Westpac Banking Corporation v Southern Environmental Services [2017] NSWSC 330

Westpac Banking Corporation v Southern Environmental Services [2017] NSWSC 330

The notice to produce was set aside because there was no legitimate forensic purpose for requiring the production of Klondu's financial records: there was no claim for Klondu’s profits, the information was too remote from Environmental’s pleaded claim for lost hiring profits, and Environmental had already particularised its loss in the cross-claim.

Parties
Plaintiff: Westpac Banking Corporation; First Defendant/cross Claimant: Southern Environmental Services Pty Ltd; Second Defendant: Gyressa Pty Ltd; Third Defendant: Paul Thomas Cambage Wenham; First Cross Defendant: Gloucester 103 Holdings Pty Ltd; Second Cross Defendant: Klondu Group Pty Limited
Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Civil / Interlocutory Application to Set Aside Notice to Produce
Outcome
Notice to produce set aside; costs to second cross-defendant
Legal Topics
Notice to Produce, Forensic Purpose, Costs
Civil Procedure Notice to Produce Forensic Purpose Costs

Case Brief

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Parties

Westpac Banking Corporation

Plaintiff

Southern Environmental Services Pty Ltd

First Defendant/cross Claimant

Gyressa Pty Ltd

Second Defendant

Paul Thomas Cambage Wenham

Third Defendant

Gloucester 103 Holdings Pty Ltd

First Cross Defendant

Klondu Group Pty Limited

Second Cross Defendant

Procedural Posture

Civil / Interlocutory Application to Set Aside Notice to Produce

Legal Issues

  1. 1 Whether the notice to produce issued by the defendants/cross-claimant to the second cross-defendant had a legitimate forensic purpose

Ratio Decidendi

The notice to produce was set aside because there was no legitimate forensic purpose for requiring the production of Klondu's financial records: there was no claim for Klondu’s profits, the information was too remote from Environmental’s pleaded claim for lost hiring profits, and Environmental had already particularised its loss in the cross-claim.

Court Disposition

Notice to produce set aside; costs to second cross-defendant

Orders

  • The notice to produce issued by the defendants/cross-claimant to the second cross-defendant dated 9 December 2016 is set aside.
  • The defendants/cross-claimant must pay the costs of the second cross-defendant of the notice of motion.