Power v Ekstein

CATCHWORDS : PRACTICE AND PROCEDURE - application for further discovery - no question of principle - PRACTICE AND PROCEDURE - application for interim accounts under rule 46.2 of Uniform Civil Procedure Rules - preliminary question whether applicant precluded from seeking an account to be decided on final hearing

LEGISLATION CITED : Corporations Act 2001 (Cth) Civil Procedure Act 2005 (NSW)

Power v Ekstein [2009] NSWSC 130 CASES CITED : Power v Ekstein [2010] NSWSC 137 Power v Ekstein [2000] NSWSC 905 Ross v Blakes Motors Ltd [1951] 2 All ER 689

Kaaren Jarmila Power v Paul George Ekstein & Ors Plaintiff: Kaaren Jarmila Power 1st Defendant: Paul George Ekstein 2nd Defendant: Elysee Pty Ltd 3rd Defendant: Boucher & Muir (Holdings) Pty Ltd PARTIES : 4th Defendant: Boucher & Muir Pty Ltd 5th Defendant: H P Holdings Pty Ltd 6th Defendant: Newton & Co Pty Ltd 7th Defendant: Paul Ward-Harvey 8th Defendant: Sydney George Frish (dec'd) 9th Defendant: David Victor Frish 10th Defendant: D F Holdings Pty Ltd

Plaintiff: B W Rayment QC with D A Smallbone 1st & 2nd Defendants: S Burchett COUNSEL : 3rd-6th Defendants: M W Sneddon 7th Defendant: n/a 8th-11th Defendants: J M Ireland QC with J F Burn

Plaintiff: Holman Webb Solicitors SOLICITORS : 1st-6th Defendants: Horowitz & Bilinsky 7th Defendant: n/a 8th-11th Defendants: D C Balog & Associates

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2004/181906 Kaaren Jarmila Power v Paul George Ekstein & Ors JUDGMENT 1 HIS HONOUR: The plaintiff seeks an interim order pursuant to r 46.2(1)(a) of the Uniform Civil Procedure Rules requiring the first defendant (Mr Ekstein) to provide an account in respect of all his dealings and transactions with respect to the Otto Ekstein Family Trust. She also seeks orders that Mr Ekstein deliver up all of the records of the trust to the court and that she have access to them. She also seeks wide-ranging orders for further discovery. She also seeks further and better discovery in respect of categories of documents ordered to be discovered by Registrar Walton on 3 July 2006. 2 These complex proceedings are described in my judgment in Power v Ekstein [2009] NSWSC 130 and in a judgment of Austin J of 3 March 2010 (Power v Ekstein [2010] NSWSC 137). I gave the plaintiff leave to amend her statement of claim. Austin J gave the plaintiff leave pursuant to s 237 of the Corporations Act 2001 (Cth) to bring proceedings on behalf of the second, third, fourth, fifth and sixth defendants against Mr Ekstein. The nature of the proceedings sufficiently appears from those judgments. 3 The present application is brought pursuant to an amended notice of motion filed as long ago as 19 April 2007 as well as an interlocutory process filed on 31 March 2010. It appears that the reason the notice of motion seeking an interim account and other orders was not earlier dealt with is that on 2 October 2007 McLaughlin AsJ ordered that the proceedings be dismissed for want of prosecution. On 9 July 2008 Nicholas J allowed an appeal from that order. On 26 February 2009 the Court of Appeal dismissed an application by Mr Ekstein for leave to appeal from the orders of Nicholas J. It may be that the amended notice of motion of 19 April 2007 was overlooked, or was temporarily overtaken by events. 4 On 11 March 2009, when I granted the plaintiff leave to amend her statement of claim including by the joinder of the seventh to eleventh defendants, I also directed a timetable to progress the matter. The timetable required the parties to exchange proposed additional categories of documents for discovery. There were substantial delays in complying with that timetable and with the progress of the matter generally. At least some of those delays were due to the contested application heard by Austin J. 5 The plaintiff has delivered her proposal for additional categories of discovery in respect of each defendant. Agreement has been reached as to the discovery to be given by the seventh to eleventh defendants. The plaintiff seeks orders that Mr Ekstein give discovery of a further 137 categories of documents, that the second defendant (Elysee Pty Ltd) give discovery of a further 18 categories of documents, that the third defendant (Boucher & Muir (Holdings) Pty Ltd) give discovery of a further 23 categories of documents, that the fourth defendant (Boucher & Muir Pty Ltd) give discovery of a further 39 categories of documents, that the fifth defendant (HP Holdings Pty Ltd) give discovery of a further 28 categories of documents and that the sixth defendant (Newton & Co Pty Ltd) give discovery of a further 28 categories of documents. 6 Some of the categories of documents of which the plaintiff seeks discovery or further discovery overlap with categories of documents of which she sought discovery in 2005. On 3 July 2006 Registrar Walton made orders that the first to sixth defendants give discovery in respect of some of the categories of documents then sought by the plaintiff. But the discovery ordered was limited. No application was then made to review the Registrar's decision. The first to sixth defendants contend that the plaintiff is not now entitled to discovery which the Registrar refused. Application for interim accounts 7 Rule 46.2 of the Uniform Civil Procedure Rules provides: " 46.2 Account: summary order

