Donnelly v Australia and New Zealand Banking Group Ltd

[2014] NSWCA 93

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 93

Hearing dates:

24 March 2014

Decision date:

24 March 2014

Before:

McColl JA

Decision:

1. Notice to produce filed on 12 March 2014 set aside.

2. Respondent to the notice of motion to pay the costs thereof.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE - setting aside notice to produce - whether notice to produce seeks documents relevant to fact in issue on appeal - notice to produce set aside

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Interlocutory applications

Parties:

Fiona Marie-Therese Donnelly - appellant
Australia and New Zealand Banking Group Ltd - first respondent
ANZ Asia Ltd - second respondent

Representation:

Counsel:
K Ryan - appellant
A Vetrova - respondents
Solicitors:
Gadens Lawyers - respondents

File Number(s):

CA 2013/372887

Publication restriction:

No

 Decision under appeal 

Citation:

Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760

Date of Decision:

2013-11-29 00:00:00

Before:

Stevenson J

File Number(s):

SC 2011/305340

Judgment

1. McCOLL JA: This is an application by Australia and New Zealand Banking Group Limited and ANZ Asia Ltd pursuant to a notice of motion filed on 13 March 2014 seeking to set aside a notice to produce filed on behalf of Ms Donnelly, the appellant in the proceedings.

1. Ms Donnelly appeals from a decision of Stevenson J given on 29 November 2013 in which his Honour held that the first applicant on the notice of motion was entitled to judgment in debt and to possession of a property: Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760. The debt in question arose pursuant to what his Honour described as a "Dual Currency Residential Property Loan Facility" entered into in Hong Kong in June 2008 (the "Hong Kong Loan").

1. The notice to produce which was filed on 12 March 2014 sought production of the following documents:

"1. All documents arising out of the meeting with Daniel Brown, Branch Manager of ANZ Martin Place Branch, and the Appellant on or about 23/5/2011 and in particular, any documents arising out of or relevant to an email by Daniel Brown to the Appellant (on 6/6/2011 at 5.25pm) which refers to a conversation with Mia in the Customer Care Team, which conversation referred to the loan to the Appellant in Hong Kong dollars and stated 'the related loan contract was not written in Australia.

In this notice, the word 'documents' means any record of information or record of conversation and includes:

i. letters, facsimiles, emails; and

ii. anything on which there is writing; and

iii. anything on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and

iv. anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

v. a map, plan, drawing or photograph;

or copies thereof."

1. In his submissions Mr K Ryan, of counsel, who appears for the respondent to the notice of motion, said that he would limit the notice to produce to seek production of documents relating to communications between Ms Maya (Mia) Lim with Mr Daniel Brown in respect of the fact the loan contract "was not written in Australia". Mr Ryan says that if documents were produced in response to a notice to produce so worded then, if relevant, an application would be made to adduce fresh evidence in the appeal.

1. Mr Ryan explained that the reason these documents were not sought prior to the trial before Stevenson J was that the significance of email communications attached to Ms Donnelly's affidavit of 21 March 2014 was not appreciated at that time.

1. As I understand the point Mr Ryan seeks to make, he is of the view that production pursuant to the notice to produce may cast light on the circumstances in which a disclaimer, which he contends adversely affected the respondent's interests in relation to the loan agreement, was included in a facility letter presumably provided in 2008 prior to entry into the Hong Kong loan.

1. Mr Ryan accepts that there is no reference to what I will call the "disclaimer issue" in Stevenson J's reasons, nor any reference to such an issue in the grounds of appeal. He submitted, however, that the disclaimer issue also went to the respondent's unconscionability defence to the applicants' proceedings.

1. The only reference to an issue of unconscionability in the grounds of appeal is in paragraph 7 which relates to the contents of something referred to as the "Product Information Sheet".

1. Ms A Vetrova, who appears for the applicants on the notice of motion, says that Mr Brown gave evidence by affidavit before Stevenson J and that his evidence was not challenged. She submits that the Hong Kong loan was entered into in 2008 and the documents sought appear to relate to exchanges between Mr Brown and Ms Lim some three years later. She contends that the issue of disclaimer was not the subject of cross-examination, I assume, of any of the Banks' witnesses. Finally she argues that the notice to produce is misconceived.

1. A notice to produce may be issued as long as, among other matters, it is relevant to a fact in issue: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 21.10(1)(b). That test is satisfied if a document which may be produced in response to the notice to produce could rationally affect the assessment of the probability of the existence of a fact relevant to a fact in issue: UCPR 21.9(2).

1. Having regard to those tests and in the circumstances in which I have described (and notwithstanding the fact that there is not, at this stage, an extant application to adduce fresh evidence on appeal), I am of the view that the notice to produce does not seek to produce any document which is, or might be, relevant to a fact in issue in the appeal, whether in its original form or in the form Mr Ryan indicated to the Court in which he was prepared to reframe it.

1. Accordingly, I order that the notice to produce dated 12 March 2014 filed on behalf of the respondent to the notice of motion, (the appellant in the appeal) be set aside.

1. HER HONOUR: Is there any reason Mr Ryan why I should not make an order for costs?

1. RYAN: No your Honour.

1. HER HONOUR: I order that the respondent to the notice of motion pay the costs thereof.

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