Kostov v YPOL Pty Ltd

[2017] NSWSC 262

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kostov v YPOL Pty Ltd [2017] NSWSC 262
Hearing dates:	16 March 2017
Date of orders:	16 March 2017
Decision date:	16 March 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) The Notice of Motion filed by the first defendant on 10 March 2017 is dismissed. (2) The question of costs of the motion is reserved for determination by the trial judge. (3) I confirm the hearing date of 27 March 2017.
Catchwords:	CONTEMPT – Leave sought to issue subpoena for the production of telephone records – Where telephone records said to be material to proving contempt – Where alleged contemnor appeared before the Court and made admissions rendering the subpoena unnecessary – Motion dismissed
Cases Cited:	Kostov v YPOL Pty Ltd [2016] NSWSC 1722 Kostov v YPOL Pty Ltd [2017] NSWSC 39
Category:	Principal judgment
Parties:	Adriana Kostov (Plaintiff) YPOL Pty Ltd ACN 109710698 (First defendant) Jeffrey Easton (Second defendant)
Representation:	Counsel: Plaintiff – In person Mr A Zahra (First Defendant)     Solicitors: Sparke Helmore Lawyers (First defendant)
File Number(s):	2016/257819
Publication restriction:	No

Judgment – ex tempore (revised)

1. Before the Court is a Notice of Motion filed on 10 March 2017 seeking, amongst other things, an order that the first defendant be granted leave to file and serve a subpoena to produce documents upon Telstra Corporation Limited (“Telstra”). The Notice of Motion is supported by an affidavit of Malcolm John Cameron, solicitor, of 10 March 2017.

2. These proceedings have a long, and it might be said tortured, history, some of which needs to be summarised in order to put the present matter in context.

3. On 1 December 2016, I made orders requiring the plaintiff to (inter alia) desist from communicating with the first defendant: Kostov v YPOL Pty Ltd [2016] NSWSC 1722. It is now alleged that the plaintiff is in contempt of this court as a consequence of breaching those orders.

4. In January this year, the first defendant sought leave from Lindsay J to issue a subpoena for the production of records from Telstra. His Honour granted that leave. However on 3 February the matter came before Schmidt J, who revoked that leave for the reasons more fully set out in her Honour’s judgment: Kostov v YPOL Pty Ltd [2017] NSWSC 39. Her Honour's revocation of the earlier grant of leave was based upon the fact that in the course of the proceedings before her on 3 February, the plaintiff appeared in person and made a number of admissions regarding the matters said to constitute the contempt, rendering the issue of a subpoena unnecessary.

5. In the intervening period the allegation of contempt against the plaintiff has widened. The first defendant now alleges that the plaintiff engaged in additional communications in breach of my orders, such communications being over and above those which were the subject of the plaintiff's admissions before Schmidt J. The subpoena now sought to be issued seeks to capture telephone records which, it is said, will prove that the plaintiff in fact engaged in those further communications.

6. I should note that the proposed subpoena seeks the production of records dating back to August 2016, some four months prior to the date on which I made the orders which have given rise to the contempt proceedings. In her judgment of 3 February 2017, Schmidt J expressed (at [7]) some doubt as to the relevance of material dating back to August of 2016. I share her Honour's doubts.

7. Part way through the hearing of the motion this morning, the plaintiff appeared before the Court. She had telephoned my Associate only a matter of minutes before asserting that she was in hospital and could not attend. The transcript will reflect that in circumstances where I made it clear that she was under no obligation to say anything, or make any admissions, the plaintiff conceded that she had made the entirety of the communications upon which the first defendant will rely in support of the allegation of contempt, including those in respect of which the subpoena was sought to be issued.

8. In those circumstances, counsel for the first defendant has conceded that the issue of the subpoena is no longer necessary and submitted that the appropriate order is that the Notice of Motion be dismissed. The plaintiff takes no issue with such an order.

9. There remains the question of costs. It is the first defendant's position that this question should be reserved for consideration by the trial judge. The plaintiff submitted that she was entitled to an order for costs, on the basis that she had made extensive admissions when the proceedings were before Schmidt J, thus rendering the issue of the Notice of Motion completely unnecessary. There may be some merit in that proposition, but the question of costs is best determined by the trial judge.

10. Accordingly, in those circumstances, I make the following orders:

1. The Notice of Motion filed by the first defendant on 10 March 2017 is dismissed.

2. I reserve the question of costs of the motion for determination by the trial judge.

3. I confirm the hearing date of 27 March 2017.

**********

Amendments

25 February 2019 - Corrections to two typographical errors in [7] and [8]