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. Q. A withdrawal print out? A. Yes. Q. An add funds print out? A. Yes. Q. A request money print out? A. Yes. Q. And a send money print out? A. Yes. Q. And has the plaintiff printed out any of those available print outs up to the date of the notice to produce? A. I've never used any of them. KING: No that wasn't the question. The question was – I'm sorry Registrar. REGISTRAR: Well at this time I don't mind who clarifies the question. CURTIN: Q. The question was has the plaintiff printed it out? A. No I have not printed it out, no I haven't printed them out." 11 It was submitted that that evidence was patently false as a result of the paragraph in the affidavit and the annexed statement of account from the PayPal records. That may be so, but that is not a matter particularised in the statement of charge and, the statement of charge lacking that matter as an item upon which reliance was to be placed, I place no emphasis upon it. 12 I am left, therefore, with the position that Mr Oayda failed to answer the notice to produce of 13 of March 2006 on four occasions, he saying that he believed that once the company had abandoned the objection to the threshold question for a security for costs application, that the documents were irrelevant and he did not have to produce them. 13 The production on 30 May 2006 included tax returns which Mr Oayda, in his affidavit to which he referred in these proceedings, said did not exist. They clearly did exist. He says, however, that Pyoja was a trustee company and the business was run by Triple Eight and he did not believe that Pyoja returned information to the Australian Taxation Office as it did not run the business. 14 Mr Oayda says that as a result of his accountant telling him that such returns did exist, he made discovery in answer to the notice to produce. 15 A failure to comply deliberately with a notice to produce is a matter of contempt of Court. 16 I am not satisfied beyond reasonable doubt, however, that there was an intention to deceive the Court or to interfere with its administration. The matters of explanation to which I have alluded are sufficient to raise in my mind a doubt that means that the criminal onus has not been satisfied. 17 I dismiss the statement of charge and the notice of motion. In view of the lateness of the information that Mr Oayda stated from the Bar Table in his defence of Pyoja as its authorised director, that was crucial in raising a reasonable doubt, I make no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.