Direct Flow Pty Ltd t/a Arthur Rubber v Andrew Peterson t/a Maxx Rubber [2023] NSWSC 318

Supreme Court New South Wales

Medium Neutral Citation: Direct Flow Pty Ltd t/a Arthur Rubber v Andrew Peterson t/a Maxx Rubber [2023] NSWSC 318 Hearing dates: 9 March 2023 Date of orders: 3 April 2023 Decision date: 03 April 2023 Jurisdiction: Equity Before: Robb J Decision: See orders at [89] Catchwords: CIVIL PROCEDURE — interim preservation — search orders — grounds on which ordered — where parties are both in the business of supplying rubber products in Wagga Wagga — where defendant is former employee of plaintiff, but resigned in 2017 — where search order granted and executed in 2022 — where applicant made materially defective disclosure by failing to disclose correspondence between parties' solicitors — where there is a high probability that disclosure would have caused the Court to dismiss the application — where Court ordered that plaintiff not to have access to any of the material produced pursuant to the search unless and until further order of the Court, but that the material is to be preserved COSTS — security for costs — relevant factors — impecuniosity — where it is a matter of rational possibility that plaintiff company would not be able to pay defendant's costs — where plaintiff ordered to give security for defendant's costs, but in an amount significantly less than that proposed by defendant Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Copyright Act 1968 (Cth) Corporations Act 2001 (Cth), ss 182, 183, 1335 Crimes Act 1900 (NSW), s 94 Trade Marks Act 1995 (Cth) Uniform Civil Procedure Rules 2005 (NSW), Pt 25, Div 3, r 42.21 Cases Cited: 15 Management Pty Ltd v Newstar Sports Management Pty Ltd [2009] NSWSC 1208 Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3 Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 Beach Petroleum NL v Johnson (1992) 7 ACSR 203 Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 Dormeuil Freres S.A. and another v Nicolian International (Textiles) Ltd [1988] 1 WLR 1362 HP Mercantile this Pty Ltd v Dierickx [2013] NSWCA 87 Hurworth Nominees Pty Ltd v ANZ Banking Group Ltd [2005] NSWSC 1360 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72 Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 Treloar Constructions Pty Ltd v McMillan [2016] NSWCA 302 Tyche Asset Management Pty Ltd v Flyland Development Group Pty Ltd [2021] NSWSC 1283 Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 2005 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2019] NSWSC 1546 Texts Cited: Practice Note SC Eq 11 Practice Note SC Gen 13 JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) Category: Procedural rulings Parties: Direct Flow Pty Ltd (Plaintiff) Andrew Christian Peterson (Defendant) Representation: Counsel: J D Catlin (Plaintiff) S Fendekian (Defendant)