J T Interior Pty Ltd v Ozzy States Pty Ltd [2018] NSWSC 1336

Supreme Court New South Wales

Medium Neutral Citation: J T Interior Pty Ltd v Ozzy States Pty Ltd [2018] NSWSC 1336 Hearing dates: 29 August 2018 Date of orders: 31 August 2018 Decision date: 31 August 2018 Jurisdiction: Common Law Before: Harrison J Decision: The defendant's application is stood over Catchwords: JUDGMENTS AND ORDERS – enforcement – order for examination – application to set aside or vary order – where order loosely drafted – application stood over Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876 Quadunion Builders Pte Ltd v Aircraft Support Industries Pty Ltd (No 2) [2015] NSWSC 1857 Category: Principal judgment Parties: Ozzy States Pty Ltd (Applicant/Defendant) J T Interior Pty Ltd (Respondent/Plaintiff) Representation: Counsel: M Klooster (Applicant/Defendant) T Boyle (Respondent/Plaintiff)

Solicitors: Madison Marcus Law Firm (Applicant/Defendant) Dentons Australia (Respondent/Plaintiff) File Number(s): 2017/331449 Publication restriction: Nil

Judgment 1. HIS HONOUR: On 18 December 2017, an examination order was made that required Remolo Nigro, a director of the defendant, to produce documents as follows: "You are ordered to: 1… 2 Produce to the court the following documents or things that are in the judgment debtor's possession or control: (a) Copies of any document/s in relation to any obligation to pay monies to the company that remain owing. (b) Copies of any document/s in relation to any obligation to pay monies to the company that will become owing in the future. (c) Copies of any document evidencing any transfer/s of monies to bank accounts of any related entity since January 2017." 1. The defendant has now sought an order by notice of motion filed on 4 July 2018 to set aside this portion of the examination order pursuant to UCPR r 36.15. 2. UCPR r 36.15 provides as follows: "36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent." 1. This rule would not appear to apply in the present case. 2. However, there is an inherent power in the Court to permit a person affected by an ex parte order to apply to set it aside or vary it: see New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876 at [31] per Davies J. The defendant would appear to qualify as it is not in issue that the examination order was made in its absence.