Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909

Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909

The subpoenas were not an abuse of process or a fishing expedition; the defendants established a legitimate forensic purpose by seeking documents necessary for their security for costs application. The notice to produce was too broad and insufficiently particularised, thus was set aside, but the defendants may issue a properly framed notice. Costs of the application to set aside the subpoenas are to be paid by the plaintiff; each party bears its own costs regarding the notice to produce.

Jurisdiction
Australia
Judgment Date
17 July 2019
Procedural Posture
Procedural Interlocutory Application / Application to Set Aside Subpoenas and Notice to Produce, Pre Trial
Outcome
Plaintiff's application to set aside the subpoenas is dismissed; notice to produce is set aside with leave to issue a revised version. Costs orders as specified.
Legal Topics
['subpoenas' 'notice to Produce' 'security for Costs' 'disclosure of Documents' 'practice Note SC Eq 11']
['civil Procedure' 'equity'] ['subpoenas' 'notice to Produce' 'security for Costs' 'disclosure of Documents' 'practice Note SC Eq 11']

Case Brief

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Procedural Posture

Procedural Interlocutory Application / Application to Set Aside Subpoenas and Notice to Produce, Pre Trial

Legal Issues

  1. 1 ['Whether the subpoenas issued to National Australia Bank Ltd and Australian and New Zealand Banking Group Ltd should be set aside as lacking a legitimate forensic purpose, amounting to a fishing expedition, or subverting Practice Note SC Eq 11.' 'Whether the notice to produce issued by the defendants should be set aside as being too broad, oppressive, lacking legitimate forensic purpose, or insufficiently particularised.']

Ratio Decidendi

The subpoenas were not an abuse of process or a fishing expedition; the defendants established a legitimate forensic purpose by seeking documents necessary for their security for costs application. The notice to produce was too broad and insufficiently particularised, thus was set aside, but the defendants may issue a properly framed notice. Costs of the application to set aside the subpoenas are to be paid by the plaintiff; each party bears its own costs regarding the notice to produce.

Court Disposition

Plaintiff's application to set aside the subpoenas is dismissed; notice to produce is set aside with leave to issue a revised version. Costs orders as specified.

Orders

  • ["Dismiss the plaintiff's application to set aside the subpoenas issued to each of National Australia Bank Ltd and Australian and New Zealand Banking Group Ltd." "Grant access to the parties to the documents produced in answer to those subpoenas limited, in the first instance, to the defendants' legal...