CIVIL PROCEDURE - r 1604 of the Court Procedures Rules 2006 (ACT) - Application to return property - Requirement for specificity in good sought - not an application for discovery - similarity to procedure on subpoena application

Uniform Civil Procedure Rules 2015 (NSW) r 16.5

Wornes v Freewater Australia Pty Ltd [2022] ACTSC 147

Young v Queensland Trustees Ltd (1956) 99 CLR 560

Banic Holdings Pty Ltd (ACN 612 277 648) (First Plaintiff)

National Cleaning Services (ACN 104 430 926) (Second Plaintiff)

Raska Group Pty Ltd (ACN 133 550 937) (Third Plaintiff)

Papandrea Partners Pty Ltd (ACN 133 550 937) (First Defendant)

• 1․ The plaintiffs seek an order from this court that the defendants return to them a series of documents set out in schedule 1 to the Originating Claim.
• 2․ The order sought is an order under r 1604 of the Court Procedure Rules 2006 (ACT) ('CPR'):

(a) An order, pursuant to paragraph 2(a) of r 1604 of the Court Procedures Rules 2006 (ACT), that the defendants return the goods specified in schedule 1 to this originating claim to the plaintiffs.

(b) An order pursuant to paragraph 5 of r 1604 of the Court Procedures Rules 2006 (ACT), that the defendants return the goods specified in schedule 1 to this originating claim to the plaintiffs without the option of the defendants retaining the goods and paying their value.

COURT PROCEDURES RULES 2006 - r 1604

(1) This rule applies to a proceeding in relation to the detention of goods.

(2) The court may give judgment for the plaintiff against the defendant, in accordance with the plaintiff's claim for relief, for either -

(a) the return of the goods to the plaintiff, or the retention of the goods by the defendant and payment to the plaintiff of the value of the goods; or

(b) payment to the plaintiff of the value of the goods.

(3) If the court gives judgment for the return of goods, it may state a date before which the return must take place.

(4) If the court gives judgment for the return of goods, but the goods are subsequently damaged, destroyed or otherwise made unavailable for return, the court may, on the plaintiff's application, order the defendant to pay the value of the goods to the plaintiff.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(5) If the court gives judgment under subrule (2) (a), and the plaintiff subsequently applies for an order under this subrule, the court may make an order for the return of the goods to the plaintiff without the option of the defendant retaining the goods and paying their value.

• 3․ The plaintiffs application is for an order pursuant to paragraph 2 (a) and (5): -
• 4․ This is an unusual case in that the goods sought are documents.

• 5․ The plaintiffs are three separate, but inter-related companies.

(c) First plaintiff is Banic Holdings ('P1').

(d) Second plaintiff is a company previously known as National Cleaning Services Australia Pty Ltd ('P2').

(e) Third plaintiff is Raska Group Pty Ltd ('P3').

• 6․ In addition to the three plaintiffs - there is reference to:

(a) S Banic Family Trust ('SBFT') the trustee for which is P1.

(b) Banic Investment Trust ('BIT') the trustee for which is P3.

(c) Banic and Raska Joint Venture ('BRJV') a joint venture between P1 and P3.

• 7․ There is significant complexity to the background, structure and personalities involved in the three companies, however, regardless of that complexity the issue between the parties in these proceedings is relatively simple.
• 8․ The plaintiffs have their origin in the business dealings of the late Predrag Banic and his father Svetozar Banic.

(a) Predrag Banic died intestate in 2015, his father Svetozar Banic was his sons sole surviving family member.

(b) Svetozar Banic died in 2021.

• 9․ On 16 December 2016, Svetozar Banic granted an enduring power of attorney to D2 and concurrently to Ms Dragana Cupac.
• 10․ Ms Cupac is a relative of Svetozar and Predrag Banic. She is now the sole director of each of the three plaintiffs.

• 11․ The first defendant ('D1') is an accounting firm, and the second defendant ('D2') was a Certified Public Accountant ('CPA') who was the managing partner of that firm.
• 12․ The defendants undertook accounting work for the plaintiffs at various times.
• 13․ D2 was at various times a director and/or secretary of the plaintiffs.
• 14․ The defendants are alleged to have received documents relating to the plaintiff's business in the course of carrying out the accounting work and/or as a director/secretary of the plaintiffs.

• 15․ D2 was the sole director of P1 from its registration on 9 May 2016 until 4 September 2017.
• 16․ From 5 July 2018 to 11 October 2019 D2 was appointed as a director of P1 with Ms Cupac who was also appointed as a director.
• 17․ On 11 October 2019 D2 ceased to be director and/or secretary of P1.

