Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155

Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155

The documents sought in the notice to produce and subpoena were not materially relevant to the stay application because the estimated legal costs, dwarfed by the judgment debt, would have an immaterial impact on the respondent's recovery. There was no legitimate forensic purpose in seeking such documents. The respondent's conduct in pressing these issues and opposition to the stay warranted indemnity costs for the applicant.

Parties
Appellant/applicant: Paul Gerald Henry Misan; Respondent: Markham Real Estate Partners (KSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
18 August 2022
Procedural Posture
Appeal / Interlocutory Orders Pending Appeal
Outcome
Notice to produce and substantial parts of subpoena set aside; appellant's costs of motions payable by respondent on an indemnity basis.
Legal Topics
Stay of Execution, Notices to Produce, Subpoena, Costs – Indemnity Costs
Civil Procedure Stay of Execution Notices to Produce Subpoena Costs – Indemnity Costs

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Parties

Paul Gerald Henry Misan

Appellant/applicant

Markham Real Estate Partners (KSW) Pty Ltd

Respondent

Procedural Posture

Appeal / Interlocutory Orders Pending Appeal

Legal Issues

  1. 1 Whether documents sought under notice to produce/subpoena were materially relevant to application for stay of execution pending appeal
  2. 2 Basis for indemnity costs

Ratio Decidendi

The documents sought in the notice to produce and subpoena were not materially relevant to the stay application because the estimated legal costs, dwarfed by the judgment debt, would have an immaterial impact on the respondent's recovery. There was no legitimate forensic purpose in seeking such documents. The respondent's conduct in pressing these issues and opposition to the stay warranted indemnity costs for the applicant.

Court Disposition

Notice to produce and substantial parts of subpoena set aside; appellant's costs of motions payable by respondent on an indemnity basis.

Orders

  • Paragraph 15 of the notice to produce dated 8 July 2022 issued to the appellant by the respondent is set aside.
  • Paragraphs 1-6 inclusive, 8, 9 and 11 of the subpoena issued by the respondent to Mr Timothy James O'Connor returnable on 20 July 2022 are set aside.