Australia and New Zealand Banking Group Limited v James (No 2) [2019] NSWSC 59

Supreme Court New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Limited v James (No 2) [2019] NSWSC 59 Hearing dates: 7 February 2019 Decision date: 12 February 2019 Jurisdiction: Equity - Commercial List Before: Ball J Decision: The amended notice of motion filed on 25 October 2018 dismissed with costs Catchwords: CIVIL PROCEDURE – Discovery – Subpoenas – whether documents necessary for the resolution of the real issues in dispute Legislation Cited: Practice Note SC Eq 11 Category: Procedural and other rulings Parties: Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) (Plaintiff | Respondent) David Anthony James (Defendant | Applicant) Representation: Counsel:

R Foreman with K Boyd (Plaintiff | Respondent) J Baird (Defendant | Applicant)

Solicitors:

Allens Linklaters (Plaintiff | Respondent) Allsop Glover Lawyers (Defendant | Applicant) File Number(s): 2013/306563 Publication restriction: None

Judgment

Introduction 1. By an amended notice of motion filed on 25 October 2018, the plaintiff, David Anthony James (Mr James), seeks discovery from the defendant, Australian and New Zealand Banking Group Limited (ANZ), and leave to issue subpoenas to PricewaterhouseCoopers (PwC) and Crowe Howarth. The motion also seeks leave to issue a third subpoena to Mr George Mawad and Mr Joe Younan. However, an order in those terms was not pressed at the hearing of the motion.

Background 1. The dispute between Mr James and ANZ has a long and complicated history, most of which is not relevant to the current application. 2. It is sufficient for present purposes to observe that ANZ had advanced substantial sums of money to a number of companies controlled by Mr James, including TLT Nominees Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (TLT) and Newcastle Liquor Wholesalers Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (NLW). Those companies together carried on a substantial business of producing and selling wine. 3. On 19 August 2013, ANZ appointed Mr Hall and Mr Merryweather of PwC as receivers of the companies to which it had lent money. Their appointment followed an investigation carried out by PwC into the financial position of the companies. The companies were placed into liquidation at about the same time. 4. On 11 October 2013, ANZ commenced these proceedings against Mr James seeking to recover the sum of $14,133,818.66 together with interest under four guarantees Mr James had given in respect of loans that had been provided by ANZ to the companies controlled by Mr James. 5. On 23 April 2014, ANZ filed a notice of motion for summary judgment against Mr James and, on 16 May 2014, judgment was entered against him by consent for the sum of $13,928,818.66. 6. By a notice of motion filed on 19 September 2017, Mr James made an application to set aside the consent judgment on the ground that he had been induced to consent to it by ANZ's misrepresentation by silence. That motion has been listed for hearing on 17 and 18 April 2019. The current application is made in support of that motion.