Investec Bank Australia Limited v Craig Anthony Anderson [2013] NSWSC 74

Supreme Court New South Wales

Medium Neutral Citation: Investec Bank Australia Limited v Craig Anthony Anderson [2013] NSWSC 74 Hearing dates: 1 February 2013 Decision date: 01 February 2013 Jurisdiction: Equity Division Before: Sackar J Decision: Category: Principal judgment Parties: Investec Bank Australia Limited - plaintiff Craig Anthony Anderson - defendant Representation: Counsel: Dr R Higgins - plaintiff C Anderson (in person) File Number(s): 2012/208135

Judgment

Ex tempore (revised 7 February 2013) 1By its notice of motion the plaintiff seeks to set aside paras 1-5 inclusive of a notice to produce issued by the defendant. 2The purpose of paras 1-5 appears to be to procure evidence in relation to para 14 of the defendant's commercial list response. Para 14 of the commercial list response asserts in broad terms that there was an agreement in place whereby title in a property at xx xxxxx xxxxxx, Potts Point, would be transferred to the plaintiff in full discharge of a $10,000,000 debt facility. That is in turn, as I understand it, said to provide a basis for asserting that no damage has or could have been sustained by the plaintiff because it received real estate in satisfaction of the debt. 3The allegation in para 14 is somewhat vague. However, I have been told by Mr Anderson in argument that he anticipates evidence will be filed which he asserts will substantiate the allegation made in para 14. That evidence according to the present timetable is to be filed on or about 22 February this year. 4There are a number of objections to paras 1-5. Many of them I need not repeat but all of the objections whether they are said to be of a generic or a more specific kind seem to me to be sustainable. First paras 1 and 2 provide no date range. Mr Anderson attempted to give a reason for that but I am not satisfied that that relieves him or any person issuing a notice to produce from at least attempting to confine the date range as best they can. No such attempt has been made. 5Secondly, the language in paras 1 and 2 which is identical, speaking as it does of documents "evidencing, recording or concerning et cetera" is itself indeed very wide. I understand the reason why he has cast it so widely but indeed it does seem to me that it falls foul of the requirement in the rules for precision in that regard. There are a multitude of entities referred to in paras 1 and 2 which by no means makes it easy for anyone trying to respond to work out precisely how to respond. 6Those problems in relation to paras 1 and 2, indeed, flow through and have certain consequences in relation to the way in which a person responding to this notice would reasonably comprehend their obligations under paras 3, 4 and 5. There is indeed a lack of specificity of what is required and for the reasons articulated by Dr Higgins both orally and in her detailed written outline, in my view the notice to produce, paras 1-5 should be set aside. 7In any event, in relation to the assertion in para 14 of the response there is an explanation from a Mr Sargant in his affidavit of 17 October 2012 at [13]. He asserts in response to para 14 that there was no surplus in relation to the sale of the property at Potts Point, and therefore a loss was occasioned. He also says, however, that the allegation in relation to the agreement is incorrect. At the moment he gives no further detail in relation to that but reserves his right to file, if need be, any affidavit material. I certainly have not on this motion taken that into account but he certainly has indicated in fairness to the defendant that the allegation is either without substance because there was no surplus or, alternatively, the allegation is simply incorrect. 8The defendant, of course, is not bound to accept that material. However in all the circumstances the course that I propose to adopt is, for the reasons otherwise stated, to set aside paras 1-5 of the notice to produce. 9I also consider the defendant should file his evidence and then the allegation contained in para 14 can be revisited in the light of any application he may then make to procure any documentation. The practice note (SC Eq 11) is to generally ensure the parties define issues by filing their evidence before discovery takes place. On the facts in my view this case provides no exception. 10It seems to me that the Court is best able to manage the proceedings going forward once it sees the evidence if any, which the defendant is able to put on in relation to the alleged agreement referred to in para 14. Once that evidence is filed and the agreement is exposed for what it is worth, then the question of any discovery can be judged and can be addressed in a more focussed way. 11For the above reasons, I set aside paras 1-5. 12Each party to pay their own costs of the motion.