(1) If a party claims an account or makes a claim which involves taking an account, the court may, on application by that party at any stage of the proceedings: (a) order that an account be taken, and (b) order that any amount certified on taking the account to be due to any party be paid to him or her. (2) The court may not make an order under subrule (1) (a): (a) against a defendant who has not filed an appearance, unless he or she is in default of appearance, or (b) if it appears that there is some preliminary question to be determined. " 8 By her notice of motion of 19 April 2007 the plaintiff seeks the following orders, amongst others: " 1. An Order pursuant to UCPR r. 46.2(1)(a) that an account be taken of all moneys received and disbursed by the first defendant or any other person on his behalf in respect of the property comprised in the Otto Ekstein Family Trust and of the dealings and transactions of the first defendant therewith. 2. An Order that the said accounting be taken in common form without prejudice to the plaintiff's right (if any) to seek a further accounting on the basis of wilful default. 3. A direction that the first defendant on or before a date 28 days after the making of these orders, do file and serve on the plaintiff his detailed Account, verified by his affidavit, of all moneys received and disbursed by the defendant or any other person on his behalf in respect of the property comprised in the Otto Ekstein Family Trust and of the dealings and transactions of the first defendant therewith. 4. A direction that such Account shall specify, in respect of each payment or receipt, the date and amount thereof, to whom the payment was made and the purpose or account, for or to which the amount was paid or received as the case may be. 5. A direction that the first defendant, on or before a date 28 days after the making of these orders, do file and serve upon the plaintiff his detailed Statement, verified by his affidavit, specifying: (a) what he claims to be the property of the Otto Ekstein Family Trust, the present ownership and whereabouts of each such item of property and, if such property has been lost or misappropriated, when and by whom and under what circumstances; and (b) what he claims was the property of the Otto Ekstein Family Trust, at the date or dates that he put into effect the scheme which he claims to have prepared and implemented pursuant to clause 25 of the Otto Ekstein Family Trust Deed dated 1 April, 1975 as amended by Deeds dated 21 February, 1977, 25 February, 1982 and 13 January, 1986 and pursuant to the wishes of the late Otto Ekstein in regard to the affairs and management of the said Trust as evidenced by the last Will and Testament of the said Otto Ekstein, and what he claims was the then present ownership and whereabouts of each such item of property and, if such property had been lost or misappropriated, when and by whom and under what circumstances; and (c) to whom, if anyone, he claims to have paid or transferred each such item of property pursuant to the said scheme. 6. A direction that the items of such Account and Statement be numbered consecutively. " 9 The plaintiff does not at this stage seek orders providing for Mr Ekstein to be examined on his account, or that she serve surcharges, falsifications or objections to the account. Counsel for the plaintiff submitted that it was Mr Ekstein's duty as trustee to keep accounts and produce them when called on to do so. Counsel submitted that the plaintiff has been seeking accounts for years and that despite professions of his intention to provide accounts, Mr Ekstein has failed and refused to do so. Counsel submitted that until proper accounts were provided the plaintiff would not be able to identify all of the respects in which she might wish to challenge Mr Ekstein's performance of his obligations as trustee, nor be able to identify all available challenges to the scheme for distribution of assets of the trust and of the estate of the late Otto Ekstein. It was therefore necessary in order for the real issues in these proceedings to be determined that accounts be ordered. The rule provides that such an account can be ordered at any time. 10 The difficulty with this submission is that Mr Ekstein denies that the plaintiff is entitled to an account. The assets of the trust were distributed in July 2003. Mr Ekstein submits that the plaintiff is estopped or barred by laches and acquiescence from requiring him to account as a former trustee for his dealings with trust property. That defence has not been determined. 11 Mr Ekstein also submits that to require him to prepare accounts would cause him substantial hardship. His solicitor, Mr Bilinsky, deposes on information and belief that Mr Ekstein inquired of a firm of accountants in 2007 what would be the cost of preparing accounts for the trust and was advised that the estimated cost of preparing accounts from 1 March 2001 to 30 June 2003 would be $17,600. Mr Bilinsky deposed that Mr Ekstein believed that to prepare accounts for the trust back to 1992 might cost in excess of $40,000. Mr Ekstein says that the trust has been wound up and there are no moneys in the trust. 12 In the 1998 proceedings determined by Windeyer J in 2000, the plaintiff sought an order that an account be taken of Mr Ekstein's dealings and transactions as trustee of the Otto Ekstein Family Trust. It does not appear that that claim was the subject of the hearing before Windeyer J pursuant to which his Honour gave judgment on 14 September 2000 (Power v Ekstein [2000] NSWSC 905). The substantive issue that his Honour there decided was that the trustee is bound by clause 25 of the trust deed to give effect so far as is possible to the wishes of Otto Ekstein in regard to the affairs and management of the trust as evidenced by Otto Ekstein's last will. Formal orders were made on 4 October 2000. His Honour heard argument on that day as to what orders should be made. It appears from the transcript that Mr Smallbone who then, as now, appeared for the plaintiff had sought an order for account. The transcript records the following: " HIS HONOUR: Not one word was said to me in argument about an account, ever. I can tell you that because I was trying to work out what the orders were. I mean, all sorts of claims were made in the statement of claim but nothing was ever said about an account, it was never argued. SMALLBONE: Nevertheless, we would - HIS HONOUR: It would be a great mistake, in my view, to make an order for an account at this stage - an account is extraordinarily expensive. That assumes it will go off to a Master for the taking of account. That ought to be unnecessary, one assumes - Mr Armstrong [scil. Ekstein] can account. SMALLBONE: My fallback position would be that I would seek to reserve that issue. " 13 The following exchange occurred between Windeyer J and Mr Burchett of counsel who then, as now, appeared for Mr Ekstein: " HIS HONOUR: I accept that there is no basis for an order that accounts be taken at this stage. However, it is admitted that he has not dealt with it in accordance with the trust. They would be entitled to accounts of the trust from the date of death of the deceased, or from the date your client became the trustee. He had better get ready to deliver them. Is there any reason why I should not make an order that he provide accounts? BURCHETT: Mr Ekstein is a solicitor of the Court. HIS HONOUR: Does he consent to providing accounts or not, is he here? BURCHETT: No, he is not. HIS HONOUR: Does he consent - if not I will make an order. BURCHETT: It fell from your Honour on the occasion of delivery of judgment that he had and, indeed, all people had acted entirely properly in the matter. He acted quite properly in taking the view that clause 25 - HIS HONOUR: If there has been some breach of trust, presumably, it can be just balanced out. I do not see there is going to be any problem about it. He may be entitled to relief under section 75. What I see some problem with is why there should be any resistance to his providing accounts. All he has to do is to show the income and the balance sheet. Somebody has been doing the accounts for the trust. They are in the books. BURCHETT: There is no real problem but it is not appropriate that the trustee, he having taken a wholly proper view about it, which was found to be mistaken, that he should have any more compulsory orders placed upon him. HIS HONOUR: All trustees have to provide accounts on request of a beneficiary. That is a fundamental principle of trust law. Why should not an order be made that he do it? BURCHETT: Because an order implies something and when you are talking about a solicitor of the Court, the fact that an order is being made in those circumstances is inappropriate. He will act according to the declaration of the Court and to what his obligations are. There is no need for him to be the subject of mandatory relief. It can lead to all sorts of unforeseen consequences. This is all that the plaintiff's representative suggested to the Court at the hearing that they were after. HIS HONOUR: I accept that. I think I did say in a judgment that it might be necessary to make some consequential orders. " 14 His Honour made later observations that Mr Ekstein would be required to provide accounts. The orders made on 4 October 2000 include as order 4 "Reserve leave to the plaintiff to apply for an order for accounts in respect of the Trust". 15 Mr Ekstein pleads that despite the reservation in the orders of 4 October 2000 that the plaintiff have leave to apply for an order for accounts in respect of the trust, the plaintiff failed to exercise that leave or to apply for accounts until she commenced these proceedings in December 2004. Mr Ekstein pleads that he prepared and provided the plaintiff with accounts of his dealings with the trust property and that they were considered by accountants on her behalf over three days in about May 2001. He pleads that the plaintiff did not raise any objection to those accounts or make any claim that they did not reflect a true and fair view of his dealings with the trust. 16 Both parties tendered a copy of a letter written by a Mr Dalton to the plaintiff dated 7 May 2001. It seems that Mr Dalton was a chartered accountant. He wrote: " I have reviewed the financial statements of Otto Ekstein Family Trust and Elysee Pty Ltd for the years ended 1992 though [sic] 2000. Attached are reports on each of the two entities.

I have not reviewed books of account e.g. ledgers and journals as they were not produced for our inspection. The accountants, Stanning & Associates, advised that they 'took over' from the previous Accountants [sic] Selingers only two years ago and old ledgers and journals may be difficult to find. However, this may not be important unless there are items in the attached report that you would like to investigate further.

