Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169

Supreme Court New South Wales

Medium Neutral Citation: Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169 Hearing dates: 28 August 2020 Date of orders: 31 August 2020 Decision date: 31 August 2020 Jurisdiction: Equity - Applications List Before: Williams J Decision: The notice of motion filed by the fourth defendant and the first respondent is dismissed. Catchwords: PRACTICE AND PROCEDURE – search orders – application by fourth defendant and first respondent to discharge search orders made in respect of their premises – where search orders obtained by plaintiffs on an ex parte basis – where evidence relied upon by plaintiffs to obtain search orders included an affidavit in support sworn by second defendant – where second defendant subsequently swore a further affidavit in which he stated that he did not give first affidavit voluntarily – whether the plaintiffs improperly obtained and relied upon the second defendant's first affidavit – second defendant's first affidavit not improperly obtained – search order regime not discharged PRACTICE AND PROCEDURE – Harman obligation – where plaintiffs relied on affidavits served by defendants pursuant to an earlier undertaking given to the court in the same proceeding in an ex parte search order application – where the defendants' affidavits were not read in evidence prior to the plaintiffs making the ex parte search order application – whether the plaintiffs breached the Harman obligation – no breach in circumstances where affidavits relied upon by plaintiffs in the same proceeding Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Part 25 Cases Cited: Computershare Ltd v Perpetual Registrars Ltd (2000) 1 VR 626; [2000] VSC 139 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Hooper v Kirella Pty Ltd (1999) 96 FCR 1 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 Category: Procedural and other rulings Parties: Nexgen Sydney Pty Ltd (First Plaintiff) Business Telecom Pty Ltd (Second Plaintiff) Samantha Barakat (First Defendant) Shane Mitchell (Second Defendant) Mina Youssef (Third Defendant) Easytel Australia Pty Ltd (Fourth Defendant) Easytel Group Pty Ltd (First Respondent) John Hanna (Second Respondent) Amanda Youssef (Third Respondent) Dali Marsic (Fourth Respondent) Representation: Counsel: Mr C H Cassimatis (Plaintiffs) Mr A J Hourigan (Defendants/Respondents)