Lieu & Anor v Deng & Anor [2006] NSWIRComm 27 (31 August 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Lieu & Anor v Deng & Anor [2006] NSWIRComm 27

FILE NUMBER(S): IRC 2821

HEARING DATE(S): 30/01/2006

DECISION DATE: 31/01/2006

PARTIES:

FIRST APPLICANT

Paul Lieu

SECOND APPLICANT

Landmark Enterprises Pty Limited

FIRST RESPONDENT

Margaret Jiasha Deng

SECOND RESPONDENT

Dengs Investments Pty Limited

JUDGMENT OF: Staff J

LEGAL REPRESENTATIVES

FIRST AND SECOND APPLICANTS

Mr A Gotting of counsel

Solicitor: Ms F Glynn

Somerville & Co

FIRST RESPONDENT

Mr A J Grant of counsel

Solicitor: Mr R J Kitching

Christopher Lee & Associates

SECOND RESPONDENT

Solicitor: Mr P J Brand

Bartier Perry

CASES CITED: The State of Queensland & Anor and J L Holdings Pty Ltd (1997) 189 CLR 146

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staff J

31 January 2006

Matter No IRC 2821 of 2001

PAUL LIEU & ANOR v MARGARET DENG & ANOR

Application pursuant to s 106 of the Industrial Relations Act 1996

JUDGMENT

[2006] NSWIRComm 27

1 By motion filed on 27 January 2006, Paul Lieu, ("the first applicant") and Landmark Enterprises Pty Ltd ("the second applicant"), sought the following orders:

1. The hearing of this notice of motion be expedited.

2. The hearing dates of 6, 7, 8 and 9 February 2006 for this proceeding be vacated.

3. The Respondents, within 7 days of the date of these orders, shall discover to the Applicants all documents set out in Schedule "A" to this motion.

4. In the event that the Respondents do not comply with order 3, the First Respondent shall, within 14 days of the date of this order, file and serve an affidavit which identifies the documents set out in Schedule A no longer in the First and/or Second Respondents' possession or control and which sets out the circumstances in which those documents left the First and/or Second Respondents' possession or control.

5. The applicants be permitted to file and serve further evidence in these proceedings after reviewing the documents discovered by the Respondents pursuant to order 3.

6. The Respondents to pay the costs of the notice of motion on an indemnity basis and forthwith.

7. Such further or other order as this Honourable Court deems fit.

2 Mr A J Grant of counsel, who appeared for Margaret Deng, ("the first respondent"), opposed the orders sought with the exception of order 1. Mr P J Brand, solicitor, who appeared for Dengs Investments Pty Ltd, ("the second respondent") adopted an identical position.

3 Mr A Gotting of counsel, who appeared for the applicants, relied upon an affidavit of the first applicant sworn 25 January 2006.

4 Counsel for the first respondent tendered an affidavit of Patricia Mary Hutton, solicitor, who is responsible for the conduct of the proceedings for the first respondent. Mr Brand tendered an affidavit of himself sworn 30 January 2006.

5 I do not propose to summarise the extensive affidavit evidence. In essence, the evidence discloses that this matter has had a somewhat tortured history. From time to time, due to the first applicant's financial position, he has been unable to retain solicitors, pay conduct money and has failed to comply with orders made by the Court.

6 It is contended by the applicants that the first and second respondents have failed to fully comply with orders for discovery made by the Court and to fully comply with summonses issued for the production of documents.

7 Some of the material the subject of discovery, which was also sought in the summonses for production, appears to me to be relevant to issues in the proceedings.

8 The applicants complain in their summons for relief that since March 1996, despite requests by the applicants to be provided with reasonable financial information regarding the affairs, management and financial conditions of the business and the second respondent, the respondents have failed and refused to provide such information.

9 The evidence of Ms Hutton is that the first respondent has discovered all documents in her possession, custody, or power, pursuant to the order for discovery made by Marks J on 14 April 2003 and the summonses for production issued to her with the exception of two matters.

10 The two exceptions are firstly, the financial statements for the second respondent for the year ended 30 June 2004, and secondly, bank statements for the Commonwealth Bank of Australia ("CBA"), Cash Management and Award Saver Accounts. These accounts are sought on the assumption that they may evidence any transfer or funds or deposits by or on behalf of the second respondent.

11 Ms Hutton deposed that she anticipated that she would be able to serve a further supplementary list of documents (together with copies of the documents), by 31 January 2006.

12 It is also contended by the applicants that the second respondent failed to produce "merchant account statements" issued by the Commonwealth Bank. For its part, the second respondent contends that these statements are simply a one line summary of credit card transactions, the full details of which are contained in the bank statements for the cheque account conducted with the CBA. All cheque account statement have been produced.

13 The applicants issued a summons for production of the merchant statements on the CBA. These statements were produced by the CBA in December 2005.

14 The applicants submit that they wish to have a report prepared by a financial expert regarding the material contained in the merchant account statements and it has not been possible for this to be finalised.

15 Mr Gotting submitted that there was no evidence of prejudice brought by the first and second respondents. Mr Grant contended that the first respondent would be prejudiced if the hearing was adjourned, because it would cause further delay to proceedings with were commenced in 2001 and which relate to a contract or an arrangement which was entered into 10 years ago.

16 Mr Brand submitted that his client would be prejudiced as the lease of the premises where the business was conducted expires at the end of February 2006, and if there are no premises, there will be no moneys for the shareholders.

17 The relief sought in matters such as this is, in my view, inevitably, finely balanced. As was observed by Dawson, Gaudron and McHugh JJ in The State of Queensland & Anor and J L Holdings Pty Ltd (1997) 189 CLR 146 at 155:

...Case management, involving as it does the efficiency of the procedures of the Court, was, in this case, a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.

18 Applying the above principle to the evidence before me, I have formed the view that the overall interests of justice warrant the granting of some relief in this matter.

19 I therefore make orders 2, 3, 4 and 5, as sought in the notice of motion and set out earlier in this judgment, subject to certain variations.

20 In respect of order 5, the applicants shall file and serve any further evidence that they propose to rely upon on or before 4.00 pm on Friday 24 March 2006. The respondents are to file and serve any further evidence in reply on or before 4.00 pm on Friday 21 April 2006.

21 Although the Commission endeavours to take into account the availability of counsel, as I cannot hear the matter in September and it is likely the matter will go over until late October, I confirm the dates which I had earlier proposed. The matter will be set down for hearing commencing at 10.00 am on Monday 28 August 2006 and I reserve 29, 30 and 31 August 2006 for completion of the matter.

22 Having heard submissions in respect of costs, I accept that this is a discrete application. Taking into account the interests of each of the parties in this matter, in my view, and I order, each party should bear their own costs of the notice of motion. I reject the application by the respondents for their costs that are being thrown away by the adjournment.

23 The parties have liberty to apply upon notice to my Associate.

LAST UPDATED: 07/02/2006