• 18․ On or about 6 November 2015 D2 was appointed as a director of P2.
• 19․ On or about 16 August 2019 Ms Cupac was appointed a director of P2 concurrent with D2.
• 20․ From about 6 November 2015 D2 ceased to be a director of P2, but continued in the role of company secretary, resigning on 29 August 2019 but remaining on record with ASIC in that role until 5 June 2020.
• 21․ From about 2003 to 2010 D2 undertook accounting work for P2.
• 22․ From about 2010 to about June 2019 D1 and D2 undertook accounting work for P2.

• 23․ On or about 6 November 2015 D2 was appointed as sole director and company secretary of P3. D2 ceased to act as a director on 4 September 2017.
• 24․ From about 2010 to 2019 D1 and D2 undertook accounting work for P3.

• 25․ D1 provided accounting services to each of the plaintiffs:

• 26․ On 2 July 2019, the plaintiffs then solicitors wrote to the defendants seeking provision of various documents in relation to transactions conducted on behalf of the plaintiffs.[1]
• 27․ The defendants responded by letter dated 9 August 2019 with a letter covering 5 folders of material.[2] On 9 August 2019 the plaintiffs then solicitors collected 5 folders of documents from the defendant's office.[3]
• 28․ On 13 September 2019, the plaintiff's then solicitors sought advice from Mr Paul Green (a forensic accountant) in relation to "concern[s] about the actions taken by [D2] over many years, including concerns that that property of funds may have been dealt with incorrectly or inappropriately."
• 29․ In his responding report, dated 22 November 2019, Mr Green has included a list of material that he considered should be obtained from the defendants.[4] That document was referred to by the parties as the "Green list".
• 30․ The schedule of material sought by the plaintiffs in these proceedings largely replicates the Green list.
• 31․ On 29 September 2020, the plaintiffs then solicitors wrote to the defendants seeking the further material as outlined in the Green list.[5]
• 32․ The defendants ultimately responded by letter on 16 March 2021.[6] Attached to that correspondence is a synopsis of the material said to be provided.

• 33․ Whilst there are minor disagreements between the parties as to the dates when certain events transpired, these do not affect my findings in this matter.
• 34․ The true issue in dispute focusses on a small portion of the pleadings:

Statement of Claim > > 20. The documents received by D1 which are the property of the plaintiffs included the documents specified in the Schedule to the Originating Claim accompanying this Statement of Claim (Documents) > > Defence > > 20. The defendants deny the allegations in paragraph 20 > > Statement of Claim > > 22. The documents received by D2 which are the property of the plaintiffs include the documents specified in the schedule to the originating claim accompanying the statement of claim (documents). > > Defence > > 22. The defendants deny the allegation in paragraph 22. > > Statement of Claim > > 23. On or about 29 September 2020 the Plaintiffs, by their solicitors demanded delivery of the documents. > > Defence > > 23. In response to paragraph 23 the defendants: > > (a) say that correspondence has been exchanged between the parties in respect of the provision of documents by the defendants to the plaintiffs; > > (b) say that the correspondence included requests by the plaintiffs to be provided documents; > > (c) say that the correspondence included the provision of documents in response to those requests. > > (d) rely on that correspondence for its full meaning and effect: > > (e) otherwise deny the allegations in the paragraph. > > Statement of Claim > > 24. The defendants have neglected or refused to deliver up the Documents. > > Defence > > 24. The defendants deny the allegations in paragraph 24.

• 35․ The plaintiffs rely on a court book filed 30 May 2023 containing the following affidavit or statement material:

(a) Dragana Cupac

(b) Dennis Martin

(c) Maarten Vlot

(d) Michael Macitti

(e) Michael Papandrea

• 36․ The statement of Ms Cupac has 81 annexed sets of documents covering 981 pages.
• 37․ Ms Cupac gave oral evidence in addition to her statement filed 6 June 2023 (Exhibit 4)
• 38․ I accept Ms Cupac as being an honest witness. Her evidence covered the material in the court book, however because of the timing of her involvement in the plaintiff entities (her appointments as director/secretary occurring in 2019) she has no firsthand knowledge of documents passing to the defendants.

• 39․ Counsel for the plaintiff has urged me to take an unusual course in determining this matter:

Because we don't have any affidavit material that tells us what documents are in their possession and we say that Your Honour should be able to go through the schedule, understand what documents are to be produced and make orders in that regard.[7]

• 40․ This position is clarified in the plaintiffs' written closing submissions:

The plaintiffs submit that the Court should infer that the Documents existed at the relevant times as without some of these documents (as applicable to each entity), D1 could not have complied with lodging tax reporting obligations on behalf of the plaintiffs.

