Khatz Capital v Wilding [2003] NSWSC 173

New South Wales Supreme Court

CITATION : Khatz Capital v Wilding [2003] NSWSC 173 HEARING DATE(S) : 21/02/03, 27/02/03 JUDGMENT DATE : 27 February 2003

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Barrett J DECISION : Leave to serve subpoena granted

CATCHWORDS : PROCEDURE - leave to serve subpoena in New Zealand - statutory direction that leave not to be granted if person to be served is under 18 - service on partners of professional firm - whether judge required to inquire into their ages LEGISLATION CITED : Evidence and Procedure (New Zealand) Act 1994 (Cth) Minors Contracts Act 1969 (NZ) Khatz Capital Limited - Plaintiff Geoffrey Wilding - First Defendant PARTIES : Rodney Martin - Second Defendant Gregor Duncan - Third Defendant UBS Warburg Australia Limited - Fourth Defendant FILE NUMBER(S) : SC 50153/01 COUNSEL : Mr D Maxwell/Ms N Tyson, Solicitors - Plaintiff Mr S J Thompson, Solicitor - First to Third Defendants SOLICITORS : Holman Webb - Plaintiff Middletons - First to Third Defendants

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST BARRETT J

THURSDAY 27 FEBRUARY 2003

050153/01 - KHATZ CAPITAL LIMITED v GEOFFREY WILDING & ORS

JUDGMENT 1 The first to third defendants apply under the provisions of the Evidence and Procedure (New Zealand) Act 1994 (Cth) for leave to serve in New Zealand a subpoena in these proceedings. The subpoena is directed to the firm of PricewaterhouseCoopers or, more precisely, to the individuals who are the partners of that firm in New Zealand. 2 Under section 9(1) of the Act, a subpoena in proceedings in a "superior court" (which this court is, by virtue of the definition in s.3(1)) must not be served in New Zealand without the leave of a judge of that court. Section 9(3) deals in a non-exclusive way with the matters that the judge to whom an application for leave to serve is to take into account. 3 The first such matter (s.9(3)(a)) is the significance of the evidence to be given or the document or thing to be produced by the person named. In this case, the subpoena is a subpoena duces tecum and I am satisfied that the documents required to be produced are of significance to the commercial dispute that lies at the centre of the proceedings. The second matter (s.9(3)(b)) is whether the evidence, document or thing could be obtained by other means without significantly greater expenses and with less inconvenience to the person named. As to that, the documents in question are documents related to a transaction in which PricewaterhouseCoopers New Zealand played an advisory or other professional role for or in relation to one of the parties and there is no other apparent source from which the documents may be obtained. 4 The matters identified in s.9(3) of the Act as matters that the judge must take into account in deciding whether to grant leave to serve a subpoena in New Zealand thus indicate, in this case, that leave should be granted. 5 Under section 9(5) of the Act, the judge must not give leave if the person named in the subpoena is less than 18 years old. The subpoena in the form in which it is now produced is directed to the several individuals named in its schedule, being the partners of PricewaterhouseCoopers New Zealand. An affidavit of Ms Lee, a solicitor in the employ of the solicitors for the first and third defendants, sworn on 26 February 2003 deposes to a conversation on or about 21 February 2003 with Mr Michael Hill of PricewaterhouseCoopers New Zealand in which Mr Hill confirmed to Ms Lee that PricewaterhouseCoopers New Zealand is a partnership and that all the partners are over the age of 18 years. 6 It is extremely unlikely that any partner of a firm such as PricewaterhouseCoopers, whether in New Zealand or elsewhere, would be under the age of 18 years. In the New Zealand context, the Minors Contracts Act 1969 (NZ) which gives effect to contracts of minors only if they attain the age of 18 years or special conditions are fulfilled underwrites this conclusion. 7 Although the question of the age of each person to be served has, in this case, become the subject of evidence (clearly hearsay but, on this interlocutory hearing, not inadmissible on that account: Evidence Act, s.75), I do not consider that s.9(5) implies any requirement that a judge to whom an application for leave under s.9 is made should actively inquire into the age of the person to be served. Section 9(5) operates in a particular circumstance delineated by the words "if the person named is less than 18 years old". Where that circumstance exists, the judge is commanded not to grant leave. But the negative command seems to me to operate only where the circumstance is shown by evidence to exist; and, as a corollary, that it does not operate if either there is no evidence as to the person's age or such evidence as there is does not show the person to be under 18. 8 The evidence that has been led on this application does not show any partner of PricewaterhouseCoopers, New Zealand, named in the subpoena to be of an age less than 18 years, with the result that the negative command in s.9(5) does not operate. 9 I make the order in the short minutes of order which I now initial and date. I direct that the order made be taken out forthwith. **********