In the matter of Australian Innovative Precast Pty Limited (in liquidation)

HIS HONOUR: On 26 September 2014, the plaintiff liquidators had an order for production issued addressed to Maul Products Pty Ltd. On or about 17 October 2014, counsel for the present respondent, Mr Paul De Oliveira – who is apparently the proper officer of that company – appeared and produced documents in answer to the order for production. Inspection of those documents revealed to the liquidator that the documents had been redacted.

On 3 November 2014, Mr De Oliveira was publicly examined before a Deputy Registrar. In the course of that public examination, he gave an undertaking, in somewhat ambiguous terms, to produce unredacted copies of the documents within two weeks. The Deputy Registrar asked him:

To which the answer was, "Yes". The Registrar said that he would try and stop short of making a formal order to do so, but extracted an undertaking, asking:

To which Mr De Oliveira responded, "Yeah, I'll provide the documents."

Ultimately, the Deputy Registrar said:

The order for production, of course, required production to the Court, not to the liquidator. On 5 November 2014, the liquidator's solicitors sent an email to Mr De Oliveira's solicitors, which noted:

On 18 November 2014, a further email was sent, noting:

Mr De Oliveira's solicitor responded at 4.18pm that day:

In fact, it appears that on 16 November, Mr De Oliveira had sent to the Court two faxes producing the documents in question. However, neither he nor his solicitors informed the liquidator's solicitors that that had happened.

On 8 December 2014, the liquidator filed an interlocutory process seeking an order that Mr De Oliveira be dealt with for contempt in failing to produce the documents in compliance with his undertaking. That interlocutory process first came before the Court on 17 December, when the proceedings were adjourned to today. General access was granted to the documents produced to the registry by fax on 16 November, and the parties attended at the registry to track down the documents that had been produced, which were, with some difficulty, ultimately located.

Today, the liquidator has consented to an order dismissing the contempt application, but seeks an order for costs of the interlocutory process. On one view – the substantive relief having been dismissed – the starting point might be that the liquidator should pay the costs of the unsuccessful contempt application. Alternatively, the view espoused in many cases is that where the parties can agree on the outcome of proceedings but are unable to agree on the question of costs, the Court will ordinarily not embark on a hearing of the proceedings to decide the question of costs but will take the view that each party should bear its own costs.

In this case, it seems to me that the contempt application was doomed to fail because Mr De Oliveira had already produced the documents to the Court, albeit by facsimile and prior to the date by which their production was required. It is unfortunate, to say the least, that that was not communicated to the liquidator's solicitors, but it is also unfortunate that the liquidators did not make inquiries of the Court to ascertain whether there had been production. Mere reliance on an assumption that there would be production inter partes does not seem to me to be sufficient ground to commence proceedings for contempt.

In those circumstances, I am certainly not satisfied that the liquidator is entitled to a costs order. No order is sought by Mr de Oliveira. Accordingly, there will be no order as to costs, to the intent that each party bear their own costs of the interlocutory process filed 8 December 2014.