• 41․ The first question that arises if I take that approach is how am I to come to an understanding of what documents are in the defendant's possession?
• 42․ There is no expert accounting evidence which would assist me in understanding what if any documents were required by the accountants to produce the materials which are in the possession of, and relied upon by, the plaintiffs - in particular the taxation records.
• 43․ The second issue which arises is that this is not an application for discovery. On a discovery application the court would have the power to make an order of the type contemplated in that submission in relation to a class of documents. This application is a claim for a return of property which is alleged to be in the possession of the defendant(s). As such this is more akin to an application for a subpoena than it is to discovery.
• 44․ In closing submissions, counsel for the plaintiff referred me to Young v Queensland Trustees Ltd (1956) 99 CLR 560 ('Young') as authority for the proposition that once I have come to an understanding as to what documents the defendant(s) have, then an evidential onus shifts to the defendant(s).
• 45․ A close reading of Young makes it clear that that approach is flawed. Young was a case where a series of loans were made to the Respondent by a deceased person. Upon the Respondent having admitted having received the loans, the onus shifted to him to prove the repayment he claimed had been made.
• 46․ In this case, where the defendant specifically denies receiving the documents which are the subject of the claim, or pleads that they have been returned, there is no evidential burden on the defendant.
• 47․ The plaintiffs carry the onus of proving that the defendants are in possession of the documents referred to in Schedule 1.
• 48․ The defence to the claim at paragraph 19 and 20 of the Statement of Claim puts the plaintiffs on notice that they must prove the possession of the documents by the defendants.
• 49․ In this case, the plaintiff suffers from the disability that the previous controlling minds of the various entities are either D2 or one or other of Mr Banic who is deceased. Ms Cupac is now the controlling mind of the relevant plaintiff entities. She is also the executor of the estate of Mr Svetozar Banic.
• 50․ In addition to the chronological difficulty experienced by Ms Cupac, her evidence was undermined by two significant issues which became apparent during cross examination. The first issue is that a number of the documents sought in schedule 1 appear to have been included in the plaintiff's own correspondence with their accountants after they appear to have been surrendered to the plaintiffs by the defendant.
• 51․ The second issue Ms Cupac's statements in relation to some of the documents in schedule 1 which appear from her own affidavit material to have been previously provided by the plaintiffs. By way of example:

(a) In response to Schedule 1 item 3.5 being recorded as having been previously provided: I'd have to look at that specifically, because it was not - it was included for a reason. There was something missing.[8]

(b) In response to Schedule 1 item 3.5 being recorded as having been previously provided: There was something wrong with all of them, if not all of them, at least two. But I'd have to go through my records of the details between. There were always issues.[9]

• 52․ The 5 folders of material supplied by the defendants were not put before the court, and further, there was no detail of what it was that Ms Cupac says is missing. Amidst the significant quantity of correspondence which was annexed to Ms Cupac's statement (which included numerous repeated requests for responses to previous correspondence and canvassed the fees which would be incurred in searching for and copying documents)[10] there was no correspondence which identified what parts of the purportedly surrendered material was incorrectly recorded as being surrendered or what documents were incomplete, partially incomplete, or unsigned.
• 53․ There are no notes or check lists which would indicate that the documents referred to on the synopsis were missing or incomplete, or alternatively to set out in detail what documents were included In relation to whether any cross check was done as between what is requested in Schedule 1 and what has been previously provided, I was informed by counsel for the plaintiffs that there was such a list. No such list was relied upon by the plaintiffs and the response from the defendants to the revelation of the existence of such a list gave me the clear impression that no such list was discovered to them.
• 54․ In response to the suggestion that she had not cross-checked between what was sought by Schedule 1 and what had been previously provided Ms Cupac's response was that she had done so as much as possible.[11]
• 55․ The evidence put forward by the plaintiffs was wholly unsatisfactory in this regard. Where the documentary evidence indicates that a document has been provided by the defendants, and there is no contemporaneous response indicating a deficiency in that provision, I find that the document was provided as described.

• 56․ The documents sought can be broken down into 5 classes of materials.

(a) Accounting data and back up files / General ledgers.

(b) Financial statements.

(c) Bank statements.

(d) Supporting documents for transactions.

(e) Company documents and minutes.

Accounting data and back-up files / General ledgers

• 57․ In relation to these documents, the defendants rely on a 'terms of engagement' letter dated engagement from D1 and signed by D2 dated 1 July 2014 (Exhibit 8).
• 58․ That document sets out various terms of the engagement. This includes a provision as to 'ownership of documents':

The final Financial Statements, Income Tax Returns and any other documents which we are specifically engaged to prepare, together with any original documents given to us by you, shall be the property of you. Any other documents brought into existence by us including general journals, working papers, the general ledger, draft financial statements and copies of tax returns, will remain or property at all times.

• 59․ On its face this document applies to the engagement between D2 and:

(a) National Cleaning Services Australia Pty Ltd

(b) Banic Investment Trust

(c) Raska Investments Pty Ltd

(d) Raska Investments Capital Trust

(e) Raska Investment Discretionary Trust

(f) Predrag Banic.