Other entities involved in the overall Estate, namely Boucher & Muir Pty Ltd, Ekstein & Frish Partnership, HP Holdings Pty Ltd, Newton & Company Pty Ltd and Estate Otto Ekstein have not as yet been reviewed. " 17 Mr Dalton then provided a summary of the information from the financial statements of the trust and of Elysee Pty Ltd he had reviewed. 18 The plaintiff's counsel said that the plaintiff was not provided with copies of the documents reviewed by Mr Dalton and stressed that Mr Dalton was not provided with accounts other than the financial statements. 19 The orders of 4 October 2000 required Mr Ekstein to prepare a scheme to give effect, so far as was possible, to the wishes of Otto Ekstein, deceased, in regard to the affairs and management of the trust as evidenced by his last will and testament, to give notice of the scheme to the plaintiff, and not to make any partition or distribution of the trust assets within 28 days of the giving of such notice. Mr Ekstein pleads that by at least 18 March 2003 the plaintiff was duly given notice of the scheme proposed by him and prepared in consultation with Mr Ward-Harvey. He pleads that the scheme was implemented on 30 June 2003 as proposed and confirmed by a letter from his solicitor to the plaintiff's solicitor dated 7 July 2003. He pleads that the plaintiff took the benefit of the partition of the trust and the distribution of the assets of the trust and of the estate in July 2003 and did not move the court to raise any objection to the scheme. He pleads that in reliance on her conduct and her acceptance of the scheme of distribution he partitioned the trust and distributed the trust assets in accordance with the scheme and by deed poll on 21 January 2004 dissolved the trust pursuant to which he held the remaining assets. 20 The plaintiff pleads that the information to which her accountant was given access in May 2001 was not an accounting of Mr Ekstein's dealing with the trust property, was incomplete and inadequate and did not extend to the provision of copies of the financial statements that could be taken away. She pleads that she renewed her request for access to the information or to better information and her requests were refused. The plaintiff pleads that after the orders of Windeyer J, by a long course of correspondence from her solicitors, she sought proper information concerning the various schemes proposed from time to time concerning the assets, liabilities and accounts of both the trust and of the estate, but did not receive, and has still not received, the information she sought, nor any accounts of the trust, nor any proper and fair disclosure of the affairs of the estate or the trust. 21 The plaintiff tendered a letter dated 30 July 2003 from her solicitor to Mr Ekstein's solicitor objecting to the scheme. In that correspondence the plaintiff's solicitor stated that the plaintiff proposed to deal with the assets enclosed with Mr Bilinksy's letter of 7 July 2003 within seven days on the basis that the transfer of the assets to her was only part of the assets to which she was entitled and was not to be taken as an acceptance of any proposal or offer to her. In that letter the plaintiff's solicitor advised that the plaintiff intended to commence proceedings for appropriate orders, including orders for the taking of accounts in respect of the trust and for an order that the trust be administered by the court. No such proceedings were taken until December 2004. 22 The court may not make an order for the taking of an account pursuant to r 46.2(1)(a) of the Uniform Civil Procedure Rules if it appears that there is some preliminary question to be determined (r 46(2)(b)). In this case the preliminary question is whether the plaintiff is precluded from seeking an order for an account. That question cannot be decided on the present application. It is one of the issues for final hearing. 23 Counsel for the plaintiff submitted that as the rule provides that an order for an account can be made at any stage of the proceedings the court should be astute not to allow the utility of the rule to be circumvented by the raising of issues which are not "genuinely viable". Counsel submitted that the defence of laches and acquiescence was defective because no relevant prejudice was identified. When the whole of the defence is taken into account I do not think this is correct. Mr Ekstein complains of prejudice from the plaintiff's alleged failure to object to the scheme for distribution of assets before the scheme was implemented, and from the fact that assets were distributed and the trust brought to an end. It is not possible on the present application to assess the strength of the defence. I see no reason to think that the defence is not "genuine" in the sense that it is brought forward honestly in the belief that it has merits. The investigation of those merits will involve a consideration of what passed between the parties between October 2000 and December 2004. 24 Counsel for the plaintiff also submitted that the order could be made pursuant to the power conferred by s 61 of the Civil Procedure Act 2005 (NSW) for the court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, including by directing a party to take specified steps in relation to the proceedings. I do not consider that that power supports the orders sought. Whether the defendant should be ordered to account is one of the "real issues between the parties to the proceedings". The court's power to give directions for the speedy determination of the real issues under s 61 does not extend to making an order which would determine that issue without a hearing on the merits. I accept that if the order were made, it would be likely to assist the speedy determination of other issues in the proceedings. But that does not justify my granting the relief sought without there being a determination of the defences. 25 For these reasons I refuse the relief sought in paras 1-6 of the amended notice of motion filed on 19 April 2007. Production of trust documents 26 A further order sought in the amended notice of motion of 17 April 2007 was that all of the books and records of the trust be brought into court and kept in the control of the court. Mr Rayment QC, who appeared with Mr Smallbone for the plaintiff, proposed that Mr Ekstein deliver up the trust records to the court for the purpose of being photocopied by the plaintiff and then returned, without Mr Ekstein's being required to prepare a list of such documents. 27 In final submissions, Mr Burchett, who appeared for Mr Ekstein, advised that Mr Ekstein was prepared to have the books and records of the trust remaining in his or his agent's hands put into the possession of the court for the purposes of copying by the plaintiff and thereafter to be returned to Mr Ekstein. Counsel accepted that the expression "books and records of the trust" would include primary and secondary records of account including ledgers and journals. 28 As Mr Ekstein agrees to the proposal, I will make a direction accordingly. In the course of argument I suggested that it would be more sensible for Mr Ekstein to supply a copy of such trust records to the plaintiff's solicitor on the plaintiff's solicitor's undertaking to pay the reasonable costs of photocopying. I still think that is the preferable course. Whichever course is adopted, the solicitors for the parties should ensure that there can be no later dispute about what documents are produced. To the extent that Mr Ekstein produces such trust records, he will not be required to prepare a list of documents to give the further discovery I will order. Nor will it be necessary for the defendants to list again a document which has already been discovered and included in an earlier list of documents. Further discovery 29 On 12 July 2005 the plaintiff's legal representatives served lists of categories of documents which they proposed be discovered by the first to sixth defendants. The documents sought included all documents setting out or relating to the income from the properties at Milson Road and Samora Avenue, Cremorne, and at Highbridge Road, Killara, or relating to the value of those properties, all books of account of the trust, all income tax returns and assessments of the trust from 13 May 1992, all bank statements, cheque butts, bank deposit books relating to any account of the trust from 13 May 1992, and all financial statements of the second to sixth defendants from 13 May 1992. Only limited orders for discovery were made by Registrar Walton on 3 July 2006. 30 The learned Registrar refused to make orders for discovery of financial statements or tax returns before 1999. She ordered limited discovery of documents relating to the income or value of the properties the subject of the distribution schedule as well as financial statements and tax returns from and including 1999. The learned Registrar took the view that there should be no discovery on "accounting issues" before an order for account was made. For this reason she refused to order discovery of books of account of the trust, income tax returns and assessments of the trust, bank statements, cheque butts and bank deposit books for the trust, or documents referring to any income received by Mr Ekstein from the trust from 13 May 1992 including dividends, distributions or fees as trustee. 31 The learned Registrar also refused to order discovery of documents relating to moneys paid by any of the defendants to the trust from 13 May 1992, or relating to any liability disclosed in any financial statement of the trust, or relating to the acquisition and sale of any asset of the trust or relating to the trust's assets, liabilities income and expenses from 13 May 1992 on the ground that these documents were "more relevant to the accounting issue". 32 In refusing to order discovery of financial statements prior to 1999, the learned Registrar accepted the defendant's submission that such documents had previously been provided to the plaintiff and only an update was required. The plaintiff accepted that in the 1998 proceedings she had been provided with copies of financial statements for the trust (but not financial statements for any of the companies) from 1992 to 1998, but excluding financial statements for 1993. 33 It is encouraging that Mr Ekstein now agrees to produce all the books and records of the trust for the plaintiff's inspection. Had that approach been taken in 2005 much delay would have been avoided. 34 The learned Registrar found that she would not "in general" be inclined to allow discovery in respect of categories of documents clearly going to allegations that Mr Ekstein breached his duties as a director of the second to sixth defendants as the plaintiff needed leave to proceed. Because the categories were not formulated by reference to issues, it is not clear to what extent this conclusion influenced the Registrar's decision to refuse discovery of documents relating to the second to sixth defendants. This is of some significance because the plaintiff has now been given leave to advance claims she says the second to sixth defendants have against Mr Ekstein. 35 In my view the approach to discovery adopted by the Registrar was too narrow. The fact that it has not been determined whether Mr Ekstein is liable to provide an account is not a reason for refusing to order discovery of documents relevant to issues of accounting if those documents are relevant and of likely utility to the resolution of issues in the proceedings. In this case the facts as to how the trust was administered and the facts as to the basis upon which the scheme was prepared and the values of the assets to be distributed pursuant to the scheme were arrived at, are within the knowledge of Mr Ekstein and not the plaintiff. At least in cases where there is a fiduciary relationship between the parties and where the plaintiff is alleging some fraud or breach of duty, the plaintiff is usually entitled to discovery before being required to give full particulars of the complaint where the defendant knows the facts and the plaintiff does not (Ross v Blakes Motors Ltd [1951] 2 All ER 689 at 693). 36 Where, as in this case, a plaintiff who does not know the facts obtains documents in dribs and drabs from limited orders for discovery, or on subpoena, the documents provided will raise further questions which will promote further discovery requests and amendments. 37 I think it is clear that the limited discovery with which the plaintiff has been provided is inadequate for the proper trial of the proceedings. This is illustrated by the following. On 29 June 2001 Mr Ward-Harvey sent to the plaintiff's solicitors a summary of assets and liabilities of the estate as at 31 May 2001. This showed that the estate had assets to the value of approximately $4.265 million not including the value of the deceased's shares in the second to sixth defendants. Included as an estate asset was a debt due to the estate by the Otto Ekstein Family Trust of three amounts said to be disclosed in the "Trust Accounts at 30/6/2000" namely, $389,059.53, $23,089 and $2,776. The plaintiff has been given discovery of a balance sheet for the trust as at 30 June 2000 which states that the trust had liabilities consisting of loans at call totalling $664,313.29, without further particulars. 38 It appears both from Mr Ward-Harvey's summary of assets and liabilities of the estate and from Mr Dalton's report that there are other financial statements of the trust which have not been discovered which show the makeup of the amount of current liabilities as at 30 June 2000 of $664,313.29. Moreover Mr Dalton's summary of the balance sheet of the trust reviewed by him records an additional liability of the trust to Otto Ekstein of $100,000 described as "Contra to Trust". 39 The balance sheet of the trust as at 30 June 2000 recorded total assets of $1,029,245.04 and total liabilities of $664,313.29. The trust tax return for the year ended 30 June 2001 recorded total assets of $905,097 and total liabilities of $540,165. There is no break-up of these figures. The tax return for the year ended 30 June 2002 did not include any statement of total assets and liabilities, but the 30 June 2003 balance sheet stated comparable figures for 2002. According to that balance sheet, as at 30 June 2002 the trust had total assets of $902,221 including $657,619 representing land and buildings at cost and current assets consisting of cash and debts of $225,281. Liabilities were stated to be $537,289. 40 The balance sheet as at 30 June 2003 stated that the trust had total assets of $312,915 (including total current assets of $96,684) and liabilities of $312,905. Included in the assets was land and buildings at cost which had decreased from $657,619 in 2002 to $197,451 as at 30 June 2003, presumably reflecting the sale of one or more of the properties. 41 The single-page document describing the scheme for distribution of the assets of the estate and the trust stated as follows: Proposal for Kaaren Retention Proposed for Helen, Paul and his children

A. From Estate A. Estate

John Street $720,000 Balance money in Executors ANZ A/c $80,000 Money in Executors ANZ A/c (less tax and legals) $12,870 Debts due to Estate $864,000 BT (Variable) $536,614 Half Nett interest in Partnership $1,188,015 $513,015 Less $ 675,000 Shares in listed companies $626,035 $1,457,015 Mortgage loans (now repaid and available) $111,000 Less: Liabilities $2,006,519 1. Annuity to cover Sonia for income Approx $40,000 pa $340,000

Cash (from Estate interests in partnership) $675,000 2. Estate estimate Tax and legals $80,000 $420,000

From Trust Trust

Samora Avenue $1,400,000 Elysee (nett value assets backing estimate) $2,601,603 $3,638,618 Kaaren's estimated legal Costs $30,000 Highbridge Road $675,000 Less: Trust liabilities to Unsecured lenders $101,927 $4,211,691 Less payment to Kaaren for costs $30,000 Total $4,111,519 Total $4,181,691

B. Plus ½ private company shares in specie (excluding 5 Elysee shares) B. Plus ½ private company shares in specie (including all Elysee shares)

C. Plus Milson Road C. Plus Milson Road [to be held on clause 9 Will Trust provisions but excluding Kaaren's interest which is compensated for by items in paragraph D hereto]

D. Notional credits for Kaaren Shortfall on John Street rental estimated at $20,000 over term of Lease. Kaaren's debt to the Trust $39,000 Total $59,000 forgiven on above proposal Trust payments made to Kaaren 1992 to date amounting to $70,884.00 E. NOTE that Helen's income entitlement has not yet been paid, and is to be paid out of the retention proposed fund.

