In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253

In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253

The subpoenas were subpoenas to produce, not subpoenas to attend. Under the Uniform Civil Procedure Rules, conduct money is required only for subpoenas to attend, and recovery of expenses for subpoenas to produce is governed by r 33.11, which is directed to reasonable loss or expenditure incurred in complying with the subpoena. In the absence of special facts beyond evidence of the cost of compliance, and with no suggestion that the issuing parties could not comply with any later order for expenses, ordering prepayment or setting aside the subpoenas for lack of tender would be contrary to the policy and terms of the new rules.

Jurisdiction
Australia
Judgment Date
30 March 2006
Procedural Posture
Application by Notice of Motion Concerning Subpoenas to Produce and Payment of Expenses of Compliance / Ex Tempore Judgment on Application for Advance Payment of Expenses or Costs, or Alternatively to Set Aside Subpoenas
Outcome
Application for advance payment of expenses denied; notice of motion dismissed; applicants ordered to pay respondents' costs of the application.
Legal Topics
['subpoena to Produce' 'conduct Money' 'reasonable Expenses of Compliance' 'uniform Civil Procedure Rules' 'application to Set Aside Subpoena']
['practice and Procedure' 'civil Procedure'] ['subpoena to Produce' 'conduct Money' 'reasonable Expenses of Compliance' 'uniform Civil Procedure Rules' 'application to Set Aside Subpoena']

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Procedural Posture

Application by Notice of Motion Concerning Subpoenas to Produce and Payment of Expenses of Compliance / Ex Tempore Judgment on Application for Advance Payment of Expenses or Costs, or Alternatively to Set Aside Subpoenas

Legal Issues

  1. 1 ['Whether the Court should order advance payment of expenses or costs reasonably to be incurred in answering subpoenas to produce under the Uniform Civil Procedure Rules.' 'Whether conduct money was required for subpoenas to produce.' 'Whether the subpoenas should be set aside because no conduct money or reasonable expenses had been tendered and compliance would be costly.']

Ratio Decidendi

The subpoenas were subpoenas to produce, not subpoenas to attend. Under the Uniform Civil Procedure Rules, conduct money is required only for subpoenas to attend, and recovery of expenses for subpoenas to produce is governed by r 33.11, which is directed to reasonable loss or expenditure incurred in complying with the subpoena. In the absence of special facts beyond evidence of the cost of compliance, and with no suggestion that the issuing parties could not comply with any later order for expenses, ordering prepayment or setting aside the subpoenas for lack of tender would be contrary to the policy and terms of the new rules.

Court Disposition

Application for advance payment of expenses denied; notice of motion dismissed; applicants ordered to pay respondents' costs of the application.

Orders

  • ['The notice of motion is dismissed.' "The applicants in the notice of motion are to pay the respondents' costs of the application."]