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Supreme Court of New South Wales |
Last Updated: 6 December 2004
NEW SOUTH WALES SUPREME COURT
CITATION: Short v Crawley [2004] NSWSC 1031
CURRENT JURISDICTION: Equity
FILE NUMBER(S):
2824/98
HEARING DATE{S): 1 November 2004
JUDGMENT DATE:
01/11/2004
PARTIES:
Warwick Short (P1 & 1XD)
Nabatu Pty
Limited (P2 & 2XD)
Christopher Crawley (D1 & 3XC)
Marsico Holdings
Pty Limited (D2 & 1 XC)
J & J O'Brien Pty Limited (D3 &
2XC)
Vensel Pty Limited (4D)
Trudale Pty Limited (5D & 4 XC)
Judith
Crawley (6D)
Aldonet Pty Limited (7D)
Springsley Holdings Pty Limited
(8D)
Gladewood Enterprises Pty Limited (9D)
Athann Pty Limited (10D)
JUDGMENT OF: Hamilton J
LOWER COURT JURISDICTION: Not
Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT
JUDICIAL OFFICER: Not Applicable
COUNSEL:
I M Jackman SC and T M
Thawley (Ps & XDs)
A J L Bannon SC and D B Studdy (1-6Ds & XCs)
J
M Miller (1D)
P M Wood & G K Rich (7-9Ds)
No appearance
(10D)
SOLICITORS:
Kemp Strang (Ps & XDs)
Blake Dawson Waldron
(1-6Ds & XCs)
James Tuite & Associates (7-9Ds)
A Davis, Director
(10D)
CATCHWORDS:
PROCEDURE [111] - Supreme Court procedure -
Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents
- Application
for access - Whether documents relate to matter in issue in
proceedings.
ACTS CITED:
DECISION:
Plaintiffs allowed
access to subpoenaed documents.
JUDGMENT:
IN THE SUPREME
COURT
OF NEW SOUTH WALES
EQUITY
DIVISION
HAMILTON J
MONDAY, 1 NOVEMBER
2004
2824/98 ROSLYN SHORT as Executrix of the Estate of the
Late WARWICK GORDON SHORT & ANOR v CHRISTOPHER CRAWLEY & 9
ORS
JUDGMENT (On plaintiffs’ application for access to
documents produced on subpoena by the ANZ Bank)
1 HIS HONOUR:
This is an application by the plaintiffs for access to documents produced on
subpoena by the ANZ Banking Group Limited. The objection
is on the ground that
if one looks at the face of the subpoena, it cannot be seen that the documents
relate to any matter in issue
in the proceedings, or have any sufficient
relationship to any such matter, for their production and inspection to be
appropriate,
so that the requirement for production and now inspection, is to
be taken to be an abuse of process.
2 Objection was not taken to the
production of the documents on that ground, but objection is taken to access and
inspection on that
ground. Whilst this is rather a strange course to follow, I
do not think that the fact that objection was not taken to the production
necessarily prevents the objection being taken to access and
inspection.
3 Mr Jackman, of Senior Counsel for the plaintiffs, says that
the documents have a relationship to, or bear on, two matters that are
relevant
in the proceedings. The first is in relation to the receivership application
propounded by his clients. He has brought
forward written submissions which
specifically rely upon what is called the “cross guarantees” issue
in relation to that
application. That is an allegation that borrowings of Mr
Crawley which were personal or unrelated to the affairs of the companies
the
subject of these proceedings were supported by guarantees of the companies.
This complaint is not at this stage the subject
of allegations in the amended
statement of claim.
4 Mr Jackman says that allegations may be relied on
to support an application for a receiver by demonstrating that the affairs of
a
company are being so conducted as to call for a receiver, even if they are not
the subject of pleaded allegations in the proceedings.
Mr Bannon, of Senior
Counsel for the first to sixth defendants, supported by Mr P M Wood, of counsel
for the seventh to ninth defendants,
controverts that proposition and says that
the allegations cannot be relied on on the receivership application if not
alleged as
breaches of duty or otherwise in the pleadings.
5 I should
add that Mr Jackman has also pointed out by reference to documents produced on
an earlier subpoena to the ANZ Banking Group
that subpoenas with requisitions
cast in the terms of the present subpoena are also likely to produce documents
relevant to an issue
that is undoubtedly raised on the pleadings, namely, an
issue that has been called in this case the third party payments
issue
6 I reject the proposition Mr Bannon has put, namely, that matters
cannot be relied on in support of a receivership application that
do not fall
within breaches of duty pleaded in the substantive proceedings. It is plain how
the plaintiffs seek to rely upon the
cross guarantees in support (whether
successfully or not) of the receivership application. The material Mr Jackman
has brought forward
also indicates that material of the kind sought by the
subpoena may well contain material relevant to the third party payment
allegations
that are in the pleadings.
7 An examination of the terms of
the subpoena under consideration and also of the evidentiary material brought
forward by Mr Jackman
leads me to the conclusion that there is sufficient
forensic justification shown for the production and for the inspection of the
documents sought by the subpoena and I propose to allow the plaintiffs access to
those documents.
**********
LAST UPDATED: 30/11/2004
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