Simpson v Monteith and Ors [2009] NSWSC 156

Simpson v Monteith and Ors [2009] NSWSC 156

The plaintiff displaced Perpetual's prima facie entitlement to reasonable subpoena compliance costs. Perpetual's prior conduct left the plaintiff with little alternative but to issue the subpoena and made that course reasonable; compliance on 6 June 2008 was not insisted on or required by the plaintiff and arose from miscommunications involving Perpetual, its solicitors and the plaintiff's solicitors; and Perpetual's later joinder as a party meant it probably would have had to produce the documents in any event, with such costs ordinarily being costs in the cause.

Jurisdiction
Australia
Judgment Date
18 March 2009
Procedural Posture
Procedural and Other Ruling on Subpoena Costs / Fifth Defendant's Notice of Motion Dated 19 December 2008, Order 7, Seeking Costs of Responding to a Subpoena Under UCPR 33.11(1)
Outcome
Order 7 in the fifth defendant's Notice of Motion of 19 December 2008 was refused; the fifth defendant was ordered to pay the plaintiff's costs of arguing the question, limited to additional costs incurred.
Legal Topics
['subpoena' 'costs of Responding to Subpoena' 'beneficiary Access to Trust Documents' 'legal Professional Privilege' 'joinder of Subpoena Recipient as Party']
['practice and Procedure' 'costs' 'trusts'] ['subpoena' 'costs of Responding to Subpoena' 'beneficiary Access to Trust Documents' 'legal Professional Privilege' 'joinder of Subpoena Recipient as Party']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Procedural and Other Ruling on Subpoena Costs / Fifth Defendant's Notice of Motion Dated 19 December 2008, Order 7, Seeking Costs of Responding to a Subpoena Under UCPR 33.11(1)

Legal Issues

  1. 1 ['Whether the fifth defendant should have an order under UCPR 33.11(1) requiring the plaintiff to pay its reasonable loss or expense incurred in complying with the subpoena.' "Whether Perpetual's conduct before the subpoena, including its response to requests for trust documents, was relevant to the discretion under UCPR 33.11(1)." 'Whether communications after service of the subpoena showed that the plaintiff insisted on formal compliance on 6 June 2008 rather than informal production or inspection.' "Whether Perpetual's subsequent joinder as a defendant affected its entitlement to subpoena compliance costs."]

Ratio Decidendi

The plaintiff displaced Perpetual's prima facie entitlement to reasonable subpoena compliance costs. Perpetual's prior conduct left the plaintiff with little alternative but to issue the subpoena and made that course reasonable; compliance on 6 June 2008 was not insisted on or required by the plaintiff and arose from miscommunications involving Perpetual, its solicitors and the plaintiff's solicitors; and Perpetual's later joinder as a party meant it probably would have had to produce the documents in any event, with such costs ordinarily being costs in the cause.

Court Disposition

Order 7 in the fifth defendant's Notice of Motion of 19 December 2008 was refused; the fifth defendant was ordered to pay the plaintiff's costs of arguing the question, limited to additional costs incurred.

Orders

  • ["Order 7 in the fifth defendant's Notice of Motion of 19 December 2008 is refused." "The fifth defendant is to pay the plaintiff's costs of arguing this question but only to the extent that the plaintiff has incurred additional costs."]