New South Wales Supreme Court CITATION : J P Morgan Trust Australia Limited v Kapetanovic [2007] NSWSC 1423 HEARING DATE(S) : 5 and 6 December 2007 JUDGMENT DATE : 7 December 2007 JUDGMENT OF : Harrison J DECISION : Lupco Angelovski to pay the plaintiff's costs of and incidental to the subpoena issued on 28 September 2007 on and from 9 October 2007. CATCHWORDS : CIVIL PROCEURE – subpoena for production of documents issued to defendants' former solicitor - failure by solicitor to comply with terms of subpoena – attempts to obtain documents unsuccessful - application for issue of arrest warrant for failure to comply – warrant issued – evidence given by solicitor for failure to comply – unsatisfactory explanation – costs awarded to plaintiff from date of service of subpoena LEGISLATION CITED : Uniform Civil Procedure Rules 2005 J P Morgan Trust Australia Limited (Plaintiff) PARTIES : Lena Kapetanovic (First Defendant) Elvis Stefanoski (Second Defendant) FILE NUMBER(S) : SC 15675 of 2006 COUNSEL : A C Casselden (Plaintiff) SOLICITORS : Gadens Lawyers (Plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST HARRISON J 7 December 2007 15675 of 2006 J P Morgan Trust Australia Limited v Lena Kapetanovic & Anor JUDGMENT 1 HARRISON J: These proceedings came before me in the duty judge list on the application by the plaintiff for the issue of a warrant for the arrest of Lupco Angelovski. I issued that warrant on Wednesday 5 December 2007 in circumstances to which I will shortly refer. Background 2 By its statement of claim filed 20 November 2006 the plaintiff sues to recover slightly in excess of $570,000 together with an order for possession of two properties against the security of which that money was advanced. A defence filed on 13 June 2007 by the first defendant alleges that she was under a special disability or a situation of disadvantage which would have been sufficiently evident to the plaintiff to make its conduct unconscionable in the circumstances in which the mortgages were procured. 3 By notice of motion filed 28 November 2007 the plaintiff moved the Court for judgment pursuant to rule 13.1 UCPR or in the alternative that the defendants' respective defences be struck out pursuant to rule 14.28. Judgment against the defendants pursuant to rule 16.8 was sought in the further alternative. That matter was listed to be heard yesterday. 4 Lupco Angelovski is a solicitor trading as B J Murphy, Angelovski & Associates. It is said that Mr Angelovski is the solicitor who acted on behalf of the defendants in the mortgage transaction which is the subject of the present proceedings. 5 On 28 September 2007 a subpoena directed to Mr Angelovski was issued out of the registry of the Court. That subpoena was in the usual form and sought in the Schedule the production of documents described as follows: "1. All documents or copies of all documents in relation to Lena Kapetanovic and Elvis Stefanoski, including but not limited to: (a) the file(s) for the loan and/or mortgage to Lena Kapetanovic and Elvis Stefanoski in relation to property situated at and known as 15 Myrtle Street, Prestons, New South Wales; (b) the file(s) for the loan and/or mortgage to Lena Kapetanovic in relation to property situated at and known as 2/38 Nagle Street, Liverpool New South Wales; (c) any loan application(s); (d) any documents provided in support of any loan application(s), loans or mortgages involving to Lena Kapetanovic and Elvis Stefanoski; (e) any diaries or file notes recording any meeting or conversations with Lena Kapetanovic and Elvis Stefanoski; (f) any timesheets, or time recording entries in relation to Lena Kapetanovic and Elvis Stefanoski; and (g) any letters or emails sent by you or by any other party in relation to Lena Kapetanovic and Elvis Stefanoski." 6 That subpoena was served upon Mr Angelovski by Mark Gerard Slater, a licensed process server, on Friday 28 September 2007 at 2.26pm. An affidavit of service sworn by Mr Slater on 4 October 2007 is annexed to the affidavit of Anais Lauren Morgan sworn 5 December 2007 upon which the plaintiff relied in support of its application for the issue of a warrant. 7 Ms Morgan's affidavit also annexes copies of the following correspondence: (a) A facsimile dated 9 October 2007 from the plaintiff's solicitors to Mr Angelovski. The transmission of that facsimile was unsuccessful. (b) A facsimile dated 16 November 2007 from the plaintiff's solicitors to Mr Angelovski. (c) A facsimile dated 4 December 2007 from the plaintiff's solicitors to Mr Angelovski. (d) A facsimile dated 5 December 2007 from the plaintiff's solicitors to Mr Angelovski. 8 The facsimile of 16 November 2007 recited that on 9 October 2007 Mr Angelovski acknowledged service of the subpoena upon him. The letter alleged that on five separate occasions he had failed to comply with the subpoena. The letter continued as follows: "The subpoena was first returnable on 9 October 2007. We contacted you after you failed to produce documents and you informed us that you had only just retrieved your file from storage and would produce it on the next occasion." ***** "We attempted to contact your office on several occasions following our conversation with you on 9 October 2007 but were informed that your telephone number, email and facsimile numbers had been disconnected. The subpoena has been further returnable on 16 October 2007, 23 October 2007, 30 October 2007 and 13 November 2007. No documents were produced on any of those occasions." 