23 I consider most of the other items in the annexure not to be summaries of documents. Thus the item $763,833.16 was for advertising charges from October 2005 to May 2009. It appears from the documents which were sought to be tendered that this is the sum of charges in numerous individual invoices for that period.
24 By way of example, the sum of $763,833.16 appears from other documents to include an amount of $28,162.21, which is the subject of an invoice dated 10 November 2005 from Visiontek to PRN for advertising charges for the month of October in the amount of $25,602.01 plus GST. That, in turn, appears from another document sought to be tendered to be the same as the charge made by Barclays Advertising Agency Pty Limited to Visiontek on 31 October 2005.
25 A summary of the contents of two or more documents to fall within s 50 should, I think, be an abstract or compendium or epitome or a brief statement of the facts or matters set out in the documents.
26 The statement that there were advertising charges of $763,833.16 for that period is rather a calculation of the total sum stated in each of the invoices rather than a brief statement of the contents of the invoices.
27 Likewise the item $44,775.27 described as "Payment in relation to deed settlement" is not a summary of the documents which are sought to be tendered. These include a letter from Mr Ngan the administrator under a deed of company arrangement which the company entered into on 14 December 2005. He wrote to Visiontek requesting payment of the sum $44,775.27 and said that these were funds required to set aside the deed of company arrangement. He provided a breakdown of the figure between the administrator's fees, expenses, deed expenses, and dividend expenses to be paid to unsecured creditors. The statement in annexure F does not seek to summarise the contents of the correspondence, but rather is a statement that $44,775.27 was paid.
28 I do not propose to go through each of the items, but I think the same comment can be made in relation to at least a majority of them.
29 If, contrary to the view I formed about subs 50(1), I had been of the view that the annexure is a summary of the contents of voluminous and complex documents, then the question would still have arisen under paragraph 50(2)(b) as to whether the defendants had a reasonable opportunity to examine or copy the documents in question. That issue is closely aligned with the question whether the plaintiffs should in any event have leave to tender the documents. I will deal with both of those questions together.
30 These proceedings were commenced on 7 July 2009. On 13 July 2009, the Chief Judge in Equity made orders by consent, which included orders that the plaintiffs file and serve any further evidence by 14 July 2009. On that day, her Honour set the proceedings down for hearing today. Mr Lee's affidavit was sworn on 14 July 2009 and I assume served on that day. On 17 July 2009, as I have said, the defendants served the Notice to Produce and documents in question, save for one, became available for the defendants' inspection on 31 July. The exception is a compact disk which I am told contains emails and statements provided by the carriers to Visiontek. The defendants retained a Mr Cravero, an accountant, to prepare a report on the alleged level of indebtedness of PRM's Visiontek.
31 Mr Cravero prepared a report dated 5 August 2009. It appears that his report is substantially based on documents provided to him by the defendants. He deposed that the documents produced by the plaintiffs were provided to him on 31 July and he had not had sufficient time to go through all the materials produced.
32 He deposed that he had not been provided with what he called certain important source records "that are in the possession or under the control of Visiontek and which would have assisted me in my review of the PRM accounts including: a) copies of the carrier revenue statements which show the actual traffic generated for PRM's short codes and upon which recipient created tax invoices are based. RCTIs are the invoices created by Visiontek on behalf of PRM and forms the basis of payment to PRM."
33 It would appear that those carrier revenue statements are contained on the compact disk to which neither the defendants nor Mr Cravero have had access.
34 He also identified five other classes of documents which he had said he had not been provided with, which he believed would be in the possession of Visiontek.
35 I do not consider that the defendants have had a reasonable opportunity to examine the documents which are now sought to be tendered to support the schedule annexure F. On that ground also I would refuse to make a direction under s 50.
36 For these reasons I maintain my ruling that annexure F to Mr Lee's affidavit is inadmissible. The question remains whether or not the documents themselves should now be admitted into evidence. It is accepted that if the documents are permitted into evidence that Mr Cravero's affidavit sworn 5 August 2009 and his report of that date should also be admitted. That is so notwithstanding that on the morning of 5 August I refused the defendant leave to adduce further expert evidence, observing that any application for leave to adduce that evidence should have been made promptly.
37 The question seems to me to be whether the defendants have been prejudiced by the fact that the documents now sought to be tendered were not served on 14 July as they should have been in accordance with the earlier timetable. I have no reason to doubt that the documents are relevant and, although I have not heard detailed argument in relation to them, it would appear to me that prima facie they are admissible. Nonetheless, where a party has not complied with the order of service of evidence-in-chief, that party will often be precluded from relying upon evidence which is served late if the opposite party would thereby be prejudiced.
38 It was submitted for the plaintiff that there was no relevant prejudice. As I understand it, that submission is primarily based on four matters. First, it can be said that the defendants should know themselves and from their own records the truth of the matter as to what debt, if any, PRM owes Visiontek. Secondly, on 28 April 2009 Visiontek forwarded to the defendants a summary of what was described as the estimated debt position as at 31 March 2009. It was in a similar format to annexure F to Mr Lee's affidavit but contained a supporting schedule summarising monthly invoices. Thirdly, it was pointed out that counsel for the defendants has provided an outline of submissions in which particular items were challenged and reasons for the challenge were given. Fourthly, he said that the main prejudice would be cured by the defendants being able to rely on Mr Cravero's affidavit.
39 The difficulty with the first and second contentions is that, in this case, it appears that to a large extent PRM is dependent upon the information provided to it by Visiontek to ascertain its debt position with Visiontek. Thus, the source of PRM's revenue is, it seems to a large extent, derived from revenue which Visiontek receives from carriers, which is then divided, or would, but for the finance arrangements, be divided between Visiontek and PRM.
40 Pursuant to the agreement for company management made on 23 December 2005, Visiontek was to adjust net PRM revenues received from carriers against outstanding loan amounts advanced by it to PRM and against payments which it made directly to suppliers and other agents on behalf of PRM. Thus Visiontek is the primary source of information as to the amounts of revenues received from carriers and as to the payments made to suppliers and other agencies which are said to be payments on behalf of PRM.
41 It is true that the defendants' counsel has identified a number of items from the schedule which are said to be disputed and given reasons for such disputes. For example, it is submitted that some parts of the debt were discharged by operation of the deed of company arrangement. It is submitted that some parts of the debt includes amounts for GST which, it is said, cannot be passed on to PRM. It is said that some claims, for example for management fees, have not been accurately calculated. But the fact that the defendants are able to raise some challenges to the asserted debt does not mean that they are not prejudiced by the late provision of the documents. Nor does Mr Cravero's report and affidavit remove such prejudice. His report appears to be substantially based upon the documents of PRM, but he says that he does not have important source records which would be needed to complete the review, including the copies of the carrier revenue statements and documents relevant to the question of whether third party expenses paid by Visiontek and claimed to have been paid on behalf of PRM were made for PRM's benefit.
42 The proceedings have been expedited because the validity of the plaintiffs' appointment as administrators is an urgent issue. The Corporations Act lays down a stringent timetable for the calling of meetings of creditors and for the making of decisions under Pt 5.3A .
43 Had the documents now sought to have been tendered been served, as I think they should have been, with Mr Lee's affidavit, then there should have been sufficient time for the defendants both to analyse the documents and to seek the production of any further documents which they might have been entitled to seek from Visiontek. As it is, they are deprived of that opportunity and I think that they would be prejudiced by the late tender of the voluminous documentation.
44 For these reasons I reject the tender.