Hexiva Pty Ltd v Lederer [2006] NSWSC 561

New South Wales Supreme Court

CITATION : Hexiva Pty Ltd v Lederer [2006] NSWSC 561

HEARING DATE(S) : 1 June 2006 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 06/01/2006

DECISION : Order for examination made, without prejudice to claims for privilege.

CATCHWORDS : EVIDENCE – PROCEDURE - Subpoenas – procedure when sufficiency of compliance questioned

LEGISLATION CITED : Uniform Civil Procedure Rules, Pt 33 r 12 Civil Procedure Act 2005, s 97(1)(ii)

Australian Securities & Investments Commission v Southcorp Limited (2003) 46 ACSR 438 CASES CITED : Gate Gourmet Australia Pty Limited (In Liq) v Gate Gourmet Holding AG (2004) NSWSC 768 Ryder v Frohlich [2005] NSWSC 1342 Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306

Hexiva Pty Ltd (P1) Robert Wechsler (P2) PARTIES : Katie Wechsler (P3) Hexiva Pty Ltd as Trustee Katie Wechsler Family Trust (P4) Paul Lederer, Richard Slazenger & Douglas Hamiltom as Executors & Trustees of the late Andrew Lederer (D1) MIchael Du Maurier (D2)

FILE NUMBER(S) : SC 2626/2000

Robert Wechsler appearing in person (Ps) COUNSEL : Ms NL Sharp (D1) Mr CD Wood (D2)

Robert Wechsler appearing in person (Ps) SOLICITORS : Landerer & Co (D1) PWCoopers (D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Thursday 1 June 2006

2626/00 Hexiva Pty Limited & 3 ors v Andrew Lederer & Anor JUDGMENT (ex tempore) Re application to examine Graham Hurwitz (see p 23 of transcript) 1 HIS HONOUR: The first defendants apply for an order that Graham Hurwitz, an accountant who is to be a witness both as to fact and of expert opinion in the plaintiffs' case, attend to be examined as to his compliance with a subpoena for production of documents which has been served upon him. 2 The proceedings have been set down for hearing commencing on 25 September this year, for three weeks. The questions of liability and damages have been severed, so that the trial will proceed at this stage only as to liability. Mr Hurwitz has sworn three affidavits, which the plaintiffs have filed and served in the proceedings in support of their claim for equitable compensation, the first on 20 June 2002, attaching a report of that date; the second on 23 December 2003, attaching a report of that date; and the third on 8 September 2005, attaching a report of that date. 3 The subpoena, which was issued on 7 October 2005, requires production by Mr Hurwitz of the following documents: 1. All documents which are or concern communications between you (or people acting at your direction, under your authority or in conjunction with you) and Hexiva Pty Limited, Robert Wechsler, Katie Wechsler or Hexiva Pty Limited acting as trustee of the Katie Wechsler Family Trust ("the plaintiffs") in relation to the quantum of damages alleged to have been suffered by Hexiva Pty Limited in Supreme Court of New South Wales proceedings no. 2626 of 2000, including without limitation: a) records or discussions;