42 The scheme for distribution of assets of the estate and the trust provided for the distribution to the plaintiff from the trust of the property at Samora Avenue, Cremorne and payment of a sum of $30,000. The scheme stated that the balance of the estate assets totalling $1,457,015 less liabilities of the estate of $420,000, that is, a net amount of $1,037,015, would be retained by Mr Ekstein and his family. Included in the assets of $1,457,015 were debts due to the estate of $864,000. That sum was shown in the summary of assets and liabilities of the estate prepared by Mr Ward-Harvey and included a debt of $414,924 due to the estate from the trust. The scheme then proposed that certain of the trust assets, namely the shares in Elysee Pty Ltd and the Highbridge Road property, would be retained by Mr Ekstein and his family. Separate provision was made for another trust asset, namely a property at Milson Road, Cremorne. What was not stated in the scheme for distribution was how the balance of the assets of the trust would be applied. The balance sheet for the trust as at 30 June 2002 included cash at bank and loans at call of $224,530. As at 30 June 2003 cash at bank was recorded at $96,684 and there were no recorded loans owed to the trust. 43 The statement of assets of the trust to be retained by Mr Ekstein and his family did not include a separate statement of cash or debts which were trust assets. It is not possible to say from the financial statements of which discovery was given what sum was owed by the trust to the estate as at 30 June 2003. There was no statement of the makeup of the trust's liabilities as at 30 June 2003. They were not brought to account in the document showing the distribution. There may well be nothing untoward about this. There would be a double counting if the assets retained by Mr Ekstein and his family included both the debt owed to the estate by the trust and the assets of the trust which would be used to satisfy the debt, without taking account of the trust's liability to the estate. But without a break-up of the assets of the trust and the liabilities of the trust as at 30 June 2003 it is impossible to say whether the scheme did provide for an equal or approximately equal distribution. 44 The plaintiff submitted that if the trust accounts showed a liability of $100,000 not recognised by the estate as an asset, it is likely that the total pool of assets for distribution has been understated by that sum. I do not accept that that is probable, given that the scheme for distribution of assets left both the debts owed to the estate and the assets and liabilities of the trust (other than the Samora Avenue property) in the hands of Mr Ekstein and his family. But it is simply not possible to say from the financial statements of the trust that have been discovered, and the one-page statement as to how the trust and estate assets were valued and distributed, without any statement of the totality of the trust's assets or any statement of its liabilities, whether there was a sound basis for the scheme. I agree with the plaintiff's submission that insufficient records have been provided to explain the discrepancy apparently raised by the additional debt of $100,000 described as a "liability" owed by the trust to Otto Ekstein "Contra to Trust". 45 Even if, as Mr Ekstein asserts, the plaintiff is precluded from obtaining a proper accounting, that is no reason he should not be required to discover all the documents required to determine whether or not the scheme does give effect to the wishes of Otto Ekstein as recorded in his last will. It can now be seen that the limited discovery ordered by the Registrar is manifestly inadequate for that purpose. 46 The Registrar ordered discovery of "All documents setting out or relating to any distribution of assets or income of the Otto Ekstein Family Trust as and from 13 May 1992". Because the Registrar refused to order discovery of financial statements or income tax returns from 13 May 1992 Mr Ekstein gave discovery of single pages from the tax returns stating how trust income was distributed. In amendments to the statement of claim following discovery, the plaintiff alleges that over the period from 1992 to 2003 there were distributions totalling $395,950 over the period of which the reported distributions to the plaintiff were only $82,820. The plaintiff alleges that she did not in fact receive the amounts which according to the trust tax returns were distributed to her and alleges that in any event in accordance with the declarations made by Windeyer J in the 1998 proceedings and the wishes expressed by Otto Ekstein in his will, she was entitled to 50 per cent of the distributions. Mr Ekstein denies that the distributions disclosed in the trust tax returns were as pleaded by the plaintiff. I was taken to an example of that by Mr Burchett who appeared for Mr Ekstein. The reason, as explained by counsel, that Mr Ekstein contends the plaintiff's statement of distributions is wrong is that for the years 1992-1994 the plaintiff alleges that no trust income was distributed to Mischa Ekstein, whereas the discovered documents state that the balance of the trust income for the 1992, 1993 and 1994 financial years was distributed to Mischa Ekstein. 47 What this submission demonstrates is that the defendant did not give proper discovery in accordance with the Registrar's orders. To comply with the order showing what income was distributed, it would be necessary for the defendant to discover the tax return that showed what was the whole of the trust income for the year so that the "balance" said to have been distributed to Mischa Ekstein could be calculated. Whatever that balance was, assuming it to be more than nil, it will increase the size of the plaintiff's claim. Even under the existing discovery orders she is entitled to that information. 48 However, the plaintiff goes further. The defence alleges that the distributions to the plaintiff were made by being applied in reduction of a debt the plaintiff owed to the trust, which as at 1992 was $108,843.70. The plaintiff is entitled to the trust records that refer to such a debt and its reduction. 49 Mr Bilinsky deposed that the plaintiff's debt was also reduced by her receipt of director's fees from Elysee in 1995, 1996 and 1997. The scheme for distribution of trust and estate assets took into account a debt said to be owed by the plaintiff to the trust of $39,000. The plaintiff says that there is a discrepancy of over $58,000 between what Mr Ekstein through his solicitor asserts to have been the debt she owed to the estate as at 1992 after reduction for credit of director's fees from Elysee Pty Ltd and the closing balance of $39,000 recorded in the scheme statement and the distributions recorded in the income tax returns. She says that she did not receive the amounts the income tax returns state were distributed to her. Prima facie, the plaintiff's contentions are plausible and will require an answer. The plaintiff's allegation that she has not been paid the income she ought to have been paid in accordance with the declarations made by Windeyer J and the quantification of that claim cannot be determined on the limited discovery that has been given to date. 50 Another example of the inadequacy of the existing discovery concerns the plaintiff's complaint about the distribution of assets set out in the scheme document so far as concerns the valuation of the trust's shares in Elysee Pty Ltd. In the scheme document those shares are valued at $2,601,603 said to be based on net asset backing. Most of the shares in Elysee Pty Ltd were owned by the trust and the estate and under the scheme all of those shares in Elysee Pty Ltd were retained by Mr Ekstein or his family. The plaintiff complains that Mr Ekstein has not explained how the figure of $2,601,603 was arrived at. The financial statements for Elysee Pty Ltd (and the trust) were prepared on an historical cost basis. I accept that on the material discovered, and in the absence of any account from the defendant, it is not possible for there to be a fair trial of the issue concerning the fairness of the figure of $2,601,603. The plaintiff argues that it should be inferred that one of the properties owned by Elysee Pty Ltd at Turramurra was brought into the scheme at a value of $414,995, but was sold in the following financial year for $648,889. There is a degree of speculation in the reasoning, but there should be no need for speculation. The plaintiff should have discovery of documents which show the facts. The plaintiff is entitled to discovery of all of the documents relevant to how the scheme was prepared and as to how values were attributed to the assets referred to in the scheme. 51 Another illustration of the inadequacy of the present discovery concerns the financial statements of the fifth and sixth defendants, HP Holdings Pty Ltd and Newton & Co Pty Ltd. The financial statements of Newton & Co Pty Ltd for the year ended 30 June 2005 record a loan made by that company to the estate of $500,000. The plaintiff pleads that no such loan was made, that Mr Ward-Harvey had denied all knowledge of such a loan, that she had sought an explanation from Mr Ekstein about the loan, and that no explanation had been provided. These allegations are admitted. Mr Ekstein pleads that the financial statements were in error. He pleads that Newton & Co Pty Ltd paid $500,000 to Mr Ward-Harvey on behalf of the estate and that the payment was a loan made by Newton & Co Pty Ltd to HP Holdings Pty Ltd to enable HP Holdings Pty Ltd to discharge part of its liability to the partnership between the late Otto Ekstein and the late Sydney Frish and should have been so recorded. The plaintiff makes a similar allegation concerning the financial statements of HP Holdings Pty Ltd for the financial year ended 30 June 2005. She alleges that the financial statements record that HP Holdings Pty Ltd lent $151,234 to the estate in that financial year, whereas that was not the fact. She alleges that she wrote to Mr Ekstein with information that the executor denied all knowledge of the purported loan, asked for an explanation, and none was provided. These allegations are substantially admitted, or not denied. HP Holdings Pty Ltd pleads that its financial statements were inaccurate in that the payment of $151,234 to the estate was not a loan to the estate but was a payment in part-satisfaction of a loan from the partnership of the late Otto Ekstein and the late Sydney Frish to HP Holdings Pty Ltd and was received by the executor as a distribution to the estate from the Frish/Ekstein partnership. 