The Oak Hotel Cessnock Pty Ltd (in liq) v Deputy Commissioner of Taxation [2020] NSWSC 1589

Supreme Court New South Wales

Medium Neutral Citation: The Oak Hotel Cessnock Pty Ltd (in liq) v Deputy Commissioner of Taxation [2020] NSWSC 1589 Hearing dates: 6 November 2020 Decision date: 11 November 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Note the undertaking given to the Court on 6 November 2020 by Dr John Harvey that on or before 20 November 2020 he will file an amended statement of claim which names him as the third plaintiff, together with an affidavit authorising him to be a plaintiff in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 7.2. (2) Order the first plaintiff's liquidator, Aaron Lucan, to pay the defendants' costs on an indemnity basis of the defendants' application to strike out the proceedings brought against them by the first plaintiff in so far as they comprise the claim based on alleged unauthorised disclosure in paragraphs 4-21 of the statement of claim (the strike out costs). (3) Direct the plaintiffs to provide, on or before 25 November 2020, the particulars of paragraph 17 of the statement of claim which were sought in the defendants' letter to Dr Harvey dated 8 April 2020, namely: 1. specify the taxation information and financial information alleged to have been disclosed; 2. specify each occasion when confidential information is alleged to have been disclosed; and 3. state in relation to each occasion: (a) whether the information was disclosed orally or in writing; (b) if the information was disclosed in writing, please identify each relevant document containing the writing and supply a copy; and (c) if the information was disclosed orally, state the substance of what was said. (4) Order the plaintiffs to pay the defendants' costs of their amended notice of motion filed on 23 July 2020, apart from the costs referred to in (2) above. 5) Dismiss the plaintiffs' notice of motion filed on 14 September 2020 and order the plaintiffs to pay the defendants' costs thereof. Catchwords: COSTS — Party/Party — Orders against non-parties — Personal costs orders sought against liquidator of first plaintiff — Where liquidator failed to communicate with defendants' solicitors for seven months — Where defendants incurred costs of motion to dismiss proceedings in part for want of due despatch — Bases of quantification — Indemnity basis CIVIL PROCEDURE — Pleadings — Particulars — Where defendant seeks particulars of part of first plaintiff's claim — Seriousness of allegations — Requirement to provide all necessary particulars CIVIL PROCEDURE — Discovery — Where plaintiffs seek general discovery — Notices to produce not issued for documents plaintiffs seek — Claim not adequately particularised — Evidence not yet served Legislation Cited: Bankruptcy Act 1966 (Cth), s 60 Civil Procedure Act 2005 (NSW), ss 56, 58, 98 Corporations Act 2001 (Cth), ss 440D, 471, 471B, 477, 500 Freedom of Information Act 1982 (Cth), ss 22, 23, 47E, 47F Income Tax Assessment Act 1997 (Cth) Taxation Administration Act 1953 (Cth), s 15, Sch 1, s 355-25 Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2, 13.6, 15.1, 15.3 Cases Cited: Commonwealth Bank of Australia v Goater [2016] NSWSC 710 Mead v Watson [2005] NSWCA 133 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Tugrul v Tarrants Financial Consultants Pty Limited (No 5) [2014] NSWSC 437 Category: Procedural and other rulings Parties: The Oak Hotel Cessnock Pty Ltd (in liq) (ACN 150 948 619) (First plaintiff) Hunter Valley Dental Surgery Pty Ltd (ACN 089 023 696) (Second plaintiff) Deputy Commissioner of Taxation (First defendant) Commonwealth of Australia (Second defendant) Aaron Lucan (Person affected by defendants' motion) Representation: Counsel: E Ball (First and second defendants) J Johnson (Aaron Lucan)