• 60․ The plaintiff says that this document ceased to have effect once Mr Banic died and was replaced as director and as such this clause has no effect. I reject that proposition.
• 61․ Regardless of whether the replacement of Mr Banic as director was as a result of death or resignation, the nature of the entities had not changed in any substantial way.
• 62․ The actual reference to significant change is contained on the first page of the letter:

Papandrea Partners undertakes to send an Engagement Letter to you periodically to ensure you are aware of the terms of engagement or when a significant change occurs in the terms and conditions of engagement.

• 63․ I read that clause to mean that a fresh letter would be required if D2 made a change to the way in which they provide their service, rather than being a reference to any change to the structure of their client.
• 64․ On the second page of the document it purports to expand the coverage to include its reach:

This letter relates to all of the entities outlined in Schedule 1 (the "Entities"). It also relates to any other entity for which PP are instructed to provide any kind of service or advice by the signatories of this letter either jointly or individually.

• 65․ The letter was sent to [redacted email address]. He was on notice as to the terms of service offered by D1. The fourth schedule to the engagement letter is signed by P Banic.
• 66․ That engagement letter covered the relationship between D1 and the parties named in the schedule. Through the expansion clause, it also operates in relation to the other entities which fell under the umbrella of the Banic Group.
• 67․ If that expanded clause did not operate to cover the other entities specifically, it is clear to me that D1 had intended that the documents brought into existence by them; including general journals, working papers, the general ledger, draft financial statements and copies of tax returns, would remain their property at all times.
• 68․ These following documents claimed by the plaintiffs are the property of D1 and cannot be subject of the order sought by the plaintiffs:

(a) Documents re BIT

(i) Item 1.1 Accounting data files and back up files.

(ii) Item 1.2 General ledgers

(b) Documents re P2

(i) Item 2.1 Accounting data files and back up files.

(ii) Item 2.2 General ledgers

(c) Documents re S Banic Family Trust

(i) Item 3.1 Accounting data files and back up files.

(ii) Item 3.2 General ledgers

(d) Banic and Raska JV

(i) Item 4.2 General ledgers

• 69․ I dismiss the plaintiffs claim in relation to items 1.1, 1.2, 2.1, 2.2, 3.1, 3.2 and 4.2.

• 70․ At item 1.3 the plaintiffs seek: Financial Statements of the Banic Investment Trust, including all supporting schedules for the financial year ended 30 June 2014.
• 71․ At item 1.4 the plaintiffs seek: Tax returns of the Banic Investment Trust including all supporting schedules for the financial year ended 30 June 2014.
• 72․ Attached to the Green commissioning letter is a list of documents provided to Mr Green. These include: 2012 - 2015 tax returns and statements for Raska Group Pty Ltd (Trustee of the BIT).
• 73․ There is no evidence as to whether the expression "statements" as used in the Green commissioning letter and the expression ''supporting schedules" as used in the Green list and in Schedule 1 are the same, similar or different documents.
• 74․ There is no evidence before me to assist in determining whether a separate tax return is submitted for the trust where one has been submitted by the trustee.
• 75․ The defendants by their pleading at paragraph 23 and by their submissions say that this item has been answered, and that it is obvious from the plaintiff's own documents that this is the case.
• 76․ I find that the 2012 - 2015 tax returns for the trustee of the BIT have been provided to the plaintiffs.
• 77․ There is no evidence before me that a separate tax return is, or was ever, required for the BIT (as opposed to the trustee thereof).
• 78․ I dismiss the plaintiffs claim in relation to items 1.3 and 1.4.

• 79․ The plaintiffs seek the return of bank statements for the BIT at items 1.5, and for P2 at 2.3.
• 80․ There is no evidence before me that "bank statements" were received by either defendant.
• 81․ In its synopsis of provided documents dated 16 March 2021, the defendants make the following assertions:

Bank statements for all bank and loan accounts held by the company for the period 1 July 2015 to the most recent date (or date of closure of the account)

Bank statements for all bank and loan accounts held by the company for the period 1 July 2014 to the most recent date (or date of closure of the account)

Bank statements for all bank and loan accounts held by the company for the period 1 July 2014 to the most recent date (or date of closure of the account)

• 82․ In the absence of such evidence, the plaintiff has asked me to presume or assume that bank statements would in the normal course be provided to the accountants.
• 83․ Whilst that may have been a reasonable assumption in a previous era, in the age of Internet and electronic banking I am unable to make the assumption urged by the plaintiffs.
• 84․ Evidence in relation to the provision of bank statements could easily have been procured from the relevant banks simply asking what address, if any, statements were sent to during the relevant period. This was not done. The defendants correctly point out that the plaintiffs are in the unique position of having a right to ascertain from third parties (such as banks) what documents have historically been issued to its agents or its former directors.
• 85․ No expert accounting evidence has been led which would assist me in determining whether the accountants need the actual bank statements, or just a final figure at a particular point in time to create the documents upon which the plaintiffs have relied, as a foundation for a finding that the defendants have these materials.
• 86․ There is no evidence that bank statements were ever provided to either of the defendants.
• 87․ I dismiss the plaintiff's claim in relation to items 1.5 and 2.3.