52 Discovery of documents relating to these issues is required in any event because the issues arise from the plaintiff's amendments to her statement of claim. The relevance of these matters for present purposes is that they demonstrate that it is unsafe for the court to assume the accuracy of the financial statements. The financial statements were not audited. 53 The defendants submitted that because no application was made to review the Registrar's decision on discovery, discovery should be limited to those categories of documents ordered by the Registrar, except to the extent that additional documents might be required to be discovered by reason of the plaintiff's amendments to her statement of claim. The defendants submitted that although the Registrar's decision was an interlocutory decision on a matter of practice and procedure, it should not be departed from unless there had been a material change of circumstances. The only material change, so it was submitted, was the amendments to the plaintiff's pleadings. 54 There is force in this submission, but there have been material changes in circumstances since the Registrar's orders that require a fresh approach to discovery. The first is that there have been substantial amendments to the plaintiff's pleadings. Almost all of the additional categories of documents of which discovery is sought are relevant to issues raised by the amendments. The fact that many of them are also relevant to the issues raised on the pleadings before they were amended, and discovery was refused, is not a sufficient ground for refusing an order now. Secondly, leave has now been given for the plaintiff to bring proceedings on behalf of the second to sixth defendants against Mr Ekstein for alleged breaches of his duty as a director. This is a material change of circumstance. It is not possible to say to what extent the absence of such leave influenced the Registrar's decision. Thirdly, the limited nature of the discovery which has been given pursuant to the Registrar's earlier orders has demonstrated that further discovery is required if the proceedings are to be fairly tried. 55 Mr Burchett for Mr Ekstein submitted that it would be oppressive to require Mr Ekstein to give discovery to the extent sought and for the period sought. He submitted that it was self-evidently oppressive to require discovery of documents from the date of the late Otto Ekstein's death in 1992. I do not agree. There was no evidence from Mr Ekstein that the discovery sought would be oppressive. The only evidence on the question was from Mr Bilinksky, Mr Ekstein's solicitor. Mr Bilinsky deposed: " The new List of Categories addressed to the First and Second Defendant [sic] are [sic] an extremely detailed request which includes revisiting matters that have previously been dealt with in the discovery process. I estimate that for the First Defendant to comply with the 127 paragraphs of categories would require searches and inquiries of numerous entities and would take a great deal of time and involve substantial additional expense. " 56 I accept that compliance with the orders for discovery sought by the plaintiff would require Mr Ekstein and his advisors to "revisit matters" that had previously been dealt with in the discovery process and would require searches and perhaps inquiries that would take considerable time and additional expense. However, I bear in mind that Mr Ekstein has not taken any steps to limit the inquiry by proffering an account of the transactions with the trust property. The need to "revisit matters" will substantially be due to what I consider to have been an inappropriately confined approach to the giving of discovery in 2005 and 2006. Nor is it self-evident that it will be onerous for Mr Ekstein to give discovery of documents relating to the affairs of the companies and the trusts dating back to 1992. From at least the time proceedings were instituted in 1998 he was aware that the plaintiff was seeking an account. One should presume that Mr Ekstein maintained the documents which would be required for that purpose even if he did not prepare accounts at the time. There is no reason to assume that such documents have been lost or destroyed. The presumption is to the contrary. Discovery by first defendant 57 I turn then to the categories of documents for which the plaintiff seeks discovery from Mr Ekstein. These run to 137 categories over 18 pages. I will not set them out in full. 58 Category 1 seeks Mr Ekstein's accounts or draft accounts or interim accounts of his administration of the trust. I reject the first defendant's submission that the plaintiff should only have discovery of documents from 1999. It is not oppressive to require that any accounts or draft accounts which have been prepared be discovered. They are clearly relevant. The first defendant should give discovery of any documents falling within category 1 without limitation as to date. 59 The documents in category 2 will be discovered as they are trust records. If, and to the extent that, they are not produced as trust records, they should be discovered. 60 Orders have already been made for the documents in category 3. Those orders have not been fully complied with but should be. 61 The plaintiff is entitled to discovery of the documents in categories 4-8 to the extent they have not already been discovered. Almost all the documents sought would be trust records. To the extent they have not already been discovered and are not produced as trust records, discovery should be given. 62 Categories 9-11, 15 and 16 concern advices that the first defendant might have received in relation to the effect of Otto Ekstein's will and the first defendant's obligations as trustee or the executor. The documents are relevant to Mr Ekstein's claim that any breach of trust should be excused. I express no view as to whether any legal advice would be privileged or whether the existing pleadings would involve a waiver of any privilege which might otherwise attach. If there are documents over which privilege is to be claimed, the claim should be made in the usual way. The possibility of privilege being claimed is not a reason for refusing to make the order for discovery. I will therefore order discovery of the documents sought in these categories. 63 I do not accept that the documents sought in category 12 are irrelevant. Nor would it be oppressive to discover any records of communications between the named persons concerning the subject matters dealt with in category 12. The first defendant raises the termination of the partnership agreement as a reason why effect cannot be given to the deceased's wishes expressed in his will. The circumstances of the termination and any subsequent arrangement between the partners could well be relevant to the first defendant's contention. Discovery should be given of the documents in categories 12 and 13. 64 Mr Ekstein made no objection to categories 14 and 17 other than the lateness with which the request was made. It is surprising that these categories were not directly sought in 2005. However, the categories of documents for which discovery was sought in 2005 would probably have caught at least most documents which would come within categories 14 and 17, although the application then made was unsuccessful. The documents in categories 14 and 17 are highly relevant to the issues in the proceedings and I will make an order for discovery of documents in those categories. 65 Category 18 seeks discovery of correspondence with Mr Ward-Harvey in relation to the plaintiff or in relation to any defendant. That request is too wide. It would require Mr Ekstein to search documents which may have no relevance to any issue in the proceedings. I reject category 18. 66 Category 19 is relevant and will be expanded to include correspondence with the seventh defendant. Discovery should be given of documents within category 19 as so expanded. 67 Category 20 seeks discovery of valuations obtained or received in relation to the assets of the trust. That is objected to on the grounds that it is oppressively wide and has no necessary connection with any issue in the proceedings. Valuations relevant to the preparation of the scheme for distribution are clearly relevant. That includes valuations received by Mr Ekstein whether used by him or not. It is hard to draw a line as to when an earlier valuation would cease to be relevant. Whilst acknowledging that there is a degree of arbitrariness in the assessment, I consider that valuations obtained or received from 4 October 2000 (being the date of the court's orders in the earlier proceedings) in relation to assets of the trust should be discovered. 68 Category 21 seeks such valuations in relation to any asset dealt with by the scheme. I will order discovery of such valuations obtained or received from 4 October 2000. Mr Burchett submitted that the request was fishing and sought documents going to the reasons for the trustee's ascribing values to assets without any basis for impugning his decisions. So far as appears on the present application, the information provided to the plaintiff as to the basis upon which the scheme was prepared and values attributed to assets of the estate and the trust was skimpy in the extreme. This is an example of where discovery is required before particulars. 69 Category 22 seeks discovery of records concerning any proposal to enter into a deed dated 21 September 2004 between Mr Ekstein and Mr Ward-Harvey. Mr Burchett submitted that the documents sought were not relevant to any issue in the proceedings. However the plaintiff challenges the deed by amendments to the plaintiff's statement of claim allowed on 11 March 2009. The documents sought in category 22 are relevant to the issues raised in para 50.2 of the amended statement of claim and para 48 of the defence. I allow discovery of documents in that category. 70 Category 23 seeks the discovery of documents which the Registrar ordered to be discovered. There is no need to make an order for discovery in that category. 71 Cateogories 24-27 seek discovery of documents in relation to terms of settlement between the estate and Sonja Ekstein. Objection is taken on the grounds of relevance. The scheme provided for Mr Ekstein to retain $340,000 to cover an annuity payable to Mrs Sonja Ekstein. This is an example of a topic on which the plaintiff is entitled to discovery before being required to plead. Objection is also taken on the ground that discovery is sought from an "inappropriate party". This is not a proper basis for objecting to discovery. If Mr Ekstein does not have documents in his possession, custody or power, then there will be nothing to discover. The fact that it can be expected that documents in the categories sought would be in the possession of another party, in this case Mr Ward-Harvey, is no reason for Mr Ekstein not giving discovery if he has documents in his possession, custody or power. Mr Ward-Harvey did not object to producing any documents he has of this character. The plaintiff is entitled to the discovery sought against Mr Ekstein in these categories. 