Kendell v Solomons (Liquidator); In the Matter of ACN 154 582 288 (formerly E-tivity Corporation (APAC) Pty Limited) (In Liq) [2015] FCA 164

Kendell v Solomons (Liquidator); In the Matter of ACN 154 582 288 (formerly E-tivity Corporation (APAC) Pty Limited) (In Liq) [2015] FCA 164

The Court gave effect to the parties' agreement for production of Mr Smith SC's opinion and documents within paragraphs D(1) to (6), dismissed the remaining claims, and made no order as to costs because both sides bore responsibility for the litigation: the defendants acted unreasonably in not producing the advice, while the plaintiff pursued many unsustainable claims for production.

Jurisdiction
Australia
Judgment Date
03 March 2015
Procedural Posture
Corporations Proceeding Concerning Production of Documents by Liquidators / Hearing of Amended Originating Application and Costs
Outcome
Leave to amend granted; agreed production orders made; remaining claims dismissed; no order as to costs.
Legal Topics
["liquidators' Records" 'production of Documents' "counsel's Opinion Obtained by Liquidators" 'winding Up' 'no Order as to Costs']
['corporations Law' 'insolvency' 'civil Procedure' 'costs'] ["liquidators' Records" 'production of Documents' "counsel's Opinion Obtained by Liquidators" 'winding Up' 'no Order as to Costs']

Case Brief

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Procedural Posture

Corporations Proceeding Concerning Production of Documents by Liquidators / Hearing of Amended Originating Application and Costs

Legal Issues

  1. 1 ['Whether the defendants should produce to the plaintiff the written advice or opinion dated 18 November 2014 obtained from Mr RM Smith SC.' "Whether the defendants should produce documents in their possession, custody, control or power falling within paragraphs D(1) to (6) of the plaintiff's Amended Originating Application." 'What costs order should be made where the defendants agreed to produce documents but the plaintiff had pursued and abandoned numerous claims.']

Ratio Decidendi

The Court gave effect to the parties' agreement for production of Mr Smith SC's opinion and documents within paragraphs D(1) to (6), dismissed the remaining claims, and made no order as to costs because both sides bore responsibility for the litigation: the defendants acted unreasonably in not producing the advice, while the plaintiff pursued many unsustainable claims for production.

Court Disposition

Leave to amend granted; agreed production orders made; remaining claims dismissed; no order as to costs.

Orders

  • ['Leave be granted to the plaintiff to amend his Originating Application in accordance with the Amended Originating Application handed up in Court this day (3 March 2015), initialled by Foster J and dated today, such Amended Originating Application to be filed electronically by 4 March 2015.' 'Service of the said...