• 88․ At item 1.9 the plaintiffs seek documents relating to a series of properties belonging to the BIT for the period 12 September 2015 to 30 June 2019.
• 89․ The documents sought are:

(a) rental statements - 1.9(i);

(b) settlement statements received upon sale - 1.9(ii);

(c) sale contracts - 1.9(iii);

(d) property valuation reports at the time of sale 1.9(iv);

(e) loan statements -1.9(v); and

(f) discharge notice for loans repaid - 1.9 (vi);

• 90․ The disposition of the properties as identified from the Exhibit 4 is as follows:

• 91․ The first of the properties to be disposed of was Burkitt St, Page on 28 August 2014. The last of the properties to be disposed of was 4/9 Collie St, Fyshwick on 18 April 2019.
• 92․ By 8 December 2015, ten of the properties were under contract. By 12 January 2016, 12 of the properties were under contract, but not settled. The disposal of the properties is clear from the notes to the financial statements for the year ended 30 June 2016. This document shows loans of $9,290,199.85 appearing in the 2015 figures against 11 of the properties, but not in the 2016 figures.[17]
• 93․ A loan against the property at 4/9 Collie St, Fyshwick remains in the 2016 figures for the amount of $414,485.07.

• 94․ Attached to the 2016 tax return for BIT (Exhibit 4 - Tab 49A) are a series of Rental Property Schedules for 2016:

• 95․ I find that there was rental income received in relation to the following properties:

(a) Item 1.9 (h) - 4/9 Collie St, Fyshwick.

(b) Item 1.9 (j) - 67A Burkitt St, Page

(c) Item 1.9 (l) - 35 Aurora Close, Mawson.

(d) Item 1.9 (n) - 35 Blackman Cres, Macquarie.

• 96․ There is no evidence before me as to what, if any, process was used for the recording of rental receipts in the period prior to 12 September 2015. There is evidence by way of the synopsis prepared by the defendants that "rental property statements" had been sent. In relation to the SBFT, but there is no evidence of such documents in relation to BIT.
• 97․ In their answer to the plaintiff's request for documents the defendants have enclosed a synopsis for P3 (the trustee of BIT) indicating that all documents held for the company were returned to Snedden Hall & Gallop.
• 98․ I dismiss the plaintiffs claim in relation to rental records for items 1.9 (a) - (g), (i),(k), (m) and (p) as there is no evidence that rent was received for the relevant properties for the period sought, and as such I cannot find that rental statements have ever existed for the period between 12 September 2015 and the date on which the property was disposed of.
• 99․ I dismiss the plaintiffs claim in relation to rental record for item 9 (q) as there is no evidence of any other property assets held on behalf of BIT.
• 100․ On the basis of the synopsis provided by the defendants I find that it is more probable than not, that the relevant material in relation to the remainder of the properties was provided in the previous tranche of surrendered material. I dismiss the plaintiffs claim as it relates to rental records for items 1.9 (h), (j), (l), (n) and (o).
• 101․ I dismiss the plaintiffs claim in relation to items 1.9(i) (a) - (q).

Settlement statements - 1.9(ii) and Sale contracts - 1.9(iii)

• 102․ By their defence, the defendants deny being in possession of these documents.
• 103․ In the plaintiffs' request for these documents, the request for sale contracts is qualified by the request: if held by Chamberlains Law Firm, or another third party, please request and provide copies.[18]
• 104․ Correspondence from the defendant's lawyers on 22 March 2021 indicate that files held by one of the third-party professionals are expected to be received by our client at the end of this week.[19]
• 105․ There is no evidence that the defendants received the originals or copies of such documents from the solicitors who appear to have acted on the sale.
• 106․ The plaintiffs have clearly anticipated the potential that the defendants are not in possession of that material. The defendants by their pleadings deny possession of that material.
• 107․ The evidence indicates that Chamberlains Law Firm acted as conveyancers for the sale of the various properties. There is no evidence that the sale contracts and/or settlement statements were forwarded from Chamberlains Law Firm to either D1 or D2.
• 108․ Mr Green report of 22 November 2019[20] states that:

I note that I have not been provided with any information indicating that the properties were advertised to market, and went through a due sale process. This assertion is based on documents provided to me to date, including settlement statements, of which none detail sales commission or advertising expenditure in relation to the sold properties.

