Supreme Court New South Wales Medium Neutral Citation: Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd [2011] NSWSC 794 Hearing dates: 26 July 2011 Decision date: 27 July 2011 Jurisdiction: Equity Division Before: Black J Decision: Subpoena not set aside but several paragraphs limited as set out in judgment. Catchwords: Subpoena - Application to set aside - limiting scope of subpoena. Category: Interlocutory applications Parties: Break Fast Investments Pty Ltd (Plaintiff) C & O Voukidis Pty Ltd (Defendant) Representation: Counsel: M.W. Young (Plaintiff) D.L. Cook (Defendant) Solicitors: Proctor Phair (Plaintiff) JBT Lawyers (Defendant) File Number(s): 2010/425491 Judgment 1The Defendant, C & O Voukidis Pty Ltd, moves to set aside a subpoena to produce dated 30 June 2011 addressed to it ("Subpoena") or, alternatively, for an order that specified paragraphs of the subpoena be set aside to a specified extent. The Defendant also seeks orders that the time for compliance with so much of the Subpoena as is not set aside be extended to 28 July 2011. 2The underlying proceedings concern a caveat lodged by the Plaintiff over two properties of which the Defendant is registered proprietor. The caveat claims a beneficial interest in the land as trustee in a share proportionate to the Plaintiff's contributions to the land. The facts identified to support the caveat are that: "[The Plaintiff] contributed to the purchase of the property and made loan repayments in reduction of the loan over the land and paid rates and made other capital contributions over the land ["contributions"] and accordingly has a beneficial interest in the land which is held by [the Defendant] as trustee for [the Plaintiff] in a share proportionate to [the Plaintiff's] contributions over the land." 3The Plaintiff has identified eight payments traced to a bank account maintained by the Defendant between December 2004 and 6 February 2006 which it contends were made without authority. However, the caveat is not in its terms confined to the contribution allegedly made by those payments. 4There are other proceedings between the Plaintiff and the Defendant and others in the Supreme Court of Victoria and the Defendant refers to evidence which might, on one view, suggest an intention to cross-examine a director of the Defendant in these proceedings as a "warm up" for the Victorian proceedings. It is not necessary for me to determine whether that allegation is well founded in order to deal with the objections to the Subpoena. The Subpoena will be limited to the extent that the material sought to be produced properly go to matters in issue in these proceedings and the documents produced will, of course, be subject to the implied undertaking. 5The Defendant contends that the Subpoena is a fishing expedition for reasons other than adducing evidence in the proceedings, is oppressive (with one qualification) or an abuse of process. The qualification is that Counsel for the Defendant confirmed that the Defendant did not contend that the volume of documents produced or the scope of the searches required by the Subpoena would themselves give rise to any oppression. 6Subject to the specific objections as to the scope of particular paragraphs with which I will deal below, it seems to me that the documents sought to be produced under the Subpoena are relevant to the matters in issue in the proceedings and I do not consider there is any basis to find improper purpose, oppression or abuse of process in issuing a Subpoena for the production of documents which are relevant to the matters before the Court. I will, however, deal with the specific objections which are taken in respect of the scope of the Subpoena. 7First, objection is taken to a number of paragraphs on the basis that they extend beyond the "relevant period" as defined in the affidavit of Jonathan Bowers-Taylor dated 21 July 2011 on which the Defendant relies to set aside the Subpoena. That period is defined as the period 24 December 2004 to 6 February 2008 being the period in which the Plaintiff has already identified payments made to the Defendant's account. I do not consider that the objection to the Subpoena on the basis that it extends beyond the "relevant period" is well founded. The caveat is not, in its terms, limited to an interest arising from contributions in that period and the Plaintiff is entitled to support it by reference to contributions made, if it can establish them, in the wider period which is the subject of the Subpoena. 8I note that no question of oppression as to the scope of the searches which would be required or the volume of documents which would be required in respect of the wider period was raised before me. I do not set aside or narrow any of the paragraphs so far as they extend beyond the "relevant period". 9Second, objection is taken to paragraphs 1 and 2 so far as they extend to land tax notices. In my view the concept of "capital contributions" contained in the caveat is sufficiently wide to include payments in respect of land tax and I do not set aside those paragraphs. 10Objection is taken to paragraph 3 of the Subpoena so far as it calls, in effect, for all documents relating to the properties. Plainly, the paragraph could not stand in that form. However, rather than setting aside that paragraph, I should limit it so that it requires production of documents within the specified categories of documents in that paragraph. 11Objection is taken to paragraph 4 so far as it extends to cheques and cheque books relating to any payment "other than those contended for in the caveat". The basis of that objection is not clear since the caveat does not extend to particular specified payments. I do not set aside that paragraph but I limit the documents required to be produced under it so far as it requires cheque books and cheques butts for the period specified in it which refer to or evidence payments in respect of the two properties. A question may arise as to whether irrelevant material appearing in documents which are produced in response to that paragraph of the Subpoena may properly be masked, but that is a matter to be addressed with at the point of production and by an application to permit such masking, if the Defendant is so advised, rather than by an application to set aside the Subpoena. 12Objection is taken to paragraph 5(b) of the Subpoena on the basis that it does not relate to payments contended for in the caveat. It is not apparent on the evidence before me that the annual package fee referred to relates to the specified properties, and I set aside that paragraph. 13Paragraphs 5(e), 5(g), 5(h), 5(k) and 5(l)-(w) are not, on their face, limited to payments in respect of the properties subject to the caveat. I do not set aside those paragraphs, but I limit the documents required to be produced to those which, first, relate to the two specified properties and, second, which refer to or evidence contributions to purchase, rates, any other capital contribution in respect of or any other loan repayment in reduction of the loan over the two properties. 14I will extend the time for compliance to 4.00 pm 28 July 2011 with liberty to apply if any further issue arises. ********** 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. Decision last updated: 08 August 2011