Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 3) [2021] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 3) [2021] NSWSC 1238 Hearing dates: 28 September 2021 Decision date: 30 September 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Set aside order (1) made by the Registrar on 26 November 2020 and, in lieu thereof, order that paragraphs 1 and 2 of the subpoena issued to Lawcover Insurance Pty Limited on 2 October 2020 be set aside. (2) Subject to an application for a different order being made in writing to my Associate within seven days hereof, order the plaintiff to pay the defendants' costs of the defendants' notice of motion filed on 22 December 2020. (3) Pursuant to s 1335 of the Corporations Act 2001 (Cth) and rule 41.21 of the Uniform Civil Procedure Rules 2005 (NSW), order the plaintiff to provide additional security in the amount of $100,000 by way of payment into Court or irrevocable bank guarantee issued by an Australian bank and releasable on order of the Court, such security to be provided within 14 days' hereof. (4) Subject to an application for a different order being made in writing to my Associate within seven days hereof, order the plaintiff to pay the defendants' costs of the defendants' notice of motion filed on 31 August 2021. Catchwords: CIVIL PROCEDURE — Subpoenas — Review of Registrar's refusal to set aside — Threshold in civil proceedings is higher than the criminal threshold of "on the cards" that relevant documents might be produced in response — No reasonable basis beyond speculation for supposing that documents produced in response will materially assist — Subpoena set aside COSTS — Security for costs — Application for further security for costs — Consideration of the purpose of an order for security for costs — Further security would not stultify the proceedings — Further security ordered Legislation Cited: Corporations Act 2001 (Cth), ss 601AD, 1335 Supreme Court Act 1970 (NSW), s 121 Uniform Civil Procedure Rules 2005 (NSW), rr 41.21, 49.19 Cases Cited: Alister v The Queen (1984) 154 CLR 404; [1983] HCA 45 Attwells v White (No 3) [2021] NSWSC 144 Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 KP Cable Investments v Meltglow Pty Ltd (1995) 56 FCR 189 One.Tel Ltd (in liq) - Sing Tel Optus Pty Ltd v Weston [2010] NSWSC 1491 Vintage Marine Art Pty Ltd v Henderson and Cremer (No 2) (2019) 101 NSWLR 77; [2019] NSWSC 252 Wollongong Coal Limited v Gujarat NRE properties Pty Ltd [2019] NSWSC 187; (2019) 139 ACSR 107 Category: Procedural rulings Parties: Shoal Bay Beach Constructions No. 1 Pty Ltd (Plaintiff) Mark Hickey and the persons listed in Schedule A to this Statement of Claim t/as at all material times as Sparke Helmore (Defendants) Representation: Counsel: D Weinberger (Plaintiff) J Burnett (Defendants)