• 109․ The affidavit of Mr Dennis Martin of Snedden Hall & Gallop was included in the court book which was filed by the plaintiffs. That affidavit refers to the service of a notice for Non-party production on the defendants. The affidavit is not of much assistance as the 74 pages of accompanying material to which the deponent has referred was not provided to the Court.
• 110․ Mr Martin's affidavit is covered by a header page identifying Chamberlains Law Firm as a respondent. On the first day of hearing there was discussion of such a notice having been served on Chamberlains.
• 111․ As with banking records, the easiest way home for the plaintiffs to prove possession of those documents was through their originator. Where Chamberlains had been advising the Company as opposed to it director, this should have been a fairly simple task.
• 112․ I dismiss the plaintiff's application at paragraph 1.9 (ii) and (iii) in relation to each of the properties identified at 1.9 (a) - (q).

• 113․ There is no evidence that property valuations were conducted prior to sale of the relevant properties - which appears to have been on the open market.
• 114․ If such valuations were conducted, there is no evidence that the actual valuation was or is in the custody of the defendants, as opposed to the conveyancers - Chamberlains Law Firm.
• 115․ I dismiss the plaintiff's application at paragraph 1.9(1v) in relation to each of the properties identified at 1.9 (a) - (q).

• 116․ For the same reasons that I have dismissed the plaintiff's application for bank statements (1.5 and 2.3) I dismiss the plaintiff's application for loan statements at paragraph 1.9(v) in relation to each of the properties identified at 1.9 (a) - (q).

• 117․ There is no evidence that such notices were provided to the defendants as opposed to being provided to the conveyancers for the purpose of settlement.
• 118․ I dismiss the plaintiff's application for discharge notices at paragraph 1.9(vi) in relation to each of the properties identified at 1.9 (a) - (q)

• 119․ A significant number of the claims by the plaintiffs are for "supporting documents".
• 120․ The plaintiff's counsel conceded the breadth of this clause and further was unable to explain how it could be applied and whether, for example, it would capture a post-it-note passed between two of the accountants working on a file together.
• 121․ This is not an application for discovery where orders can be made to produce classes of documents. This is an application for the return of the plaintiff's property.
• 122․ Counsel for the defendants referred me to cases relating to the drafting of subpoenas which are analogous to the application made in this case.
• 123․ In Wornes v Freewater Australia Pty Ltd [2022] ACTSC 147 the Supreme Court warned against making amendments which would involve making a forensic choice which the court cannot make on a party's behalf.
• 124․ I am given some comfort in applying that analysis by considering the commentary to Uniform Civil Procedure Rules 2015 (NSW) r 16.5, which is in terms very similar to CPR r 1604. The authors make the following observation in the commentary to the NSW rule:

The goods should be described with sufficient particularity that the defendant can identify the goods to comply with the judgment, and the sheriff can identify the goods if they have to be seized from the defendant.

• 125․ The last part of that commentary reinforces in my mind the need for specificity in describing the property which is to be returned. Neither the Court nor the Sheriff should be in a position where a forensic choice is to be made as to what document is subject to seizure. Such a forensic decision would be required in relation to the undefined class of documents sought by the plaintiffs.
• 126․ I dismiss the plaintiff's application in relation to items: 1.6, 1.7, 1.8, 1.10, 1.11, 1.12, 1.13, 2.10, 2.11, 2.12, 2.13, 2.14, 3.4, 3.5, 3.10.

• 127․ At the relevant time, P3 was the trustee for the BIT. As such P3 had the obligation to administer the trust. The trustee is responsible for managing the trust's tax affairs, including registering the trust in the tax system, lodging trust tax returns and paying some tax liabilities.
• 128․ The trust does not act on its own behalf, rather that is the role of the trustee.
• 129․ The plaintiffs have sought a number of documents relating to the BIT.

Documents regarding corpus distributions - BIT - 1.14, Minutes re distributions - BIT - 1.15 and Vesting of trust - 1.19.

• 130․ As with the request for "supporting documents" the request at 1.14 is drafted in such broad terms that no order against the defendants would be capable of execution by a sheriff if the property was to be seized. On that basis alone I find against the plaintiffs in relation to item 1.14.
• 131․ The original request arising from the Green List was for:

Details of Corpus Beneficiary 1 and Corpus Beneficiary 2, distributed to in the 2017 financial year, including:

(a) Beneficiary name.

(b) Basis for split of distribution between beneficiaries.

• 132․ The request by Mr Green appears to be more of a request for information, rather than for a specific document.
• 133․ In the synopsis of material provided to the plaintiffs under the letter from the defendant's lawyers dated 16 March 2021 it covers a large and unspecified set of documents relating to P3:[21]

Transfer all original documents held for the Company, including the Constitution to Snedden Hall & Gallop Lawyers as soon as possible.

