Supreme Court New South Wales Medium Neutral Citation: Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd [2020] NSWSC 670 Hearing dates: On the papers Date of orders: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Equity - Expedition List Before: Williams J Decision: Order that the notices to produce issued by the defendants on 11, 14 and 15 May 2020 be set aside. Catchwords: PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to set aside certain notices to produce issued by defendants – where notices to produce do not seek specified documents or things but instead seek extremely broad categories of documents – where notices to produce seek production to both defendants and to the Court – notices to produce set aside Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 34.1, 34.2 Cases Cited: Azzi v Volvo [2006] NSWSC 283 Category: Procedural and other rulings Parties: Overdean Developments Pty Ltd as trustee of the Dean Superfund (First Plaintiff/First Cross-Defendant) Brian Dean (Second Plaintiff/Second Cross-Defendant) B.A.D Nominees (NSW) Pty Ltd (Third Plaintiff/Third Cross-Defendant) Garslev Holdings Pty Ltd (First Defendant/First Cross-Claimant) Leonardus Gerardus Smits (Third Defendant/Third Cross-Claimant) Peter Shah Mahommed (Fourth Defendant/Fourth Cross-Claimant) Vestecorp Financial Services Pty Ltd (Fifth Defendant/Fifth Cross-Claimant) Jacobus Smits (Sixth Defendant/Sixth Cross-Claimant) Representation: Counsel: D Allen (Plaintiffs/Cross-Defendants) L Smits, solicitor (Defendants/Cross-Claimants) Solicitors: Kekatos Lawyers (Plaintiffs/Cross-Defendants) Leonardus Smits (Defendants/Cross-Claimants) File Number(s): 2018/384191 Publication restriction: N/A Judgment 1. This proceeding was commenced in December 2018 and listed for an expedited final hearing in May 2019. 2. The final hearing has been vacated on two occasions in circumstances that it is not necessary to detail in these reasons. The matter is now listed for final hearing before me, commencing on 22 June 2020. 3. On 8 May 2020, the defendants' solicitor (who is also the third defendant and third cross-claimant in this proceeding) wrote to the Court referring to the fact that the matter had been listed for hearing commencing on 22 June 2020, and stating that the defendants intended to move on a Further Amended Notice of Motion filed in Court on 30 August 2019. In a subsequent email to the Court dated 18 May 2020, the defendants' solicitor stated that the vacation of the hearing listed for 22 June 2020 in order to enable "final disposal of the interlocutory applications" in the Further Amended Notice of Motion "seems inevitable". 4. At a directions hearing on 22 May 2020, I informed the parties that the final hearing listed to commence on 22 June 2020 would not be vacated. I made directions to facilitate the determination on the papers of the Further Amended Notice of Motion, and the determination on the papers of an application by the plaintiffs to set aside three notices to produce issued by the defendants, prior to the commencement of the final hearing on 22 June 2020. 5. Following those directions (albeit not strictly in accordance with the directions): 1. the plaintiffs sent to my Associate a notice of motion dated 25 May 2020 seeking an order setting aside the notices to produce issued by the defendants dated 11 May 2020, 14 May 2020 and 15 May 2020, together with an affidavit of Ben Thomas (the plaintiffs' solicitor) sworn on 25 May 2020 and written submissions; 2. the defendants have filed written submissions opposing that motion. 1. Each of the three notices to produce is styled as a "Notice to Produce to Court" and states that it has been issued pursuant to r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). 2. UCPR r 34.1 provides: (1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner-- (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing. (2) The other party must comply with a notice to produce-- (a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or (b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production. 1. UCPR r 34.2 provides: (1) Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession. (3) Except by leave of the court, a party may not search for, or inspect, any document or thing that has been produced by another party under this rule but not admitted into evidence. 1. Copies of the three notices to produce issued by the defendants are Annexure "A" to these reasons. 2. The plaintiffs seek to set aside the notices to produce on the following bases: 1. the notices do not seek discovery of specified documents or things but instead seek very broad categories of documents in an exercise that is akin to discovery; 2. the notices to produce are oppressive, having regard to the very broad categories of documents sought and having regard to the fact they have been issued at a very late stage prior to the commencement of the final hearing; 3. further, the notices to produce lack a legitimate forensic purpose; 4. the notices to produce purport to require production of documents to the defendants and to the Court; and 5. the notice to produce dated 11 May 2020 did not require production at a hearing or time fixed for return of subpoenas and the Court had not granted leave to issue notices to produce returnable at any other time. 1. The defendants submit that the notices to produce have been issued "in support of, inter alia" the defendants' applications in the Further Amended Notice of Motion for security for costs and security for the plaintiffs' undertaking as to damages given in support of an interim injunction granted in favour of the plaintiffs at an earlier stage in the proceeding. 2. Most of the seven pages of the defendants' submissions are devoted to allegations that the second plaintiff, Mr Dean, has failed to disclose his true financial position in evidence given in another proceeding in this Court. I infer from this that the defendants submit that the notices seek production of documents that relate to the second plaintiff's financial position and would therefore have some relevance to the defendants' applications for security for costs and security for the undertaking as to damages. 3. The defendants' submissions also complain that the second defendant has failed to provide any information in response to the notices to produce or to provide any evidence about what documents within the scope of the notices to produce are within his possession, power or control. That is not surprising, given that the plaintiffs are applying to set aside the notices to produce. 4. The defendants' submissions do not engage with the plaintiffs' complaint that the notices do not seek the production of specified documents or things. 5. Nor do the defendants' submissions explain why the defendants presumed to impose a requirement that the documents be produced not only to the Court, but also directly to the defendants. 6. I have concluded that the notices to produce must be set aside for the following reasons. 7. First, the notices are not limited to specified documents or things. Rather, each of the notices to produce seeks an extremely broad category of documents. A document or thing is not "specified" if it is merely capable of being identified by a search of records against descriptive criteria. Moreover, it is plain from the manner in which those categories are drafted (seeking "any" documents of certain kinds "with respect to" the subject matter stated in the notice) that the defendants are fishing as to whether the documents falling within the categories even exist. This is not permitted by UCPR r 34.1: see, for example, Azzi v Volvo [2006] NSWSC 283. 8. Second, the defendants have invoked the power to issue notices to produce under UCPR r 34.1, yet have taken it upon themselves to require production directly to the defendants as well as to the Court, thereby circumventing the operation of UCPR r 34.2(3). This is an abuse of the process of the Court, in my opinion. 9. Having regard to those conclusions, it has not been necessary to consider the other grounds of objection raised by the plaintiffs. 10. Accordingly, I make the following orders: 1. Upon the plaintiffs' solicitor giving an undertaking to pay any applicable filing fees, grant leave to the plaintiffs to file in Court the notice of motion dated 25 May 2020 and the affidavit of Ben Thomas sworn on 25 May 2020. 2. Direct that the notice of motion dated 25 May 2020 be made returnable instanter and be determined on the papers. 3. Set aside the notices to produce issued by the defendants on 11 May 2020, 14 May 2020 and 15 May 2020. 4. Order that the defendants pay the plaintiffs' costs of and incidental to the notice of motion dated 25 May 2020. ********** ​​​​​​​​​​​​​​​​​​​​​Annexure "A" Amendments 29 May 2020 - Inserted Annexure "A" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2020