72 Objection was taken to category 28 which seeks the production of "Records of the Frish/Ekstein partnership and its transactions". There was no limitation as to date and counsel for Mr Ekstein objected that the discovery sought would require Mr Ekstein to trawl through any family records that he might have of business transactions of the late Mr Otto Ekstein and the late Mr Sydney Frish which could go back decades as far as the 1950s in relation to transactions which are of no relevance. There is force in that submission. Counsel for the plaintiff was prepared to limit the records sought to those coming into existence since the death of the late Mr Otto Ekstein. This would confine the discovery to transactions of the partnership (or former partnership) to which Mr Ward-Harvey was presumably a party. If Mr Ekstein had any such documents it is likely that they would be relevant to the determination of the value of the estate's interest in the partnership, the value of which was used in the calculation of the amounts to be retained by Mr Ekstein and his family and is relevant to the scheme for distribution of the assets of the estate and trust. The same is true of the documents sought in category 31. Accordingly the first defendant should give discovery of any documents in his possession, custody or power coming into existence after the death of the late Otto Ekstein in categories 28 and 31. 73 The documents sought in categories 29 and 30 are clearly relevant to the allegations in para 32D.14 of the amended statement of claim. Discovery of the documents in category 29 may have been required under the Registrar's order requiring discovery of documents in category 25 of the list of categories of documents for discovery by the first defendant dated 12 July 2005. The first defendant should give discovery of documents in those categories except insofar as discovery of documents in those categories has already been given. 74 The first defendant did not object to giving discovery of the documents sought in categories 32, 33, 36 or 37, save for the documents referred to in the "inclusive definition", presumably the particular documents referred to in paras 32(a)-(f) and para 36(a)-(e). I do not consider that the documents in those sub-paragraphs go beyond what is relevant to an issue (as alleged by the first defendant) or go beyond what "[could] reasonably be expected to be within the possession of the first defendant". If none of the documents sought are within the possession, custody or power of the first defendant, he will not be required to give discovery. However, if documents in categories 32, 33, 36 or 37 are in the first defendant's possession, custody or power, he should give discovery of them. 75 The objection to categories 34 and 35 is that the categories have "nothing to do with the first defendant". The documents are relevant and if the first defendant does have possession, custody or power of the documents in those categories he should give discovery of them. 76 The documents sought in categories 38-40 are also relevant. I see no reason to limit the period of time for which the discovery is sought as contended for by the first defendant. The first defendant should give discovery of the documents in categories 38-40. 77 Category 41 seeks discovery of valuations and appraisals of the property of Elysee Pty Ltd at Burton Street, Kirribilli. It is clear from the correspondence between the solicitors that Mr Ekstein obtained a valuation of the property. He contends that he did not use it in calculating the value of the shares of Elysee Pty Ltd and therefore was not required to discover it. He contends that the valuation was lower than the valuation he in fact used. Whether or not this was a proper construction of the orders of the Registrar, the documents are relevant. The first defendant should give discovery of the documents sought in category 41. 78 Category 42 seeks discovery of "Communications concerning [the first defendant's] occupation of portion of the property owned by Elysee Pty Ltd at Burton Street, Kirribilli". 79 In my view that paragraph is too wide and is oppressive. It would extend to any document which Mr Ekstein may have received or brought into existence, and of which he kept a copy, concerning his occupation of the premises. For example, it would extend to a request to a plumber to fix a leaking tap in the premises he occupied. I reject category 42. 80 Category 43 seeks discovery of records of rent paid of the first defendant to Elysee Pty Ltd. These are clearly relevant. The learned Registrar refused to order that Mr Ekstein give discovery of documents setting out or referring to rent received by Elysee Pty Ltd in respect of the Kirribilli premises from 13 May 1992 on the basis that this was not an issue between the plaintiff and the first defendant and discovery should only be had from Elysee Pty Ltd. I do not agree with that reasoning. There is no doubt that the rent payable and paid by the first defendant to Elysee Pty Ltd up to July 2003 is relevant to determining the value of Elysee Pty Ltd's assets given that the Kirribilli property was valued by capitalising the income derived from it. The plaintiff is entitled to discovery from the first defendant as well as from Elysee Pty Ltd of documents sought in category 43. 81 Mr Ekstein objects to giving discovery of any documents in category 43 which post-date the distribution of the assets of the trust and estate in July 2003. The plaintiff does not seek an order to set aside the transfer of the shares held by the estate to Mr Ekstein or his nominee in Elysee Pty Ltd. The plaintiff pleads that she is a shareholder of Elysee Pty Ltd (amended statement of claim, para 53). This is admitted. There is an apparent inconsistency between this allegation and the allegation in para 79 of the amended statement of claim (also admitted) that "The totality of the shares in Elysee Pty Limited are owned or controlled by members of the Ekstein family" unless the plaintiff includes herself in that family. Notwithstanding this apparent inconsistency, I must proceed on the basis that the plaintiff is a shareholder of Elysee Pty Ltd. It was on this basis that she was given leave to bring derivative proceedings on its behalf against Mr Ekstein. The plaintiff seeks an order for the winding-up of Elysee Pty Ltd or the compulsory purchase of her shares. She alleges that Mr Ekstein has breached his duty as a director of Elysee Pty Ltd by occupying a portion of the premises at Kirribilli owned by Elysee Pty Ltd without paying to the company a proper commercial rental. That allegation is not confined to the position prior to 2003. She seeks an order that Mr Ekstein pay compensation or damages in respect of this alleged breach of his duty as a director. Accordingly, discovery of documents disclosing what rent has been paid for occupation of the Kirribilli premises should not be confined to the period before July 2003. The first defendant should give discovery of the documents sought in category 43 without being confined in the manner contended by the first defendant. 82 Categories 44-46 are relevant to the plaintiff's claims that Mr Ekstein was not entitled to receive director's fees or management fees from Elysee Pty Ltd. The documents are sought from 1992. Mr Ekstein says that this is too wide and outside "any limitation period". He submits that the plaintiff has no basis for impugning decisions as to the quantum of remuneration paid. However the plaintiff does plead the basis for impugning the payment of director's fees or fees for management. She pleads amongst other things that the company was without directors and that the articles of association of Elysee Pty Ltd stipulated that remuneration of the directors would be as determined from time to time by the company in general meeting. She pleads that there was no such determination and that fees paid to Mr Ekstein were paid without the company's authority. As well as denying these allegations, the first defendant pleads that all payments received by him were for legal and other services rendered by him and his firm in relation to the management of the company's property portfolio. He denies the plaintiff's pleading of the quantum of the sums which the plaintiff alleges were paid as director's fees and as management fees. The documents sought in categories 44-50 are relevant to these questions. I do not accept that they are oppressively wide. A further objection is taken to categories 47-50 namely that the request for discovery is not addressed to the "appropriate party", which should be Elysee Pty Ltd, the second defendant. Although this argument found favour with the Registrar, it is not well founded. If the first defendant has possession, custody or power of the documents in question, they should be discovered, regardless of whether they are in the possession, custody or power of the second defendant. The fact that both parties might be required to give discovery is not a reason for refusing discovery against both or either of them. I will therefore order discovery of the documents in categories 44-50. 83 Categories 51-53 are also relevant to the plaintiff's claims concerning Mr Ekstein's entitlement to receive fees from Elysee Pty Ltd. The first defendant's objection to discovery is that, as a shareholder and former director of the company, the plaintiff had all the access she could properly want to records such as notices of general meeting and records concerning the declaration and payment of dividends, as well as records concerning the appointment and retirement of directors. Counsel for the first defendant submitted that the plaintiff was seeking to "fish for yet more trivial informalities" by seeking documents in these categories. However, the documents in these categories are relevant and the first defendant's objection is not enhanced by hyperbole. The first defendant should give discovery of the documents in these categories. 84 In category 54 the plaintiff seeks discovery from the first defendant of the following documents: " 54. Records of transactions between the second defendant and any of the following companies, persons or organisations since the death of Otto Felix Ekstein: a. Paul George Ekstein (whether in his personal or any other capacity); b. Boucher & Muir Pty Ltd; c. H P Holdings Pty Ltd; d. Newton & co Pty Ltd; e. Boucher & Muir (Holdings) Pty Ltd; f. Paul Ward Harvey as executor of the estate of the late Otto Felix Ekstein; g. TaraMattBren Trust; and h. Westpac Banking Corporation. "