• 134․ If all documents held by the trustee for BIT have been returned to the plaintiffs, this may include documents in relation to the trust. However, I was not assisted by any expert accounting evidence as to how trust documents are treated by trustee companies.
• 135․ I dismiss the plaintiff's application in relation to item 1.14 and 1.15 and 1.19.

Documents recording advice by Chamberlains Law - 1.16

• 136․ In their reply to the plaintiffs by letter 9 August 2019, D2 refers to having received advice from Chamberlains Law in relation to the replacement of P3 as trustee of BIT.[22]
• 137․ In the synopsis provided to the plaintiffs on 16 March 2021, the Defendants refer to the request for the advice.[23]

Provide copies of advices and supporting documentation referenced in your letter of 9 August 2019, at paragraph 2.3 in relation to the appointment of Elevon Pty Ltd by Banic Holdings Pty Ltd as nominee for the S Banic Family Trust.

No written advice. In any case not property of the trust.

• 138․ There is no evidence that a document recording the advice by Chamberlains Law exists. I dismiss the plaintiff's application in relation to item 1.16.

Documents recording change of trustee BIT - 1.17

• 139․ This request is further particularised to include:

(a) Any deed relating to the change of trustee;

(b) Any transfer forms relating to the change of trustee.

• 140․ There is a "Deed of Change of Trustee" contained in the exhibit material at parge 842 of the tender documents. There is no evidence before me that any other change of trustee occurred in relation to the BIT.
• 141․ There is no evidence that any transfer form was required to be completed in relation to the change of trustee. If such a form was required to be completed that form would need to be lodged with the relevant authority. As such the original of such form would not be in the possession of the defendants.
• 142․ I dismiss the plaintiff's application in relation to item 1.17.

Documents recording the appointment of Elevon Pty Ltd as trustee of BIT - 1.18

• 143․ As with the request for "supporting documents" this request is drafted in such broad terms that no order against the defendants would be capable of execution by a sheriff if the property was to be seized. On that basis alone I find against the plaintiffs.
• 144․ As with item 1.17 the "Deed of Change of Trustee" at page 842 answers this request.
• 145․ I dismiss the plaintiff's application in relation to item 1.18.

Documents recording the appointment of Elevon Pty Ltd - 1.20

• 146․ The deed appointing Elevon is contained in the plaintiff's documents at Exhibit 6 page 842, and at page 846 is the associated correspondence from Chamberlains Law Firm.
• 147․ Absent any specificity as to further documents which are claimed to be in existence, I dismiss the plaintiff's application in relation to item 1.20.

Documents re share transactions P2 - 2.4 and 2.5

• 148․ As with the various requests for "supporting documents" it is not clear what documents are sought by the plaintiffs in relation to the identified share transactions.
• 149․ There is no evidence before me that any ASIC document in relation to the share transaction remains in the possession of the defendants. Originals of such documents are lodged with ASIC and as such would cease to be in the possession of the defendants if such documents were created.
• 150․ I suspect that what the plaintiffs are really after are documents which explain the rationale behind the share transactions. To narrow the search to accommodate that request would involve the type of forensic choice counselled against in Wornes.
• 151․ I dismiss the plaintiff's application in relation to items 2.4 and 2.5.

• 152․ There is no evidence before me as to whether any firm of solicitors was utilised in the conveyance of the sale of P2 to Millennium Services Group Ltd ('MSG'). As such there is no evidence that the plaintiffs have or have had in their possession the contract for sale or the settlement statement in relation to that sale.
• 153․ There is no evidence before me that any sales campaign in the traditional sense was conducted in relation to the sale of P2. Given the content of the press release from the MSG, I cannot dismiss the reasonable possibility that there was no marketing campaign as such, but rather a sale by private treaty or similar.
• 154․ With Mr Green's findings in relation to the sale of other properties and for which I have referred to at paragraph 108, it would not be unsurprising if this was the case.
• 155․ Neither is there any evidence of a valuation having been completed in relation to the business assets of P2 prior to that sale.
• 156․ I dismiss the plaintiff's application in relation to items 2.6, 2.7 and 2.8.

Documents re authority to lodge ASIC forms for P2 - 2.9

• 157․ This claim for documents is particularised to include the authority to lodge:

(a) Form 484 - change of principal place of business - 16 April 2020.

(b) Form 6010 - application for voluntary deregistration of company - 18 May 2020.

• 158․ By paragraph 13(c) of the Statement of Claim, the plaintiffs plead that D2 was Company Secretary of P2 from 6 November 2015 until 5 June 2020.
• 159․ The filing of ASIC documents is the responsibility of the Company Secretary.
• 160․ There is no evidence before me that any other documentary authority was required for the Company Secretary to lodge those documents.
• 161․ I dismiss the plaintiff's application in relation to item 2.9.

