J T Interior Pty Ltd v Ozzy States Pty Ltd

Judgment

1. HIS HONOUR: On 31 August 2018, I published reasons for judgment in this matter dealing with an application by the defendant to set aside an examination order upon the basis, generally speaking, that it was framed in unacceptably wide terms and did not demonstrate the existence of a legitimate forensic purpose: see J T Interior Pty Ltd v Ozzy States Pty Ltd [2018] NSWSC 1336. I declined to set the order aside but instead indicated that it was, in my opinion, capable of being amended so as properly to describe the documents to which the plaintiff genuinely sought access and thereby simultaneously to alleviate the defendant's concerns. I directed that the parties bring in orders that gave effect to the concerns that had been raised. That occurred on 1 February 2019.
2. The parties were, however, unable to agree upon who should pay the costs of the application. These reasons deal with that issue.
3. It is clear that the defendant was unsuccessful in its attempt to have the order wholly set aside. By the same token, the orders as framed by the plaintiff contained infelicities that caused, or that had the potential to cause, confusion and uncertainty. The result of my decision was to provoke the parties to agree upon orders that varied the Examination Order dated 18 December 2017 so that the identified problems were eliminated. The relevant order that was framed after agreement between the parties now reads as follows: "1. Paragraph 2 of the Examination Order dated 18 December 2017 be varied so that it reads as follows: The Company must produce to the Court, the following: (a) all Documents comprising profit and loss statements for the Period; (b) all Documents evidencing any advance of funds and/or loans to or from the Company (that are not otherwise payments for services or contracted works undertaken by or for the Company) that exist or have existed during the Period including any relevant loan documents and loan balance sheets; (c) all tax returns of the Company for the Period; (d) all Documents evidencing any liability owed by the Company (whether beneficially or otherwise) to any third party for the Period including but not limited to contractors, employees and other third parties; (e) all Documents evidencing any trust, superannuation fund or joint venture in which the Company (in any capacity) is involved (whether beneficially or otherwise) for the Period; (f) all Documents evidencing any assets held (including any partial or whole interests) by the Company (whether beneficially or otherwise) for the Period; (g) all Documents evidencing forecasts of revenue for current or future projects undertaken by the company. Where: Company means Ozzy States Pty Limited, the defendant. Documents includes any record of information, and includes: (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph. Period means the period from 1 July 2017 to date."