Mathai v Kwee (No. 1) [2005] FCA 721

FEDERAL COURT OF AUSTRALIA

Mathai v Kwee (No. 1) [2005] FCA 721 MATHAI V KWEE (No. 1) NSD 596 OF 2005 GRAHAM J 6 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 596 OF 2005

BETWEEN: MATHEW KERALAVAKAYIL MATHAI

APPLICANT

AND: LOW MOOI KWEE

FIRST RESPONDENT

LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 25 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The requirement for the production of documents in the subpoena directed to Margaret Lee Mathai be struck out together with the whole of the schedule to the subpoena. 2. In respect of the subpoena directed to Michael Lee Mathai the whole of paragraph 3 of the schedule to the subpoena appearing on page 4 be struck out and the words 'evidencing or otherwise' in each of the paragraphs 1 and 2 of the schedule. 3. The First Respondent pay the costs of Margaret Lee Mathai and Michael Lee Mathai of the notice of motion filed 24 May 2005 to strike out the subpoenae. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 596 OF 2005

BETWEEN: MATHEW KERALAVAKAYIL MATHAI

APPLICANT

AND: LOW MOOI KWEE

FIRST RESPONDENT

LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE: 25 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE 1 An application to annul a sequestration order made in respect of Mr Mathew Mathai is to come before the court for hearing tomorrow. In relation to that application the First Respondent, Low Mooi Kwee, who was the Applicant in respect of the creditors petition resulting in the sequestration order, has issued two subpoenas to the wife and son of the applicant, Mr Mathew Mathai. The subpoenas require the attendance of the wife and son, and also the production of documents. 2 In relation to the subpoenas directed to Margaret Lee Mathai, the schedule listing the documents to be produced reads: '1. All documents evidencing or otherwise referring to income received during the period 1 January 1978 to the present including but not limited to taxation returns. 2. All documents evidencing or otherwise referring to money received directly or indirectly from MATTHEW KERALAVAKAYIL MATHAI during the period 1 January 1978 to the present including bank statements and receipts.' 3 Exception has been taken to the schedule to the subpoena by Mr Johnson, counsel for the subpoenaed parties. In my opinion, the schedule does as Mr Johnson contends; namely, seek discovery against a third party, and in accordance with the principles enunciated by Moffitt P in Waind v Hill & National Employers' Mutual General Association Ltd (1978) 1 NSWLR 376, I propose to strike out that part of the subpoena requiring the production of documents. 4 In relation to the subpoena directed to Michael Lee Mathai it requires the production of: '1. All documents evidencing or otherwise referring to acquisition by or on behalf of any person of the property located at 69 Wellington Street, Kew, Victoria 3101, Australia ("69 Wellington Street Property"). 2. All documents evidencing or otherwise referring to conveyance of the 69 Wellington Street Property. 3. All documents evidencing or otherwise referring to funds, securities, and other property of any kind whatsoever relevant whether directly or indirectly to any transaction by or on behalf of any person in respect of acquisition of the 69 Wellington Street Property.' 5 Again, in respect of paragraph 3 it seems to me that the subpoena is oppressive and paragraph 3 should be struck out. In relation to paragraphs 1 and 2, the use of the words 'evidencing or otherwise' clearly requires third parties to give discovery of documents, and in my opinion is again oppressive and inappropriate for service on a third party. 6 In relation to the subpoenas generally and the attendance of the subpoenaed parties, exception has been taken to the failure to provide proper conduct money to enable the parties to come to the court. When the subpoenas were served they were served under cover of letters that said: 'We also enclose a cheque to the sum of $50 by way of conduct money. We shall contact you shortly regarding your accommodation and travelling arrangements in connection with your attendance at trial.' 7 The exhibit SA1 before me on this application is a further letter of 24 May 2005 from the solicitors acting for the subpoenaed parties confirming arrangements in respect of air fares and accommodation for the subpoenaed parties. It refers to the fact that $50 conduct money has already been provided to each of the parties. Mr Johnson indicates that $50 may not even enable the parties to get to Tullamarine airport to catch a flight which is due to leave at 7 am. There is also the problem of then getting into the city from Sydney airport after the plane arrives in Sydney. 8 It seems to me that the conduct money tendered is inadequate. However, an undertaking has been given to the court by the First Respondent, Low Mooi Kwee, through her counsel to ensure that in respect of each subpoenaed party a further amount of $100 conduct money be made available to each of the subpoenaed parties no later than 4 pm today by delivery of a cheque from the instructing solicitors for that amount to the solicitors presently acting for the subpoenaed parties, namely PH Legal. 9 On the basis of that undertaking I am minded to allow the subpoenas to stand insofar as they require the personal attendance of the parties named. In the circumstances, I propose to simply order that in respect of the subpoena directed to Mrs Margaret Lee Mathai, that the requirement that she produce documents is struck out and that the entirety of paragraph 1 and 2 of the schedule to her subpoena be struck out. 10 In relation to the subpoena directed to Mr Michael Lee Mathai, I order that paragraph 3 of the schedule to the subpoena be struck out and I order that the words 'evidencing or otherwise' appearing in paragraphs 1 and 2 of the schedule of the subpoena be struck out. 11 In the case of the subpoena directed to Mr Michael Lee Mathai, I order that the date for production of the documents be amended to 10.15 am on 26 May 2005 before me. 12 In relation to the motion filed 24 May 2005 and dated 23 May 2005 to set aside the subpoenas, I order that the First Respondent, Low Mooi Kwee, who caused the subpoenas to be issued, pay the costs of the Applicants on the motion, namely Mrs Margaret Lee Mathai and Mr Michael Lee Mathai. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .