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[2026] NSWSC 1107
Supreme Court of NSW
2026-09-16
Harrison AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ballina Island Developments Pty Ltd v Hadler [2026] NSWSC 1107
Hearing dates: On the papers
Date of orders: 16 September 2026
Decision date: 16 September 2026
Jurisdiction: Equity
Before: Harrison AJ
Decision: Order the plaintiff to pay 75% of the defendants’ costs of the motion.
Catchwords: COSTS – where both parties had some degree of success in relation to application to set aside a notice to produce and subpoenas
Cases Cited: Ballina Island Developments Pty Ltd v Hadler [2026] NSWSC 922
Texts Cited: Practice Note SC Eq 11
Category: Costs
Parties: Ballina Island Developments Pty Ltd (Plaintiff)
Stephen Peter Hadler (First Defendant)
Mark John Stephenson (Second Defendant)
Colin Michael George (Third Defendant)
Alison Jane Muggleston (Fourth Defendant)
Catherine Maree Armstrong (Seventh Defendant)
Steven Boyd Armstrong (Eighth Defendant)
Thomas O’Brien (Ninth Defendant)
Ryan Joseph Oud (Tenth Defendant)
Sarah Jane Oud (Eleventh Defendant)
Trent John Hadler (Eighteenth Defendant)
Christopher James Muldoon (Nineteenth Defendant)
Sandra Gai Muldoon (Twentieth Defendant)
Stephen Thomas Tancred (Twenty Third Defendant)
Kylie Jayne Tancred (Twenty Fourth Defendant)
Evan James Harding (Twenty Seventh Defendant)
Clara Louise Harding (Twenty Eighth Defendant)
Marcus Anthony Da Silva (Twenty Ninth Defendant)
Elizabeth Anne Da Silva (Thirtieth Defendant)
Justin Edward Robert Ingram (Thirty First Defendant)
Clare Charlotte Ingram (Thirty Second Defendant)
Matt Richardson (Thirty Third Defendant)
Shae Patrick Hall (Thirty Fourth Defendant)
Jessica Joan Broadhurst (Thirty Fifth Defendant)
Noreen Ann Bensley (Thirty Sixth Defendant)
Sharon Elizabeth King (Fortieth Defendant)
Michael John King (Forty First Defendant)
LMH 3 Pty Ltd (Forty Second Defendant)
Rachel Lea Fysh (Forty Third Defendant)
John Ashley Barnes (Forty Fifth Defendant)
Rita Barnes (Forty Sixth Defendant)
Nutchareen Paiyaphosri (Forty Seventh Defendant)
Vicki Maree Kelly (Forty Eighth Defendant)
Timothy James Pobjoy (Forty Ninth Defendant)
Michael John Bell (Fiftieth Defendant)
Susan Louise Bell (Fifty First Defendant)
Sean Stephen Davy (Fifty Second Defendant)
Anita Golden Davy (Fifty Third Defendant)
Laura Rachel Jacobsen (Fifty Fourth Defendant)
Jared Wayne Jacobsen (Fifty Fifth Defendant)
Samuel David Capel Green (Fifty Eighth Defendant)
Kathryn Jayne Green (Fifty Ninth Defendant)
Bradley James Heard (Sixtieth Defendant)
Nicole Jenai Wallace (Sixty First Defendant)
Garry John Marshall (Seventy First Defendant)
Anna Maree Marshall (Seventy Second Defendant)
Martin Property Developments Pty Ltd (Seventy Third Defendant)
Samuel Alexander Hauville (Eightieth Defendant)
Marcelle Elva Hauville (Eighty First Defendant)
Representation: Counsel:
J Knackstredt (Plaintiff)
P Newton SC (Defendants)
Solicitors:
Macpherson Kelley (Plaintiff)
Clarissa Huegill & Associates t/as Conveyancing Plus (Defendants)
File Number(s): 2025/449539
Publication restriction: Nil
HIS HONOUR: On 5 August 2026, I published my reasons dealing with the plaintiff’s application to set aside the defendants’ notice to produce and a series of subpoenas issued to third parties: see Ballina Island Developments Pty Ltd v Hadler [2026] NSWSC 922.
The plaintiff’s first position was that as the parties to the proceedings had not served their evidence, Practice Note SC Eq 11 applied and the defendants were therefore required to show exceptional circumstances before an order for disclosure of documents ought be made. I rejected that argument.
