David Richard Hawes v Trevor Laurence Dean [2013] NSWSC 1236

Supreme Court New South Wales

Medium Neutral Citation: David Richard Hawes v Trevor Laurence Dean [2013] NSWSC 1236 Hearing dates: Thursday 8 August 2013 Decision date: 08 August 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Grant leave to the defendants to serve not later than 4pm today a notice to produce requiring production to the Court at 9.30am on Monday 12 August 2013 of the documents or things referred to in the purported notice of 22 July 2013 but omitting from paragraph 1 thereof the matter "and other documents which comprise, record or refer to the income, assets and liabilities" Catchwords: PROCEDURE - Notice to produce Legislation Cited: (NSW) Uniform Civil Procedure Rules, r 34.1 Category: Procedural and other rulings Parties: David Richard Hawes (first plaintiff) Hawes Investments Pty Limited (second plaintiff) Trevor Laurance Dean (first defendant) T & B Investments Pty Limited ACN 070 907 809 (second defendant) Hawden Property Group Pty Limited ACN 003 528 345 (third defendant) Hawden Constructions Pty Limited ACN 098 528 539 (fourth defendant) Gallwey Pty Limited ACN 063 430 937 (fifth defendant) Representation: Counsel: Mr GM McGrath (plaintiffs) Mr JE Lazarus (defendants) Solicitors: Staunton & Thompson (plaintiffs) JT Law (defendants) File Number(s): 2009/ 290891

Judgment (ex tempore) 1At the hearing appointed for 12 August 2013 the defendants and cross-claimants propose to seek, inter alia, an order to the effect that the liability of the first and second defendants to the plaintiffs in respect of certain matters be set-off against the liability of the first and second cross-defendants to the first cross-claimant in respect of other matters. Those matters include the prospective potential costs liabilities of each set of parties to the other. This order is sought notwithstanding that there is not a precise correspondence of the parties against and in favour of whom the various judgments and orders might be given. 2As I understand it, the defendants propose to argue that such a course, which was referred to in argument as "a general pooling" as distinct from a precise set-off, would be justified if the plaintiffs against whom the defendants would have judgment were not financially able to satisfy any such judgment. In aid of that argument, the defendants on 22 July served on the plaintiffs a purported notice to produce under UCPR r 34.1 requiring production of the following documents or things to the Court on 29 July 2013 at 10am: 1. The most recent set of each of the financial statements, balance sheet, profit and loss statements, business activity statements and other documents which comprise, record or refer to the income, assets and liabilities of Glenside Group Pty Ltd ACN 003 515 893. 2. The current Statement of Assets and Liabilities of David Richard Hawes. 3UCPR r 34.1(1) provides as follows: (1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner: (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing. 4As at 22 July 2013 the only hearing appointed before the Court was that to take place on 14 August. No time had been fixed by the Court for return of subpoenas and no leave had been sought or granted under r 34.1(1)(b). In those circumstances, the notice to produce was incompetent and did not impose any obligation on the plaintiffs to produce anything at all. 5That said, while the relief sought by the defendants in this respect in the nature of a "general pooling order" is unusual, it is not suggested that I should determine today that it is not available. It is clear enough, and the contrary was not seriously contended, that the financial position of Glenside Group and Mr Hawes could be relevant to an argument as to whether or not such an order should be made. 6In those circumstances, I would not have set aside the notice on grounds of irrelevance, subject to the deletion from paragraph 1 of the matter "and other documents which comprise, record or refer to the income, assets and liabilities". 7For the plaintiffs, it was contended that if production were required, access should be limited to counsel. Nothing has been put before the Court to indicate why the financial position of Glenside Group or Mr Hawes should be regarded as so confidential as to be limited in that way, bearing in mind that the implied undertaking as to use of the material would apply in any event. 8As the original notice was incompetent, for more abundant caution I will order that the notice dated 22 July 2013 be set aside. 9I grant leave to the defendants to serve a notice to produce not later than 4pm today requiring production of the documents or things referred to in the purported notice of 22 July 2013 but omitting from paragraph 1 thereof the matter "and other documents which comprise, record or refer to the income, assets and liabilities" to the Court at 9.30am on Monday 12 August 2013. 10As the original notice was incompetent and the plaintiffs have succeeded in having it set aside and the defendants have in effect required an indulgence to issue a further notice, the defendants must pay the plaintiffs' costs of today, and I so order.