In the matter of Phoenix Rising Investments Pty Ltd; Grace v Grace [2010] NSWSC 758

In the matter of Phoenix Rising Investments Pty Ltd; Grace v Grace [2010] NSWSC 758

Paragraph 1 was set aside because advice to Nevilda Holdings or its provisional liquidator about the Nevilda Investments Pty Limited Superannuation Fund, including any opinion that Deborah Grace's and Julienne Grace's conduct was regular, would be a third party opinion on issues for the Court and would not add to the relevant evidence. Paragraph 4 was set aside because whether Nevilda Holdings acted as trustee after 18 January 2007 was not a real issue in the proceedings, there was no apparent relevance in acts by Nevilda Holdings purportedly as trustee after that date, and there was no evidentiary basis for supposing such documents existed.

Jurisdiction
Australia
Judgment Date
03 May 2010
Procedural Posture
Application to Set Aside Notice to Produce / Notice of Motion; Ex Tempore Procedural Ruling
Outcome
Paragraphs 1 and 4 of the first and second defendants' notice to produce dated 9 March 2010 were set aside.
Legal Topics
['notice to Produce' 'production of Documents' 'apparent Relevance' 'legitimate Forensic Purpose' 'superannuation Trust']
['civil Procedure' 'evidence' 'equity'] ['notice to Produce' 'production of Documents' 'apparent Relevance' 'legitimate Forensic Purpose' 'superannuation Trust']

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Procedural Posture

Application to Set Aside Notice to Produce / Notice of Motion; Ex Tempore Procedural Ruling

Legal Issues

  1. 1 ["Whether paragraph 1 of the first and second defendants' notice to produce had apparent relevance to the issues in the proceedings." "Whether paragraph 4 of the first and second defendants' notice to produce had a legitimate forensic purpose." 'Whether documents concerning advice to Nevilda Holdings, or acts by Nevilda Holdings as trustee after 18 January 2007, were relevant to the pleaded dispute about dealings with the Nevilda Superannuation Trust.']

Ratio Decidendi

Paragraph 1 was set aside because advice to Nevilda Holdings or its provisional liquidator about the Nevilda Investments Pty Limited Superannuation Fund, including any opinion that Deborah Grace's and Julienne Grace's conduct was regular, would be a third party opinion on issues for the Court and would not add to the relevant evidence. Paragraph 4 was set aside because whether Nevilda Holdings acted as trustee after 18 January 2007 was not a real issue in the proceedings, there was no apparent relevance in acts by Nevilda Holdings purportedly as trustee after that date, and there was no evidentiary basis for supposing such documents existed.

Court Disposition

Paragraphs 1 and 4 of the first and second defendants' notice to produce dated 9 March 2010 were set aside.

Orders

  • ["Paragraphs 1 and 4 of the first and second defendants' notice to produce dated 9 March 2010 be set aside." "The first and second defendants pay the third defendant's costs of the motion." 'Directions made in accordance with the document entitled Directions initialled by Brereton J, dated 3 May 2010 and placed with...