789TEN v Westpac & Anor [2005] NSWSC 404

New South Wales Supreme Court

CITATION : 789TEN v Westpac & Anor [2005] NSWSC 404

HEARING DATE(S) : 22 April 2005

JUDGMENT DATE : 22 April 2005

JUDGMENT OF : McDougall J at 1

DECISION : See para [33] of judgment

CATCHWORDS : PRACTICE AND PROCEDURE - where solicitor for the respondent agreed that his firm would accept service on behalf of a non-party of plaintiff's subpoena - where subpoena and conduct money given to another partner in firm - where solicitor maintained that subpoena not properly served - where notice of motion brought seeking production of documents - where agreement reached for production of documents - whether solicitor for respondent ought pay applicant's costs - whether costs incurred improperly, without reasonable cause or wasted by undue delay or misconduct - no question of principle

LEGISLATION CITED : Supreme Court Act 1970

789TEN Pty Limited (Plaintiff) PARTIES : Westpac Banking Corporation Limited (Defendant 1) Colin Alexander (Defendant 2)

FILE NUMBER(S) : SC 50167/03

M D Broun QC (for A G R Harper, Solicitor) COUNSEL : P J Dowdy (for Westpac)

Laurence & Laurence (for 789TEN) SOLICITORS : Henry Davis York (for Westpac)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

22 April 2005 Ex tempore (revised 26 April 2005)

50167/03 789TEN Pty Limited v WESTPAC BANKING CORPORATION Limited & Anor JUDGMENT 1 HIS HONOUR: The nature of the substantive proceedings is set out with sufficient detail for present purposes in my judgment given on another interlocutory application on 28 July 2004: 789TEN v Westpac Banking Corporation Ltd & Anor [2004] NSWSC 596. As is apparent from that judgment, the litigation is being keenly, perhaps bitterly, fought. 2 The application that comes before the Court today relates to a subpoena addressed to a non party, Peter Gilmore Pty Limited (Peter Gilmore). That was issued on 24 January 2005. The last day for service was fixed as 2 March 2005. The uncontested evidence for the first defendant (Westpac) is that, because there were difficulties in serving Peter Gilmore at its registered office, the principal of that company (Mr Gilmore) advised process servers that Laurence & Laurence (the plaintiff's solicitors) were authorised to accept service. 3 The unchallenged evidence further shows that that indication of authority was confirmed between a solicitor from Henry Davis York (Westpac's solicitors) and Mr Harper, a partner in Laurence & Laurence (the plaintiff's solicitor). Mr Harper said: "We can accept service." The process server then attended Laurence & Laurence's office on 2 March 2003. On that day, it appears, Mr Harper personally was unavailable. However, the process server spoke to another partner in the firm, Mr Rick Laws. Mr Laws said, according to the process server, that Mr Harper was in a meeting with Mr Gilmore and that he (Mr Laws) would take the subpoena "but I can't sign anything at this stage". He was then given the subpoena and the relevant conduct money. The following day - one day after the last day limited for service - a further copy of the subpoena was given personally to Mr Harper. 4 I emphasise that none of this evidence was challenged and none of it has been answered. 5 Peter Gilmore did not produce documents in answer to the subpoena on its return date, namely 10 March 2005. Accordingly, Henry Davis York wrote to Laurence & Laurence. They said that the subpoena had been stood over until 24 March 2005 but that, because there was another subpoena returnable on 17 March 2005, the subpoena addressed to Peter Gilmore would be called on that day. The letter requested confirmation that documents would be produced to the Registry. There was no response to that letter until 23 March 2005. 6 Nothing was produced to the Registry and there was no appearance by Peter Gilmore on 17 March 2005. Accordingly, on 18 March 2005, Henry Davis York wrote again to Laurence & Laurence. The letter required information about what documents would be produced, and the reason why Peter Gilmore had not complied. 7 That letter led to the response of 23 March 2005 to which I have adverted. The response, omitting formal parts, said: "We refer to the subpoena issued to Peter Gilmore Pty Limited returnable 10 March 2005. We advise that this subpoena was served out of time."