Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909

Supreme Court New South Wales

Medium Neutral Citation: Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909 Hearing dates: 11 July 2019 Date of orders: 17 July 2019 Decision date: 17 July 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Dismiss the plaintiff's application to set aside the subpoenas issued to each of National Australia Bank Ltd and Australian and New Zealand Banking Group Ltd. (2) Grant access to the parties to the documents produced in answer to those subpoenas limited, in the first instance (in the case of the defendants) to access by the defendants' legal representatives but without prejudice to the ability of the defendants' legal representatives to seek a variation of this order to permit access by the defendants themselves to one or more of the documents, specifying which, if necessary for the defendants' legal representatives to obtain proper instructions in relation to the forthcoming security for costs applications or otherwise in relation to the proceedings. (3) Set aside the notice to produce issued to the plaintiff by the defendants without prejudice to the ability of the defendants to issue a fresh notice to produce (reflecting these reasons), such notice to require the production of documents within seven days. (4) The plaintiff to pay the defendants' costs of the plaintiff's notice of motion to set aside the subpoenas (including the costs, if any, of the amended notice of motion filed by the plaintiff on 11 July 2019). (5) Each party to bear its own additional costs (if any) of the plaintiff's application to set aside the notice to produce (i.e., any costs over and above the costs of the plaintiff's application to set aside the subpoenas to National Australia Bank Ltd and Australian and New Zealand Banking Group Ltd). Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process – subpoenas issued for the production of documents from National Australia Bank Ltd and Australian and New Zealand Banking Group Ltd – whether a legitimate forensic purpose for production – whether merely a fishing expedition – whether the issuing of the subpoena subverts the operation of Practice Note SC Eq 11