I agree with the submission for Mr Ekstein that this category seeks records of every transaction since 1992 between Elysee and the persons specified which may have no relationship to any issue in the proceedings. I think the problem has arisen because of the first defendant's resistance to giving discovery or providing information. But this does not justify an order for discovery of the width sought. One of the plaintiff's allegations is that in calculating the value of shares in Elysee Pty Ltd for the purposes of the scheme, Mr Ekstein brought in a liability to the TaraMattBren Trust. This is said to be a trust for Mr Ekstein's children. The plaintiff is entitled to discovery of documents relevant to the existence and quantum of any such liability as at 30 June 2003 or July 2003. Otherwise I consider that the discovery sought is too wide. I do not exclude the possibility of the plaintiff seeking further discovery after she has had adequate discovery of Elysee Pty Ltd's financial statements and primary accounting records. But at this stage I refuse wider discovery of category 54. I will however order the first defendant (as well as Elysee Pty Ltd) give discovery of documents relating to the existence or quantum of any liability of Elysee Pty Ltd to the trustee of the TaraMattBren Trust in 2003. 85 Categories 55 and 56 seek discovery of shareholder agreements and partnership agreements between Mr Sydney Frish and Mr Otto Ekstein, or between them and any other shareholders. The first defendant submits that this is fishing as only one partnership agreement is the subject of the plaintiff's pleadings. The difficulty with this approach is illustrated by the first defendant's tender of a minute of a meeting of Boucher & Muir Pty Ltd of 11 December 1991, paragraph 1 of which contains an acknowledgement by that company that the partnership agreement of 23 August 1984 between Mr Otto Ekstein and Mr Sydney Frish had been terminated. The same minute describes other arrangements that the then directors of Boucher & Muir Pty Ltd wished to implement. This was not a discovered document. I was told that it was produced by the first defendant when it was tendered at a hearing before McLaughlin AsJ in 2007. By the amendments to the statement of claim the plaintiff pleads that on or about 11 December 1991 it was resolved to endorse, or, if necessary, prepare amendments to the articles of association of Boucher & Muir Pty Ltd to permit shareholders to bequeath shares in the company to other members of the company, with provision for shareholders to have a first right of refusal in the event of sale by a successor's shareholder. The plaintiff pleads that it was the common understanding and expectation of the members of Boucher & Muir Pty Ltd that each of Mr Sydney Frish and Mr Otto Ekstein should be entitled to transfer his shares to any member of the company or to any member of his family and should be entitled to give and bequeath his shares through his will to any member of the company or to any member of his family. The plaintiff pleads that by reason, inter alia, of there having been a quasi partnership between the Frish and Ekstein families and by reason of the alleged common understandings and expectations, A class shareholders of Boucher & Muir Pty Ltd were required to exercise their voting powers in a way which did not effectively deprive the plaintiff of any real or substantial benefit from her shareholding. It is arguable that the arrangements between the respective families both before and after the death of Mr Otto Ekstein are relevant to the plaintiff's claims that the affairs of the companies have been conducted oppressively. If there are other documents evidencing such arrangements, they should be produced. 86 I will therefore order discovery of the documents sought in categories 55 and 56. The documents sought in categories 57-63 are also relevant for the same reasons and should be discovered by the first defendant. The fact that some of the documents sought might be privileged is not a reason for not ordering discovery. 87 In category 64 the plaintiff sought an order that the first defendant give discovery of records of transactions between Boucher & Muir Pty Ltd and 19 companies or individuals (including Mr Ekstein), all of whom are said to be related parties. Counsel for the plaintiff submitted that the documents were sought from 1992 and the transactions with Mr Ekstein and other interested or related parties have to be taken into account for the purposes of making a valuation in accordance with the provisions of the 1984 partnership agreement between Mr Otto Ekstein and Mr Sydney Frish. He submitted that non-arm's-length transactions had to be accounted for in a special way for the purposes of establishing fair value. Save in certain minor respects the fourth defendant did not object to giving discovery. That is not a reason for ordering discovery of such documents by the first defendant. The terms of the partnership agreement the plaintiff has pleaded do not demonstrate that every transaction with a related party would need to be reassessed for the purposes of valuing the various private company shares. The plaintiff might be entitled to additional discovery if she can demonstrate the relevance of particular transactions after discovery of the companies' primary accounting records. On the present materials I will not order discovery of documents sought in category 64. 88 The relevance of the documents sought in category 65 has not been demonstrated. I refuse to order discovery of those documents, at least at this stage. 89 The first defendant objects to the discovery sought in categories 66-70 and 87-89 essentially on the ground that the financial statements and tax returns of the fourth defendant and any relevant subsidiary from 1999 have already been discovered. For the reasons previously given, the plaintiff is entitled to discovery of financial statements and tax returns prior to 1999. Further, she is entitled to discovery of management records and primary accounting records, particularly given the admissions of errors in some of the financial statements that have been discovered. Accordingly, the first defendant should give discovery of the documents sought in categories 66-69 except insofar as discovery of the documents in those categories has already been given. Consistently with orders to be made for discovery by the fourth defendant, the first defendant should give discovery of the documents in categories 70 and 80 but limited to the financial year ended 30 June 1992 and following financial years. Discovery should also be given of the documents in categories 79 and 81. I do not accept the first defendant's contention that the discovery sought in respect of those categories is an unnecessary attempt "to uncover to the inconvenience of the 4th defendant yet further trivial informalities of no substantive prejudice to the plaintiff or anyone". The hyperbole is out of place. 90 The records of contracts and loan accounts sought in categories 82-86 and asset revaluations in category 87 are also relevant and should be discovered by the first defendant, but such discovery should also be limited to documents coming into existence after 13 May 1992 (in the same way as the comparable categories for discovery sought by the plaintiff from the fourth defendant are to be limited). 91 Categories 88 and 89 seek discovery of documents relevant to the valuation of shares. The first defendant should give discovery of the same categories of documents as the fourth defendant. That is, discovery will not be required of documents in categories 88 and 89 as at 13 May 1992 unless any party asserts that a valuation of shares in Boucher & Muir Pty Ltd should be undertaken as at that date. For the time being and consistently with the reasons set out in paras [112]-[113], discovery need only be given of the documents in categories 88(c) and (d)(iii), (iv) and (vii), and 89(b), (c) and (d). Further discovery may be required after a valuer has been appointed. 92 I am not satisfied of the relevance of the documents sought in category 90. I refuse the discovery sought in that category. 93 I am satisfied of the relevance of the documents sought in categories 91-99. They should be discovered. 94 I am not satisfied of the relevance of the documents sought in category 100. This category is in the same position as category 64 and I refuse discovery sought in that category. 95 I am satisfied of the relevance of the documents sought in categories 101-113. They should be discovered. 96 Category 114 is in the same position as categories 64 and 100. I refuse discovery as sought in that category, at least for the time being. 97 For the reasons previously given, the plaintiff is entitled to the discovery sought in categories 115-125, insofar as the first defendant has possession, custody or control of the documents. 98 Category 126 is in the same position as categories 64, 100 and 114. I refuse discovery sought in that category. 99 The plaintiff is entitled to discovery of the documents in categories 127-135. 100 Finally categories 136 and 137 seek discovery of correspondence between Mr Sydney Frish and Mr Ekstein, and between Mr David Frish and Mr Ekstein "in relation to the plaintiff". Mr Burchett submits that the communication should be related to a matter and time in issue in the proceedings. In principle, that position is correct. However, one of the trade-offs of requiring the parties to identify categories of documents for discovery is that the categories will not necessarily be defined by their relevance to issues. It is likely that any correspondence between Mr Ekstein and Mr Sydney Frish, or Mr David Frish, in relation to the plaintiff after Mr Otto Ekstein's death would be relevant. I will order discovery of these categories for correspondence after 13 May 1992. Discovery by second defendant 101 The plaintiff sought discovery of only 18 categories of documents from the second defendant. Category 18 is in the same terms as category 54 as sought against the first defendant. For the reasons I gave in respect of that category in para [84], I am not prepared at this stage to order discovery of documents by Elysee Pty Ltd sought in category 18, except for discovery of documents relating to the existence or quantum of any liability of Elysee Pty Ltd to the trustee of the TaraMattBren Trust in 2003. The second defendant should give discovery of any such documents. The plaintiff is entitled to discovery of the remaining 17 categories. Discovery by third to sixth defendants 102 Pursuant to the orders of Austin J of 3 March 2010, the third to sixth defendants are separately represented. Subject to one qualification, there was substantial agreement between the plaintiff and the third to sixth defendants as to what categories of documents should be discovered. The qualification is that counsel for the third to sixth defendants contended that those parties should not be required to give discovery of documents of which the plaintiff had sought discovery in July 2005, but had failed before the Registrar. For the reasons I have given in relation to the first defendant, I do not accept that submission. Discovery by third defendant 103 On that basis the third to sixth defendants' position in relation to further discovery about which there was no or limited dispute was as follows. The third defendant is to give discovery of documents in categories 1 and 2. It is to give discovery of the documents in categories 3, 4 and 5 if such documents came into existence after 13 May 1992. 104 The third defendant agreed to give discovery of the documents sought in categories 6, 7 and 8 to the extent they came into existence after 13 May 1992. Mr Smallbone for the plaintiff submitted that the timeframe should not be so limited as questions of what advice Mr Otto Ekstein and Mr Sydney Frish received during Mr Ekstein's lifetime would be relevant to the common understanding and expectation of the members of the companies in relation to the shareholding. Mr Smallbone pointed to evidence given by Mr Bilinsky on information and belief that he was informed by Mr Ekstein and Mr David Frish that: " ... the late Otto Ekstein and the late Sidney [sic] Frish established Newton & Co Pty Ltd, H P Holdings Pty Ltd and Boucher & Muir (Holdings) Pty Ltd:

