Gasnier v Gasnier Pty Ltd [2019] NSWSC 833

Supreme Court New South Wales

Medium Neutral Citation: Gasnier v Gasnier Pty Ltd [2019] NSWSC 833 Hearing dates: 7 June 2019 and 3 July 2019; written submissions received 14 and 23 June 2019 Decision date: 05 July 2019 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Subpoenas to be set aside Catchwords: CIVIL PROCEDURE – subpoenas – application to set aside – documents produced without objection by subpoenaed parties – whether party causing subpoenas to be issued has demonstrated a legitimate forensic purpose Cases Cited: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Rinehart v Rinehart [2018] NSWSC 1102 Seven Sydney Pty Ltd v Fuji Xerox Australia Pty Ltd [2004] NSWSC 902 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Category: Procedural and other rulings Parties: Mark Troy Gasnier (Plaintiff/Applicant) Gasnier Pty Ltd (First Defendant/Respondent) Dean Gasnier (Second Defendant/Respondent) John Gasnier (Third Defendant/Respondent) Janene Gasnier (Fourth Defendant/Respondent) Representation: Counsel: A Byrne (Plaintiff/Applicant) D Meyerowitz-Katz (Second Defendant/Respondent)

Solicitors: Clyde & Co (Plaintiff/Applicant) WMD Law (Second Defendant/Respondent) File Number(s): SC 2016/176014

Judgment 1. The plaintiff, Mr Mark Gasnier, and the second defendant, Mr Dean Gasnier, are brothers. 2. The third and fourth defendants, Mr John Gasnier and Mrs Janene Gasnier, are their parents. 3. For convenience, and without intending any disrespect or over familiarity, I will refer to these family members by their given names. 4. Mark and Dean are the sole directors and shareholders of the first defendant, Gasnier Pty Ltd, the trustee of the Gasnier Family Trust. 5. Mark, Dean, John and Janene are beneficiaries of that trust. 6. Mark and Dean have fallen out and there is now a deadlock within Gasnier Pty Ltd. 7. The disputes between Mark and Dean are many and various. The matter is fixed for hearing for 10 days commencing 21 October 2019. 8. On 16 April 2019 Dean issued a large number of subpoenas. 9. On 26 April 2019 Mark filed a notice of motion seeking to have those subpoenas set aside. 10. Four subpoenas remain in dispute, namely those addressed to: 1. David Mackay Real Estate Pty Limited; 2. HSBC Australia Holdings Pty Ltd; 3. St George Illawarra Dragons Rugby League Football Club Pty Ltd; and 4. a solicitor, Mr Wayne Lodge. 1. Each of the subpoenaed parties has, without objection, produced documents in response to the subpoenas. 2. The question now is whether Dean has demonstrated that there is a legitimate forensic purpose for the production of the documents sought. 3. To have a legitimate forensic purpose it must be shown that it is likely the documentation sought will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documentation will so assist: Rinehart v Rinehart [2018] NSWSC 1102 at [43] (Ward CJ in Eq); ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9], [21]-[22]. 4. The parties agree with this summary of the background contained in an affidavit sworn by Mark's solicitor, Mr Edward Burrell: "These proceedings concern a family trust established in 2006, the governance and management of the trust (and its trustee – [Gasnier Pty Ltd]), and a property development undertaken by the trustee. In 2015 and 2016 the board of the trustee (then, and still, comprising [Mark] and [Dean], who were also, and remain, the sole and equal shareholders of the trustee) fell into dispute and became deadlocked. Consequently, these proceedings were commenced in June 2016, with [Mark] seeking, by way of relief, orders for inter alia [Dean's] production of materials; the replacement of the trustee; and [Dean's] repayments to the trust of authorised payments from the trustee. Shortly after, in August 2016, [Dean] filed and served a cross-summons seeking numerous declarations about the trust, trustee and property development. … On 19 August 2016, the Court made orders…for the appointment of a referee, accountant Fiona Bateman…to determine a number of questions (set out in the schedule to the orders) relating to contributions to the trust. Between around September 2016 and May 2017, [Mark] and [Dean] engaged in extensive correspondence with the Referee, which included the provision, by [Mark] and [Deane], of substantial materials and submissions to the Referee. On 10 May 2017, the Referee provided a draft of her report (addressing the questions referred to in the schedule to the Orders…) to [Mark] and [Dean] and invited any further comment. Accordingly, between around May 2017 and March 2018, [Mark] and [Dean] engaged in further correspondence with the Referee, providing additional materials and submissions. On about 28 March 2018, the Referee handed down, and provided to the Court, her final report". 1. An issue between Mark and Dean is whether their contributions to the development by Gasnier Pty Ltd of a property in Woolooware were equal. 2. Gasnier Pty Ltd purchased the Woolooware property in 2008 primarily with funds of Mark. Mark and Dean entered into an agreement pursuant to which, on various terms, Dean would be responsible for the costs of developing the property, with the intended outcome that, at the completion of the development, the contributions of Mark and Dean to Gasnier Pty Ltd would be equal. The Woolooware property was redeveloped. The construction works were completed during 2011. 3. One of the Referee's conclusions was that Mark and Dean did not make equal contributions to the Woolooware development, as had been intended by their agreement. The Referee concluded that Dean contributed $191,942 less than Mark. 4. The Referee's report has not yet been adopted. Both Mark and Dean seek various adjustments to the Referee's conclusions. The Court has ordered that those matters be determined at the final hearing.