, for the purpose of apparent relevance, that account 33664, although not in the appellants' names, may have been controlled or used by them and may show funds available to conduct the appeal but not to satisfy an adverse costs order. The date range was not too wide because historical transactions from January 2019 were relevant to showing a pattern of use and possible financial resources. The proximity of the subpoena to unsuccessful garnishee orders did not, without more, establish improper purpose. The motion to set aside the subpoena therefore failed.

Jurisdiction
Australia
Judgment Date
08 September 2021
Procedural Posture
Civil Procedure Application to Set Aside Subpoena to Produce Documents in an Appeal / Court of Appeal Motions List; Notice of Motion Dated 20 August 2021 Concerning Subpoena Issued in Connection With Pending Application for Security for Costs of the Appeal
Outcome
Applicants' notice of motion to set aside the subpoena dismissed with costs.
Legal Topics
['subpoenas to Produce Documents' 'application to Set Aside Subpoena' 'legitimate Forensic Purpose' 'abuse of Process' 'security for Costs' 'adjournment' 'costs of Motion']
['civil Procedure' 'appellate Procedure'] ['subpoenas to Produce Documents' 'application to Set Aside Subpoena' 'legitimate Forensic Purpose' 'abuse of Process' 'security for Costs' 'adjournment' 'costs of Motion']

Case Brief

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Procedural Posture

Civil Procedure Application to Set Aside Subpoena to Produce Documents in an Appeal / Court of Appeal Motions List; Notice of Motion Dated 20 August 2021 Concerning Subpoena Issued in Connection With Pending Application for Security for Costs of the Appeal

Legal Issues

  1. 1 ['Whether the subpoena to ANZ for documents relating to account 33664 was issued for a legitimate forensic purpose.' "Whether the documents sought had apparent relevance to the respondents' pending application for security for costs of the appeal." 'Whether the subpoena was too broad in its date range.' 'Whether the subpoena was issued for the improper purpose of aiding enforcement of the judgment below.' "Whether the applicants' request for an adjournment should be granted."]

Ratio Decidendi

The subpoena had a legitimate forensic purpose because the evidence established, for the purpose of apparent relevance, that account 33664, although not in the appellants' names, may have been controlled or used by them and may show funds available to conduct the appeal but not to satisfy an adverse costs order. The date range was not too wide because historical transactions from January 2019 were relevant to showing a pattern of use and possible financial resources. The proximity of the subpoena to unsuccessful garnishee orders did not, without more, establish improper purpose. The motion to set aside the subpoena therefore failed.

Court Disposition

Applicants' notice of motion to set aside the subpoena dismissed with costs.

Orders

  • ["Dismiss the applicants' notice of motion dated 20 August 2021." "The applicants to pay the respondents' costs of the motion."]