Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

The rule 21.10 notice was invalid because paragraphs 1 and 2 did not identify a specific document clearly identified, and paragraph 3 was conceded not to be supportable under that rule. For rule 34.1, paragraph 2 was permissible because it identified the document sought with precision and imposed no unacceptable burden of interpretation or assessment, but paragraph 1 was impermissibly broad through the word "concerning" and paragraph 3 impermissibly required the recipient to form a legal conclusion about whether documents established a sole beneficial interest.

Jurisdiction
Australia
Judgment Date
19 August 2009
Procedural Posture
Proceedings Under S 459 G of the Corporations Act 2001 (cth) in Respect of a Statutory Demand / Interlocutory Process Concerning a Notice to Produce
Outcome
Notice under rule 21.10 set aside; limited rule 34.1 notice permitted; costs awarded to the plaintiff.
Legal Topics
['notice to Produce' 'production to a Party Under Rule 21.10' 'production to the Court Under Rule 34.1' 'statutory Demand Proceedings']
['civil Procedure' 'corporations'] ['notice to Produce' 'production to a Party Under Rule 21.10' 'production to the Court Under Rule 34.1' 'statutory Demand Proceedings']

Case Brief

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Procedural Posture

Proceedings Under S 459 G of the Corporations Act 2001 (cth) in Respect of a Statutory Demand / Interlocutory Process Concerning a Notice to Produce

Legal Issues

  1. 1 ["Whether the defendants' notice to produce under rule 21.10 was authorised by that rule." 'Whether a foreshadowed notice to produce under rule 34.1 in the same terms would be authorised by that rule.' 'Whether the descriptions in paragraphs 1, 2 and 3 of the notice sufficiently specified the documents sought.']

Ratio Decidendi

The rule 21.10 notice was invalid because paragraphs 1 and 2 did not identify a specific document clearly identified, and paragraph 3 was conceded not to be supportable under that rule. For rule 34.1, paragraph 2 was permissible because it identified the document sought with precision and imposed no unacceptable burden of interpretation or assessment, but paragraph 1 was impermissibly broad through the word "concerning" and paragraph 3 impermissibly required the recipient to form a legal conclusion about whether documents established a sole beneficial interest.

Court Disposition

Notice under rule 21.10 set aside; limited rule 34.1 notice permitted; costs awarded to the plaintiff.

Orders

  • ['The notice under rule 21.10 dated 10 August 2009 included in annexure A to the affidavit of Angela Mary Frost affirmed on 12 August 2009 is set aside.' 'The defendants may serve on the plaintiff a notice to produce under rule 34.1 in the form of annexure C to the affidavit of Alexander Ronayne sworn 18 August...