Big Un Limited (in liquidation) v Evertz (No 2) [2024] NSWSC 878

Supreme Court New South Wales

Medium Neutral Citation: Big Un Limited (in liquidation) v Evertz (No 2) [2024] NSWSC 878 Hearing dates: 12 July 2024 Date of orders: 19 July 2024 Decision date: 19 July 2024 Jurisdiction: Equity - Commercial List Before: McGrath J Decision: Applicant relieved of procedural requirements to file and serve response or other defence, plead matters specifically, provide particulars, serve certain evidence, provide certain disclosure, and ancillary orders: see [69] Catchwords: CIVIL PROCEDURE — Procedural requirements under Practice Note SC Eq 3 and UCPR — where applicant seeks dispensation in limine from requirements to file and serve response or other defence, plead matters specifically, provide particulars, serve certain evidence and provide certain disclosure in the substantive proceedings — where substantive proceedings involve damages claims by plaintiff company against applicant and other company officers for breaches of Corporations Act 2001 (Cth) — where applicant is the subject of parallel criminal proceedings involving significant factual and temporal overlap with present proceedings — privilege against self-incrimination — general rule that a party to non-penalty civil proceedings will not be excused from discovery or interrogatories — rare exception where exemption from disclosure is only means of maintaining the privilege and there is a real and appreciable risk of prosecution — exact overlap of events and allegations not required — HELD — applicant incapable of responding to allegations in civil proceedings without exposing himself to liability in criminal proceedings — dispensation and cognate orders granted Legislation Cited: Corporations Act 2001 (Cth) ss 9, 180, 1042A(1), 1043A(1), 1311(1), 1317H Practice Note SC Eq 3 Uniform Civil Procedure Rules 2005 (NSW) rr 14.3, 14.14, 15.1, 21.10, 34.1 Cases Cited: Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32; [2007] FCA 1620 EL Bell Packaging Pty Ltd v Allied Seafoods Ltd (1990) 4 ACSR 85 MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612 Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v DCT; Ex Parte Briggs (1987) 71 ALR 86 Re Kala Capital Pty Ltd (No 2) [2012] NSWSC 1293 Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204 Reid v Howard (1995) 184 CLR 1 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (No 3) (2018) 128 ACSR 625; [2018] FCA 1107 Sorby v Commonwealth (1983) 152 CLR 281 Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207; [1999] NSWSC 161 Category: Procedural rulings Parties: Big Un Limited (Plaintiff/Respondent) Brandon Charles Evertz (First Defendant/ Respondent) Sonia Thurston (Third Defendant/Respondent) Andrew Scott Corner (Fourth Defendant/Applicant) Representation: Counsel: No appearance (Plaintiff/Respondent) H Rogers (First Defendant/Respondent) E Holmes and S Murray (Third Defendant/Respondent) P Afshar and J Pokoney (Fourth Defendant/Applicant)