Davies v Beyond Building Systems Pty Ltd & ors [2009] NSWSC 1489

New South Wales Supreme Court

CITATION : Davies v Beyond Building Systems Pty Ltd & ors [2009] NSWSC 1489

HEARING DATE(S) : 30 October 2009 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 30 October 2009

DECISION : Motion dismissed with costs.

CATCHWORDS : PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of Court – Amendment – whether plaintiff should be granted leave to further amend statement of claim

LEGISLATION CITED : (CTH) Corporations Act 2001, s 233

CATEGORY : Procedural and other rulings

Laurie v Carroll (1958) 98 CLR 310 CASES CITED : Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155 Rice Growers Co-operative Limited v ABC Containerline (1996) 138 ALR 480

Steven Michael Davies (plaintiff) PARTIES : Beyond Building Systems Pty Ltd (first defendant) Vincent Brian Lee Smith (second defendant) Henrih Horthy (third defendant)

FILE NUMBER(S) : SC 4263/09

COUNSEL : Ms V Culkoff (plaintiff) Mr D Pritchard SC (defendants)

SOLICITORS : Steven Klinger (plaintiff) Addisons (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 30 October 2009

4263/09 Steven Michael Davies v Beyond Building Systems Pty Ltd JUDGMENT (ex tempore) 1 HIS HONOUR: Although the court record does not appear to disclose it, the parties do not dispute that, on 2 October 2009, I dismissed a motion filed on 29 September 2009 whereby the second and third defendants sought orders varying the orders made by Justice White on 18 September 2009 and substituting an alternative access regime to some of the first defendant's computer financial records, which would have provided for no access to the PayPal accounts. 2 The history of these proceedings, since 2 October 2009 until the present, has involved competing attempts by the plaintiff to secure access to the PayPal accounts and by the defendants to impose more or less restrictive access regimes in respect of those accounts. 3 That debate, proceeded in part formally (including by the plaintiff's Notice of Motion filed on 13 October 2009), and in part informally (by a draft interlocutory process, prepared by the second and third defendants on or about 8 October 2009, and subsequent draft orders setting out the access regime which they proposed). Ultimately, by orders made, some by consent and some not by consent today, the plaintiff's position has prevailed. Viewed objectively, although there are one or two minor deviations from what the plaintiff sought, the plaintiff substantially has succeeded in that dispute.