Poon v Huang

Before the Court is a motion filed by the plaintiff on 24 November 2025 to set aside a notice to produce issued by the first defendant to the plaintiff dated 13 November 2025.

In support of the motion the plaintiff/applicant relies on two affidavits of Mr Raymond Lee, affirmed on 13 November 2025 and 23 November 2025.

The motion is opposed. In opposition to the motion the first defendant relies upon an affidavit of Yu Chen dated 14 November 2025.

The notice to produce seeks production of the following documents:

These proceedings were commenced by summons filed on 9 September 2025 before the then Duty Judge Kunc J. For present purposes it is sufficient to record that they concern a property located in Homebush West in New South Wales and concern an issue in relation to ownership of that property. The concern of the plaintiff is that if the first defendant lodges or otherwise attempts to register a notice of death in respect of the land, that will have the effect of making the first defendant the owner of the entirety of the land in circumstances where it is contended that the deceased dealt with his one half share in the land prior to his death.

All that needs to be emphasised for present purposes is that it is a property in Homebush West that is in at issue in the proceedings and it concerns the owner in relation to that property.

The notice to produce, as I have set out above, concerns some arrangements in relation to a property in Queensland.

Pleadings have not yet closed. Points of Claim have been filed and the Points of Defence are due next week.

It is far from obvious to me that the documents sought in the notice to produce have any relevance to the matters at issue in the proceedings.

In the written submissions filed on behalf of the first defendant in opposition to the motion it is contended that, as I understand them, the documents sought in the notice to produce have relevance to a family provision claim that may be brought by the first defendant, apparently either in separate proceedings or by way of cross‑claim in these proceedings. It is also said that the documents sought may have relevance to an estoppel claim in these proceedings.

In relation to this latter aspect, namely a proposed estoppel claim, it is far from obvious to me as to how the documents in relation to a property in Queensland can bear upon an estoppel claim in relation to a property in Homebush West in New South Wales. Mr Antill of counsel, who appears for the first defendant in opposition to the motion, candidly accepted that he could not advance any submission as to the relevance of the documents.

In relation to their potential relevance to a family provision claim, that would be dealt with in separate proceedings, not in these proceedings.

I therefore cannot see any relevance of the proposed documents to the matters at issue in these proceedings.

In any event, even if there was some potential relevance of the documents sought in the notice to produce to these proceedings, nothing was said, either orally today or in the written submissions, as to why it was appropriate to issue a notice to produce at the time at which that notice to produce was issued. Practice Note SC Eq 11 makes clear that questions of disclosure, other than in exceptional circumstances, are dealt with after evidence has been filed by the parties in the proceedings: see for example Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [130]-[131]. The evidence in relation to the proceedings has not yet closed. Indeed, pleadings have not yet closed. Nothing has been said as to why, in the circumstances of this case, the ordinary processes of the court in relation to disclosure, where disclosure is dealt with after evidence has been filed, should not be adhered to.

It is for these reasons that I am satisfied that the notice to produce should be set aside.

Accordingly I order that the notice to produce dated 13 November 2025 issued by the first defendant to the plaintiff be set aside.

[Counsel addressed as to costs]

The plaintiff seeks an order the first defendant pay the plaintiff’s costs of and incidental to the notice of motion on the indemnity basis as agreed or assessed and forthwith. Mr Clifton has also foreshadowed that those costs be dealt with on a gross sum basis.

It seems to me that it is appropriate in the circumstances for an indemnity costs order to be made.

When the matter was before me on 14 November 2025, the issue of the validity of the notice to produce was addressed, albeit relatively briefly. I indicated on that occasion to the representative for the first defendant that then appeared that I could not, as presently instructed, see any basis on which the notice to produce could be maintained. Counsel then appearing for the first defendant was not in a position to assist in relation to that matter. In an attempt to deal with the matter without the need for a notice of motion I indicated to the first defendant that I required the first defendant to indicate to the plaintiff by the following Monday whether the notice to produce was pressed and if it was pressed, to set out the basis on which it was contended that the notice to produce was appropriate at this stage. In response, it appears that on the Monday it was simply indicated on behalf of the first defendant that the notice to produce was pressed. Nothing was said on this occasion as to why the notice to produce was pressed, i.e. why it was appropriate in the circumstances to issue a notice to produce at this early stage.

It was after I was informed that the notice to produce was pressed that I granted leave to the plaintiff to file the notice of motion seeking to set aside the notice to produce. I also made orders in relation to submissions being filed in relation to the motion. Yesterday evening I received some brief submissions on behalf of the defendants as to why the notice to produce should not be set aside. For the reasons given above, I do not accept any of those submissions.

It seems to me that, in the circumstances, the notice to produce should never have been issued in the first place. In any event, the notice to produce should not have been pressed after 14 November 2025. In those circumstances, there would have been no need for a notice of motion to be filed seeking to set aside the notice to produce.

I therefore am of the view that an indemnity costs order is appropriate. I am also satisfied that an order should be made for those costs to be payable forthwith.

Given the likely quantum of those costs, it is appropriate that the court does whatever it can do to minimise the costs that are involved in assessing those costs. It seems to me that the best way forward is to simply make the order for indemnity costs and that they be payable forthwith and then to reserve to the plaintiff the right to bring an application for a gross sum costs order in the event, which I will I hope will not occur, that an appropriate gross sum figure can be agreed.

Accordingly, the orders that I make in relation to costs are as follows: