Ballard v Brookfield Australia Investments Limited [2012] NSWCA 385

Ballard v Brookfield Australia Investments Limited [2012] NSWCA 385

Even if large debts for legal fees are incurred, without knowledge of the other side of the balance sheet, one cannot know whether this demonstrates impecuniosity. Evidence sought by the subpoena would not, in its terms, show impecuniosity, and the subpoena constitutes a fishing expedition for impermissible purposes.

Parties
Applicant: Sagacious Legal Pty Ltd; First Respondent: Brookfield Australia Investments; Second Respondent: Multiplex Corporate Agency Pty Ltd
Jurisdiction
Australia
Judgment Date
12 November 2012
Procedural Posture
Interlocutory Application / Application to Set Aside Subpoena
Outcome
Subpoena set aside.
Legal Topics
Subpoena, Discovery, Security for Costs, Impecuniosity
Civil Procedure Subpoena Discovery Security for Costs Impecuniosity

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Parties

Sagacious Legal Pty Ltd

Applicant

Brookfield Australia Investments

First Respondent

Multiplex Corporate Agency Pty Ltd

Second Respondent

Procedural Posture

Interlocutory Application / Application to Set Aside Subpoena

Legal Issues

  1. 1 Whether a subpoena seeking documents relating to legal fees should be set aside on the basis it constitutes a fishing expedition and does not establish impecuniosity without further information

Ratio Decidendi

Even if large debts for legal fees are incurred, without knowledge of the other side of the balance sheet, one cannot know whether this demonstrates impecuniosity. Evidence sought by the subpoena would not, in its terms, show impecuniosity, and the subpoena constitutes a fishing expedition for impermissible purposes.

Court Disposition

Subpoena set aside.

Orders

  • Issuer of subpoena to pay applicant's costs of the notice of motion to set aside.