Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 681

Reported Decision : 67 NSWLR 1

New South Wales Supreme Court

CITATION : Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 681

HEARING DATE(S) : 03/07/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 07/03/2006

DECISION : Statement of charge and notice of motion dismissed. No order as to costs.

CATCHWORDS : PROCEDURE - Contempt, attachment and sequestration - Company fails to answer a notice to produce - Having determined to abandon opposition to the threshold issue on the third defendant's security for costs application, the director believed the company did not have to produce documents that were thus irrelevant - Director swore there were no tax returns of the company - The company was a trustee and another company conducted the business - The director believed that the other company lodged the relevant tax returns - Consequent upon advice to the contrary by an accountant and advice by counsel documents were produced in answer to the notice - A reasonable doubt raised by authorised director from the bar table - Whether the company was entitled to costs - No principles involved

PARTIES : Pjoya Pty Ltd - Plaintiff Robert Savio and Associates (a solicitor corporation) t/a Savio Solicitors - Third defendant

FILE NUMBER(S) : SC 4523/03

COUNSEL : Mr R Oayda - Plaintiff/Respondent (In person) Mr G Curtain/ Mr D Jenkins - Third defendant/Applicant

SOLICITORS : Esplins Solicitors - Plaintiff/Respondent Mallesons Stephen Jaques - Applicant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 3 JULY 2006

4523/03 PYOJA PTY LTD v 284 BRONTE ROAD DEVELOPMENTS PTY LTD & ORS EX TEMPORE JUDGMENT 1 Pyoja Pty Ltd commenced proceedings against a number of defendants, including Robert Savio & Associates, a solicitor corporation. That corporation, by notice of motion accompanied by a statement of charge, charges Pyoja with contempt of court in failing to produce documents described in a notice to produce filed by it on 13 March 2006 on the prescribed return dates of 27 March 2006, 30 March 2006, 4 April 2006 and 3 May 2006. 2 The charge does not specify any particulars with respect to the earlier history of the matter, the consequence of which is that I do not consider any failures to answer earlier notices to produce of 7 December 2005 and 3 February 2006. 3 The evidence establishes that on the dates specified in the statement of charge, no documents were produced in answer to the notice to produce of 13 March 2006. 4 On 30 May, 2006, there was a folder of documents produced in answer to the notice to produce, including tax returns of Pyoja. 5 All charges of contempt must be established beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525 at 534). The documentary material before the Court establishes the events that I have described. 6 Reliance is placed by Pyoja on an affidavit of Robert Rafec Oayda sworn on 26 June 2006. In paragraph 2, Mr Oayda said that the reason the company did not comply with the notices to produce was because he had decided on behalf of the company not to rely on the argument made by the plaintiff which gave rise to the solicitors issuing the notices and in consequence he thought the company was no longer required to comply because it would be irrelevant. That is a reference to the decision by Mr Oayda, on behalf of Pyoja, not to contest the threshold question in an application for security for costs that is to be heard on Wednesday of this week. 7 Mr Oayda maintained that as a result of abandoning the defence to that threshold question he believed he was no longer required to comply with the notice to produce. 8 In paragraph 6 of the affidavit, Mr Oayda said, with respect to one of the earlier notices to produce, that the documents did not exist and he did not respond. He said that it was only as a consequence of seeing counsel that the folder of documents was produced on 30 May 2006 that included tax returns. 9 Mr Curtin, who with Mr Jenkins appears for the third defendant, points to an earlier affidavit of Mr Oayda of 29 May 2006 in which he refers to a PayPal account, a copy of a statement from which was annexed to the affidavit. 10 In an examination of Mr Oayda conducted on 15 June 2006, Mr Oayda said that annexed to the affidavit was a PayPal balance and he was asked the following questions: "Q. And you know, don't you, you can print out from the Paypal records a history? A. Yes.