Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1744

Supreme Court New South Wales

Medium Neutral Citation: Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1744 Hearing dates: 12 November 2014 Decision date: 12 November 2014 Jurisdiction: Equity Division Before: Black J Decision: Order made for subpoena issued to be set aside. Orders made for first notice to produce, and relevant paragraphs of second notice to produce, issued to second and third defendants be set aside. Costs of the application be the second and third defendants' costs in the cause. Catchwords: PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena issued sought production of all documents maintained by third party in respect of company during relevant period - whether subpoena issued for legitimate forensic purpose - whether subpoena should be set aside.

PROCEDURE - notices to produce - application for notices to produce to be set aside - whether notices to produce issued for legitimate forensic purpose - whether documents sought relevant to issues in proceedings - whether notices to produce are inconsistent with SC Eq Practice Note 11 - whether notices to produce should be set aside. Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60 - Corporations Act 2001 (Cth) s 237 - Evidence Act 1995 (NSW) s 136 - SC Eq Practice Note 11 - Uniform Civil Procedure Rules 2005 (NSW) r 34.1 Cases Cited: - Commissioner for Railways v Small (1938) 38 SR (NSW) 564 - City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364 - Grace v Grace (No 8) [2014] NSWSC 419 - Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 - Re DCM Solar Pty Ltd (in liq) [2013] NSWSC 423 - Re North Coast Transit Pty Ltd [2013] NSWSC 1912 - Singtel Optus Pty Ltd v Weston [2010] NSWSC 1491 - Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 Category: Interlocutory applications Parties: Australian Mortgage & Finance Company Pty Ltd as Trustee for the Melnikoff Family Trust (First Plaintiff) Lilya Melnikoff (Second Plaintiff/First Cross-Defendant) Steve Melnikoff (Third Plaintiff/Second Cross-Defendant) Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust (First Defendant/First Cross-Claimant) Iryna Rosinska (Second Defendant/Second Cross-Claimant) Yuri Rudi (Third Defendant/Third Cross-Claimant) IUR Australia Holdings Pty Ltd (Fourth Defendant) Rome Euro Windows & Doors Pty Ltd (Fifth Defendant) Kathrin Rudi (Sixth Defendant) Representation: Counsel: D Hogan-Doran (Plaintiffs) D E Baran (First to Fourth Defendants) Solicitors: Aitken Lawyers Pty Ltd (Plaintiffs) Mills Oakley Lawyers (First to Fourth Defendants) File Number(s): 2014/28291