9 The letter then went on to inform Mr Angelovski that the subpoena had been "re-listed" for 28 November 2007 at 9.00am and that the plaintiff would call upon it on that date. It reminded Mr Angelovski that a subpoena is an order of the court and that a failure to comply with it may amount to a contempt. Further, the letter informed Mr Angelovski that should documents not be produced the plaintiff would seek instructions to issue a notice of motion to enforce the subpoena including possibly an order that he be brought before the court to explain his continuing failure to comply with it. 10 The facsimile of 4 December 2007 was in similar, but more detailed, terms. It informed Mr Angelovski that the subpoena would be called upon at 9.00am on 5 December 2007. It concluded with the request that Mr Angelovski contact the writer "as a matter of urgency". 11 The facsimile of 5 December 2007 informed Mr Angelovski in no uncertain terms that the plaintiff would be making application to the duty judge at noon on 5 December 2007 for the issue of a warrant for his arrest. It annexed a copy of the notice of motion and a copy of the affidavit of Ms Morgan sworn 5 December 2007 to which I have referred. 5 December 2007 12 The matter came before me as the duty judge at 12.50pm on 5 December 2007 as foreshadowed. Mr Casselden of counsel appeared at that time for the plaintiff. After reading the affidavit of Ms Morgan and hearing submissions from counsel I indicated that I would be prepared to issue a warrant for the arrest of Mr Angelovski. However, I suggested that in advance of that occurring, the solicitor for the plaintiff should attempt to contact Mr Angelovski once more to inform him of what I had proposed. The matter was adjourned at 1.00pm and came back before me at 2.08pm. I was informed by counsel that calls to Mr Angelovski's telephone were unanswered except for a diversion to voicemail. 13 I issued the warrant which was made returnable before me yesterday at 10.00am. 6 December 2007 14 Mr Angelovski appeared before me at 10.00am yesterday. He was unrepresented by counsel or a solicitor. He was provided with a further affidavit of Ms Morgan sworn 6 December 2007 which deposed to a series of conversations with Mr Angelovski in detail on 9 October 2007, 15 November 2007, 27 November 2007 and 4 December 2007. Ms Morgan also deposed to a series of further conversations with Mr Angelovski on 5 December 2007 between 8.20am and 5.00pm. It is important to set out Ms Morgan's recollection of what Mr Angelovski said to her on each occasion. 15 In the first conversation of 5 December 2007 Mr Angelovski allegedly said to Ms Morgan: "I have my file. There is a very important document showing Elvis' signature which is covered by the subpoena and needs to be in the file. I have fallen behind in my filing. Can you give me time to locate the document and I will get my file to you by lunchtime today? Please adjourn until tomorrow morning." 16 In the second conversation Mr Angelovski is alleged to have said the following: "I am not in the office, so I will do my best to get the documents to you. It will not be possible to get them to your office by 10.00am. If I send you the file, can you copy the documents for me? I will call you when I get to the office. Then you can organise for a courier to come and collect the documents." 17 In a voicemail message left at approximately 3.10pm, Mr Angelovski said the following: "I am ready to release the file. We need to organise a courier. Please call me straight away." 18 In the third conversation Mr Angelovski is alleged to have said the following: "I will arrange a courier to get the documents to you right away. Can you please fax me a copy of the subpoena." 19 Finally, during the fourth conversation on that day Mr Angelovski is alleged to have said the following: "There is nothing to produce in the file; it is the remnants of a file. There is a notation on the file saying that the client has taken the documents. The original signed copies get sent to the lender and I keep unsigned file copies and our account. They are not on the file anymore." 20 At my suggestion, Mr Angelovski entered the witness box and gave evidence. At the time of preparing these reasons I had not been provided with a transcript of the evidence which he gave. For that reason I make the following comments with a degree of circumspection. 21 Mr Angelovski has been a solicitor of this Court for approximately 15 years. He acknowledged, although it ought in the circumstances to have been self-evident, that a subpoena could not, and ought not to, be lightly disregarded by a member of the public and particularly by a member of the legal profession. Mr Angelovski apologised for any inconvenience which he had caused and for his conduct since the service of the subpoena upon him. He described why he had not produced documents in answer to the subpoena. 22 In my opinion, for reasons that have not been satisfactorily explained, Mr Angelovski failed properly or adequately to comply with the subpoena which had been served upon him either by the production of documents in a timely way or by the giving of a satisfactory explanation, if he had one, why no documents could be produced. Mr Angelovski did neither of these things. In this last respect I observe that in my view the "explanation" proffered by him in the witness box was unsatisfactory. Even without the benefit of the transcript of that evidence it is possible to say that there were inconsistencies between what Mr Angelovski said in the witness box and some of the material deposed to by Ms Morgan in the affidavits to which I have referred. He did not treat the subpoena as a matter of priority as he should have. Costs 23 The plaintiff sought costs of and incidental to the subpoena issued on 28 September 2007 on and from 9 October 2007. I consider that in the circumstances Mr Angelovski should pay those costs. I so order. ********** 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.