Kostov v YPOL Pty Ltd [2017] NSWSC 39

Supreme Court New South Wales

Medium Neutral Citation: Kostov v YPOL Pty Ltd [2017] NSWSC 39 Hearing dates: 3 February 2017 Date of orders: 03 February 2017 Decision date: 03 February 2017 Jurisdiction: Common Law Before: Schmidt J Decision: The leave granted by Lindsay J on 27 January 2017 for the defendants to issue a subpoena to Telstra in respect of Ms Kostov's records be revoked.

Costs reserved. Catchwords: PROCEDURE – notice of motion – order sought setting aside the leave to issue a subpoena on Telstra – order revoked Cases Cited: Kostov v YPOL Pty Ltd [2016] NSWSC 1722 Category: Procedural and other rulings Parties: Adriana Kostov (Plaintiff) YPOL Pty Ltd AC 109710698 (Frist Defendant) Jeffrey Easton (Second Defendant) Representation: Counsel: Ms S Callan (First Defendant)

Solicitors: Ms A Kostov, unrepresented (Plaintiff) Sparke Helmore Lawyers (First Defendant) File Number(s): 2016/257819 Publication restriction: No

EX TEMPORE Judgment 1. HER HONOUR: This matter came into the list today in order for a motion filed on 30 January 2017 by the plaintiff, Ms Kostov, to be dealt with. 2. During the course of this morning's hearing a number of things have emerged. First, Ms Kostov no longer seeks an order setting aside the leave Lindsay J granted the defendants on 27 January 2017, to file a motion in the proceedings by which an order is sought of the Court that she be dealt with for contempt. 3. What Ms Kostov did press was that an order Lindsay J also made that day, giving the defendants leave to issue a subpoena to Telstra as to her phone records, be set aside. 4. During the course of the submissions a further development emerged, namely, that Ms Kostov has conceded that the communications which are the subject of the charge, which appears at annexure A to the 27 January motion, both those made by email and those made by telephone, emanated from her. 5. In those circumstances I raised with the defendants the necessity of the pursuit of the Telstra records. The application for an order setting aside their leave to issue that subpoena was still opposed, in circumstances where it was explained that those records might provide further examples of other breaches of Bellew J's orders, on which the allegations of contempt rest. 6. In the face of all that has developed today, including what has fallen from Ms Kostov in relation to the purging of any contempt involved in communications which may have involved a breach of Bellew J's orders by way of apologies, which she says she has already communicated to the Court when the matter came before the Registrar and which she reiterated today and the concessions which she made in relation to what is raised by the charge, I am satisfied that the leave Lindsay J granted for the subpoena to be issued to Telstra, should be revoked. 7. The subpoena seeks records going back to August 2016. That does not seem to be relevant to the matters dealt with either in the statement of charge, or the period to which any contempt involved in a breach of Bellew J's orders of December 2016 could relate (see Kostov v YPOL Pty Ltd [2016] NSWSC 1722). 8. That will not, of course, preclude renewal of an application for leave to issue a subpoena, in the event of further developments. 9. In that regard, I have explained to Ms Kostov, who appears unrepresented, that Bellew J's orders continue to bind her, she not having taken steps, which she explains she had considered, to have the judgment and orders set aside. I have also explained to her that any further breach of those orders could involve her in other contempt and suggested to her in a relevantly detailed way, that she should take some advice as to how she should best proceed when the contempt motion next comes before the Court in February.