The plaintiff also took issue with the breadth and specificity of the terminology used to identify the documents of which the defendants sought production from the plaintiff. It was my view that the terms of the notice to produce were in some respects in need of amendment. I invited the parties to address these concerns and to agree upon some changes to accommodate them. They did so.
I also considered that the defendants’ subpoena to one of the five subpoenaed third parties was drawn in terms that made compliance difficult or confusing and required amendment. I invited the parties to confer about the terms of that subpoena and they did so.
The plaintiff contends that there should be no order for costs.
The defendants on the contrary contend that the application to set aside the notice to produce and the subpoenas in the terms in which they were originally drawn failed and that the plaintiff should pay their costs. Their submissions were as follows.
First, by letter from the defendants’ solicitors dated 19 February 2026, the defendant requested financial documents and information. The plaintiff refused to provide the requested documents and information on the grounds that the request was “premature” having regard to Practice Note SC Eq 11. The plaintiff did not at that time otherwise challenge the request for financial documents and information.
Second, the notice to produce and subpoenas were served on 19 May 2026. In response, by letter from Macpherson Kelley dated 21 May 2026, the plaintiff now claimed that the notice to produce and subpoenas were an abuse of process as they were an attempt to circumvent paragraphs 4 and 5 of Practice Note SC Eq 11. On that basis alone, the plaintiff alleged that the notice to produce and subpoenas were liable to be set aside. The plaintiff did not otherwise challenge the notice to produce and subpoenas.
Third, the plaintiff did not give the defendants the opportunity to engage with any criticism or claim that the categories in the notice to produce and subpoenas were impermissibly wide or uncertain.
Fourth, by its notice of motion filed 4 June 2026, the plaintiff claimed orders that the notice to produce and subpoenas be set aside. The plaintiff did not obtain such orders.
Fifth, in support of the plaintiff’s notice of motion, it relied upon the affidavit of Ms Thornton, solicitor made 4 June 2026. The affidavit only identified two grounds for setting aside the notice to produce and subpoenas: that there had been an abuse of process by reason of alleged non-compliance with the Practice Note and that category 5 of the notice to produce was oppressive. The affidavit did not otherwise challenge the notice to produce and subpoenas.
Sixth, I found at [43] of my judgment that the circumstances were exceptional and therefore that the issue of the notice to produce and subpoenas was not an abuse of process. Furthermore, at [45] of the judgment, I found that category 5 of the notice to produce was not oppressive or unduly burdensome to the extent it sought a copy of all documents recording costs of the development without a temporal limitation.
Seventh, at paragraphs [43] and [44] of the judgment, I accepted the plaintiff’s submission that words such as “relating to” or “in relation to” or cognate expressions or phrases are apt to be impermissibly wide and uncertain and the language in the Westpac and ACN subpoenas “relating to an application for a loan” was far too broad. I also accepted that category 1 of the ACN subpoena should be rephrased. However, I did not make orders in accordance with the plaintiff’s motion. Consistently with the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings, I directed the parties to confer with the aim of agreeing on amendments to the notice to produce and subpoenas.
Eighth, after judgment was delivered, the parties agreed to orders for amendments to the subpoena to Credit Connect. No amendments were made to the subpoenas to ACN and Westpac and the parties agreed that general access should be granted in respect of documents produced under the subpoenas to ACN and Westpac. This is recorded in the orders made by consent on 9 September 2026. There were no amendments to the notice to produce and the parties agreed to a regime for production of documents in terms of the orders made by consent on 9 September 2026.
Finally, the defendants have incurred legal costs in having to issue the notice to produce and subpoenas and defend the plaintiff’s motion. Had the plaintiff engaged with the defendants in February 2026 and provided the documents and information requested, such costs would not have been incurred.
In the circumstances, the defendants have been successful on the plaintiff’s notice of motion. They successfully resisted the plaintiff’s’ claim to set aside the notice to produce and subpoenas. The plaintiff did not raise any suggestion that terminology in the subpoenas were impermissibly wide until after the notice of motion was filed. The notice to produce and subpoenas were not set aside and ultimately, only the schedule to the subpoena to ACN was amended.
It is clear that both parties had some degree of success. There was strictly no “event” by reference to which an order for costs could easily or unambiguously be determined. However, on balance it seems to me that the defendants were in large part successful. Doing the best I can, I consider that the plaintiff should pay 75% of the defendants’ costs of the motion.
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Ballina Island Developments Pty Ltd
Hadler
[2026] NSWSC 922