Rental statements for SBFT May 2016 - 30 June 2019

• 162․ The Financial Statements for the SBFT dated 15 May 2019[24].indicates rental income for the following years:

(a) 2019 $52,560.22

(b) 2018 $74,735.76

(c) 2017 $21,937.65

• 163․ In their answer to the plaintiff's request for documents the defendants have enclosed a synopsis for the SBFT noting the requested information as being: All rental property statements, including periodic and annual statements. That information is marked by the defendants as being included with the correspondence.
• 164․ On the basis of the synopsis provided by the defendants I find that it is more probable than not, that the relevant material in relation to the rental records for the SBFT was provided in the previous tranche of surrendered material. I dismiss the plaintiffs claim as it relates to rental records for the SBFT.
• 165․ I dismiss the plaintiffs claim in relation to items 3.3.

Mortgage document - 3.6 and Bearer promissory note - 3.7

• 166․ The synopsis provided to the plaintiffs on 16 March 2021 contains the following entry:[25]

Provide a copy of the Mortgage document and Bearer Promissory Note provided by Chamberlains Law Firm as indicated in their letter to you dated 14 December 2017, regarding Secured Debt Strategy.

• 167․ The original correspondence from Chamberlains Law Firm is included in the exhibit material.[26] That letter covers the following documents:

(a) Statutory declaration in relation to gift;

(b) Bearer Promissory Note;

(c) Resolution by Banic Holdings acknowledging gift...;

(d) Loan agreement (in duplicated) and;

(e) Mortgage document.

• 168․ The letter includes the following instruction:

Please arrange for Svetozar to execute the documents where indicated and return them to us at your earliest convenience.

• 169․ In my view it is reasonable to infer that the original documents were returned to Chamberlains Law Firm. There is no evidence before me that the plaintiffs retained copies of those documents. The affidavit of Mr Martin gives a clear indication that the plaintiffs have considered the possibility that Chamberlains Law Firm are in possession of document, however, the outcome of that inquiry was not put before me.
• 170․ I dismiss the plaintiff's application in relation to items 3.6 and 3.7.

• 171․ Whilst separated, these two items are seeking identical documents. A "minute of determination to make distribution" will by definition record the making of distributions and the identify of beneficiaries.
• 172․ In the response provided to the plaintiffs on 16 March 2021 the synopsis provided to the plaintiffs contains the following entry:[27]

Distribution minutes for each financial year from 2016 to the most recently available date (ideally 30 June 2020)

2016 and 2017 Previously provided folder #4. 2018 included.

• 173․ I dismiss the plaintiff's application in relation to items 3.8 and 3.9.

• 174․ The financial statements for BIT for the year ended 30 June 2016 are included in the plaintiffs' documents,[28] having apparently been provided to them under cover of a letter from the defendant's solicitors 22 March 2021.
• 175․ On pages 7 and 8 of that document it contains the note to the financial statements, which shows the commitment to the joint venture:

• 176․ There is no evidence that the JV continued beyond 30 June 2015. There is no evidence before me as to the accounting practices for a joint venture. I raised this issue with counsel for the plaintiffs during the course of the hearing.
• 177․ In the response provided to the plaintiffs on 16 March 2021 the synopsis provided to the plaintiffs contains the following entries:[29]

Copy of accounting data files and back-ups for the joint venture for the financial years ended 30 June 2015 to the most recently available date (preferably 30 June 2020) if the file exists in the cloud, please provide, at a minimum, read only access to the file.

Copies of all financial statements and income tax returns prepared for the joint venture for the financial years ended 30 June 2015 to the most recently available date (preferably 30 June 2020).

Bank statements for all bank and loan accounts held by the joint venture for the period 1 July 2014 to the most recent date (or closure of the account)

Transfer all original documents held for the joint venture including any joint venture agreements, to Snedden Hall & Gallop Lawyers as soon as possible.

• 178․ There is no evidence before me that these documents exist.
• 179․ I dismiss the plaintiff's application in relation to item 4.1.

• 180․ I dismiss the plaintiff's application dated 21June 2022.
• 181․ I give the parties liberty to apply in relation to any consequential orders.

I certify that the preceding one hundred and eighty one [181] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter

[1] Exhibit 4 - Exhibit 4 - Tab 10 page 115.

[10] See Exhibit 4 - Tabs: 15 - 17, 28 - 39.

[15] The CT has no search attached - see Exhibit 4 para 59 (o).

[16] The CT has no search attached - see Exhibit 4 para 59 (p).

[20] Exhibit 4 - Tab 25 page 179 at note 2.5.