i. In the case of Boucher & Muir (Holdings) Pty Ltd to overcome the effects on Boucher & Muir Ltd [sic] of the undistributed profits tax regime in force at the time;

ii. in the case of Newton & Co Pty Ltd and H P Holdings to provide standalone vehicles for the purchase of real estate;

iii. and generally that the internal structure of A and B class shares was to avoid death duties by removing dividend entitlements from the calculation of the value of the deceased's shareholdings;

iv. to ensure that the 'A' class shareholders maintain control of the companies and retain the absolute discretion over the payment of dividends to the 'B' class shareholders. "

Mr Bilinsky also deposed being told by Mr Ekstein and Mr David Frish that the late Otto Ekstein and the late Sydney Frish repeatedly said that their intention in setting up the share structure of Boucher & Muir Pty Ltd was so that it could pay dividends only to those who work in the company. 105 I accept the plaintiff's submission that the documents sought in categories 6-8 are relevant to the matters deposed to by Mr Bilinsky which will evidently be part of the defendants' case in the proceedings, and that such documents should not be limited to those coming into existence after 13 May 1992. I will therefore order discovery of documents in categories 6-8 without limitation as to date. 106 The third defendant had no issue with the giving of discovery sought in categories 9-11, provided they were limited to documents coming into existence after 13 May 1992. The plaintiff accepted that limitation. I will make orders accordingly. 107 The third defendant had no in issue giving discovery of the documents sought in category 12, save as to records of transactions between it and the TaraMattBren Trust and Westpac Banking Corporation. So far as transactions concerning the TaraMattBren Trust are concerned, there is no present issue concerning any dealings between that trust and Boucher & Muir (Holdings) Pty Ltd. I decline to make an order for discovery at this stage in respect of any dealings that there might have been between Boucher & Muir (Holdings) Pty Ltd and the trustee of that trust. If the discovery of the financial records of the company discloses that there were any such transactions which are relevant to any issue in the proceedings, then the plaintiff might obtain further orders for discovery. At this stage such an order is not warranted. 108 So far as transactions with Westpac Banking Corporation are concerned, the third defendant agreed to give discovery of bank statements and the plaintiff was content with discovery being so limited. Accordingly the third defendant should give discovery of documents coming within category 12 limited in the manner described above as well as limited to documents coming into existence after 13 May 1992. 109 Discovery is to be given of the documents referred to in categories 13-23 insofar as those documents came into existence after 13 May 1992, subject to the qualification that documents referred to in categories 15, 16 and 17 extend to documents for the financial year ended 30 June 1992. Discovery by fourth defendant 110 Discovery is to be given of the documents in categories 1 and 2. Discovery of documents in categories 3-5 and 9-11 should be given but confined to documents brought into existence after 13 May 1992. For the same reasons given in respect of discovery by the third defendant, discovery of documents sought in categories 6-8 should be given but not to be so limited. In relation to category 12, the fourth defendant does not object to giving, and should give, discovery of records of transactions between the fourth defendant and the persons or companies described in categories 12(a)-(j) and (l) from 13 May 1992. I accept that discovery, at least at this stage, should be so limited. No issue has emerged at this stage in relation to the other entities referred to in category 12. I refuse to order discovery at this stage in relation to transactions between the fourth defendant and the persons referred to in categories 12(k) and (m)-(s). 111 The fourth defendant does not object to giving discovery of the documents referred to in categories 13-17 which came into existence from 13 May 1992. In relation to categories 14-16 the documents to be discovered are to include documents relevant to the financial year ended 30 June 1992. The fourth defendant did not object to giving discovery of documents in categories 18-37 which came into exist from 13 May 1992 and the plaintiff accepted that limitation. The fourth defendant should give discovery of documents sought in these categories to which it consented or agreed, but limited in the manner so described. 112 In category 38 the plaintiff sought orders that the fourth defendant give discovery of various documents as at 13 May 1992, 30 June 2003, 6 December 2004 and "currently". The documents are sought as being relevant to the valuation of the fourth defendant as at those dates. Discovery of documents in those categories need not be given as at 13 May 1992 unless any party contends that a valuation of shares in the fourth defendant should be made as at that date. I understand that no party contends that the shares should be valued as at 13 May 1992. The fourth defendant does not object to giving discovery of the documents sought in categories 38(c) and (d)(iii), (iv) or (vii). Nor does it oppose giving discovery of the documents sought in categories 39(b), (c) or (d). The plaintiff pressed for discovery of the remaining documents sought in categories 38 and 39. Counsel submitted that discovery is required of all of the documents specified in paras 38 and 39 because it contends that the shares in Boucher & Muir Pty Ltd should be valued in accordance with clause 2 of the partnership agreement between Otto Ekstein and Sydney Frish dated 23 August 1984. 113 Orders have not yet been made for the adducing of evidence as to value or as to whether a single expert should be appointed to value the shares in the company. The views of a valuer as to what documents are required for the purposes of a valuation would clearly be material to the scope of discovery. There was no evidence on which to decide between the opposing contentions. A decision as to whether the fourth defendant should give discovery of all of the documents sought in categories 38 and 39, other than the discovery the fourth defendant has indicated it is willing to give, should be deferred. In the meantime the fourth defendant should give discovery of documents sought in those categories to which no objection was taken as set out in these reasons. Discovery by fifth defendant 114 The fifth defendant consented to giving discovery of the documents sought in categories 1 and 2. It consented to giving discovery of documents in categories 3-10 from 13 May 1992 onwards. For the reasons given in relation to the third and fourth defendants, it should also be required to give discovery of the documents in categories 5, 6 and 7 without limitation as to date. In relation to category 11, the fifth defendant objected to giving discovery of records of transactions between it and the David Victor Frish Family Discretionary Trust and the TaraMattBren Trust. For the same reasons as given in respect of the corresponding category concerning the third and fourth defendants, I do not consider that the fifth defendant should be required to give discovery of records of transactions between it and the TaraMattBren Trust. It agreed to give discovery of bank statements from Westpac Banking Corporation from 13 May 1992. It agreed to give discovery of the documents in categories 12-28 going back to 13 May 1992 or the financial year ended 30 June 1992 as the case may be. The plaintiff did not press for wider discovery. The fifth defendant should give discovery of documents sought in categories 1-28 to which it consented or agreed, but limited or expanded in the manner I have described. Discovery by sixth defendant 115 The same approach was adopted in relation to discovery from the sixth defendant. That is to say discovery is to be given of any documents in the possession, custody or power of the sixth defendant referred to in categories 1 and 2. Documents in categories 3-11 are to be discovered going back to 1992, save that documents in categories 6, 7 and 8 are to be discovered without limitation as to date. In relation to category 12, I decline to order discovery of records of transactions between the sixth defendant and the TaraMattBren Trust and discovery of records of transactions with Westpac Banking Corporation sought in category 12(m) should be confined to the production of bank statements from 13 May 1992. Discovery of the remaining documents sought in category 12(a)-(k) should otherwise be given back to 13 May 1992. Documents in categories 13-28 are to be discovered back to 13 May 1992 or the financial year ended 30 June 1992 as the case may be. Orders 116 For these reasons I make the following orders: 1. Order that within 28 days the first defendant either: (a) provide to the plaintiff's solicitor a copy of all books and records of the Otto Ekstein Family Trust remaining in his possession or the possession of any agent of his; or

(b) produce such documents to the court. 2. Order that the plaintiff have leave to photocopy all documents produced to the court by the first defendant pursuant to order 1(b), and that such photocopying be undertaken within 21 days of the plaintiff's solicitor being advised that the documents have been produced to the court. 3. Order that after the plaintiff has photocopied documents produced to the court pursuant to order 1(b) the documents so produced may be returned to the first defendant. 4. Order that the solicitors for the plaintiff and the first defendant make and keep a record of documents produced pursuant to order 1. 5. Order that by 20 July 2010 the first to sixth defendants give discovery in accordance with these reasons of the documents referred to in the Lists of Categories of Documents for Discovery by the First to Sixth defendants which are exhibit B on the application, and forthwith thereafter make the same available for inspection by the plaintiff. 6. Order that the plaintiff's amended notice of motion filed on 19 April 2007 and the plaintiff's interlocutory process filed on 31 March 2010 be otherwise dismissed. 7. Stand over proceedings to 23 August 2010 before the Corporations List Judge for directions. 8. Liberty to restore before the Corporations List judge in the Monday Corporations List on seven days' notice. 117 My prima facie view is that costs of the applications be costs in the proceedings. I give liberty to any party to apply within 7 days for a different costs order. The application may be made in writing to my associate accompanied by a submission as to the different costs order sought. Any such application and supporting submission is to be served on an affected party within the same period of 7 days. Within a further 7 days any affected party should provide to my associate (with a copy to the moving party) his, her or its submission in response and may at the same time make his, her or its own application for a different costs order with supporting submissions. Any submission in reply should be exchanged and provided to my associate within a further 7 days. If any different costs order is sought I will deal with the application or applications on the papers. If no application for a different costs order is made within 7 days as provided above, the costs of the applications are costs in the proceedings. ******

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