Mac Wealth Holdings Pte Ltd v Integrated Green Energy Amsterdam BV

[2020] NSWSC 351

Supreme Court

New South Wales

Medium Neutral Citation:

Mac Wealth Holdings Pte Ltd v Integrated Green Energy Amsterdam BV [2020] NSWSC 351

Hearing dates:

On the papers

Decision date:

03 April 2020

Jurisdiction:

Equity - Commercial List

Before:

Ball J

Decision:

(1)   The defendants’ subpoena to produce filed on 10 March 2020 and addressed to the proper officer, TheunissenTrollip be set aside.

 

(2)   The defendants’ subpoena to produce filed on 25 March 2020 and addressed to the proper officer, Sidcor Pty Ltd be set aside.

 (3)   The defendants pay the plaintiff’s costs of the notice of motion dated 30 March 2020.

Catchwords:

PROCEDURE — Subpoena for production of documents — Where connecting phrase “relating to” used — Whether subpoena should be set aside

Category:

Procedural and other rulings

Parties:

Mac Wealth Holdings Pte Ltd (Plaintiff)
Integrated Green Energy Amsterdam BV (First Defendant)
Integrated Green Energy Solutions Ltd (Second Defendant)
Integrated Green Energy Singapore Pte Ltd
(Third Defendant)

Representation:

Counsel:
RC Gration (Plaintiff)
W G Muddle SC (Defendants)

  Solicitors:
TheunissenTrollip (Plaintiff)
Dentons Australia (Defendants)

File Number(s):

2019/356570

Judgment

1. By an amended notice of motion dated 30 March 2020, the plaintiff seeks to set aside subpoenas served by the defendants. One subpoena, dated 10 March 2020, is addressed to TheunissenTrollip. The other, dated 25 March 2020, is addressed to Sidcor Pty Ltd.

2. These proceedings concern (1) a Letter of Understanding dated 26 October 2018 between the plaintiff and first and second defendants by which the plaintiff agreed to invest the sum of $10 million in the first defendant and (2) a Deed of Acknowledgement entered into on or about 3 June 2019 between the plaintiff and first, second and third defendants by which it is said the defendants acknowledged the amount outstanding under the Letter of Understanding and agreed to provide guarantees in respect of the repayment of that amount. A critical issue in the case is whether, on its correct construction, the Letter of Understanding provided for a loan of $10 million that was repayable with interest or provided for an investment of $10 million which was repayable early if certain conditions were satisfied which have not been satisfied.

3. TheunissenTrollip are the plaintiff’s solicitors and Sidcor is the corporate entity through which Mr Paul Siderovski provided accounting services to the plaintiff. Both subpoenas are in similar terms. In substance, they seek production of “All documents relating to”:

1. the provision of financial, tax or other advice to the plaintiff concerning the $10 million investment;

2. the Letter of Understanding;

3. the Deed of Acknowledgement;

4. the commercial and financial relationship between the plaintiff and the defendants.

4. In my opinion, the subpoenas should be set aside. It will rarely be appropriate to use the connecting phrase “relating to” in a subpoena. That phrase is very broad and the nature of the connection it requires is generally too vague to make it appropriate for use in a subpoena. There is nothing about these subpoenas that sets them apart in that respect.

5. The documents the subject of the subpoenas are said to be relevant to the construction of the Letter of Understanding because they may shed light on the surrounding circumstances relevant to the interpretation of the written documents. So, for example, it is said that a document that contained advice that the Letter of Understanding should look like a loan for tax purposes would be relevant to the question whether, on the correct interpretation of the Letter of Understanding, it provided for a loan, rather than a capital investment. But why that should be so is unclear. Correspondence between the plaintiff and its advisors on the character of the agreement for tax purposes would only be relevant to the plaintiff’s subjective intentions. It would shed no light on the objective interpretation of the written agreement or the surrounding circumstances known to both parties.

6. It is apparent that the subpoenas would catch many documents which are not relevant. Frequently, it will be the case that a subpoena cannot be drafted to catch only relevant documents. But in this case, the categories are expressed so broadly that they could be expected to catch many documents that are not relevant. In that respect the subpoenas also have the vice of fishing for relevant documents.

7. The plaintiff has been successful in its application. There is no reason why costs should not follow the event.

8. Accordingly, the orders of the Court are:

1. The defendants’ subpoena to produce filed on 10 March 2020 and addressed to the proper officer, TheunissenTrollip be set aside.

2. The defendants’ subpoena to produce filed on 25 March 2020 and addressed to the proper officer, Sidcor Pty Ltd be set aside.

3. The defendants pay the plaintiff’s costs of the notice of motion dated 30 March 2020.

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