BCEG Australia v Yu Xiao & Ors (No 2) [2020] NSWSC 1403

BCEG Australia v Yu Xiao & Ors (No 2) [2020] NSWSC 1403

Exceptional circumstances existed justifying issuance of the subpoenas before the close of evidence because the subpoenas were needed for preparation of quantum evidence and no unfair burden or objection was raised by the recipients. The plaintiff was not subverting Practice Note SC Eq 11.

Parties
Plaintiff: BCEG International (Australia) Pty Ltd; First Defendant: Yu Xiao; Second Defendant: Yan Ying Chen; Third Defendant: Interlink Laboratory Pty Ltd; Fourth Defendant: Interlink Wagga Central Pty Ltd; Fifth Defendant: West Wyalong Marketplace Pty Ltd
Jurisdiction
Australia
Judgment Date
13 October 2020
Procedural Posture
Civil / Application to Set Aside Subpoenas Interlocutory
Outcome
Application to set aside subpoenas dismissed with costs.
Legal Topics
Subpoenas, Abuse of Process, Practice Directions
Civil Procedure Equity Commercial Law Subpoenas Abuse of Process Practice Directions

Case Brief

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Parties

BCEG International (Australia) Pty Ltd

Plaintiff

Yu Xiao

First Defendant

Yan Ying Chen

Second Defendant

Interlink Laboratory Pty Ltd

Third Defendant

Interlink Wagga Central Pty Ltd

Fourth Defendant

West Wyalong Marketplace Pty Ltd

Fifth Defendant

Procedural Posture

Civil / Application to Set Aside Subpoenas Interlocutory

Legal Issues

  1. 1 Whether the issuance of subpoenas prior to delivery of evidence constitutes an abuse of process by subverting operation of Practice Note SC Eq 11
  2. 2 Whether there were exceptional circumstances justifying issuance of subpoenas before the close of evidence
  3. 3 Whether the subpoenas were oppressive or placed any unfair burden on the recipients

Ratio Decidendi

Exceptional circumstances existed justifying issuance of the subpoenas before the close of evidence because the subpoenas were needed for preparation of quantum evidence and no unfair burden or objection was raised by the recipients. The plaintiff was not subverting Practice Note SC Eq 11.

Court Disposition

Application to set aside subpoenas dismissed with costs.

Orders

  • Defendants' notice of motion dated 10 September 2020 is dismissed with costs.