In the matter of Aquaqueen International Pty Limited

For the purposes of the hearing next week, I granted leave on an earlier occasion to Ms Penson to issue subpoenas to Mr Frank Hoare, process server and Mr Trent Devine, liquidator.

Those subpoenas have been returnable before me today.

Ms C Perry, Solicitor, has appeared on behalf of both Mr Hoare and Mr Devine.

I have made certain rulings in relation to the scope of those subpoenas. Ms Perry has applied for an order that before the Court requires compliance with those subpoenas (or in the case of Mr Hoare, further compliance, because he has produced one document this morning), Ms Penson should be ordered to provide an amount by way of security for Mr Hoare's and Mr Devine's reasonable costs of compliance with their respective subpoenas.

UCPR Pt 33 r 33.11 provides:

As will be apparent from the terms of that rule, it is on its face addressed to what is to occur after a party has complied with a subpoena.

In the matter of Bauhaus Pyrmont Pty Ltd (in Liquidation) [2006] NSWSC 253, Austin J said:

I respectfully agree with and adopt his Honour’s views about the inherent jurisdiction. The Court in particular fixes today on his Honour's reference to there being “some doubt about the ability of the issuing party to meet an order for recovery of expenses of such a substantial amount", although the present case turns on the likelihood of any payment rather than the size of the amount involved.

Ms Perry submits that given the history of these proceedings, including the fact that they are all about attempting to recover nearly $400,000 in costs orders from Ms Penson which Ms Penson has, at least prima facie on the evidence that has been adduced before me, declined and resisted in various ways paying, this is a case where the Court ought to be satisfied that there will again be either an unwillingness or an incapacity on Ms Penson's part to meet the reasonable costs of compliance of Messrs Devine and Hoare in relation to these subpoenas.

The Court accepts that submission. It is unnecessary for present purposes to recite the extraordinary history of the costs orders in this litigation and its prolongation through the filing of numerous motions by Ms Penson, both in this Court and in the Court of Appeal, which have had the effect of keeping the plaintiffs out of costs orders to which, again on a prima facie basis, it appears that they are entitled.

There is evidence before me that to comply with the subpoena addressed to Mr Devine, his costs (including legal costs) are estimated at $1,705 plus GST. That is only an estimate. It is, of course, always difficult for such estimates to be precise. However, I do not regard myself as bound on an application of this kind simply to accept the estimate that has been provided. That is not to suggest that the estimate is unreasonable or incorrect.

In a situation such as the present, the Court must balance the Court’s concern that a person complying with a subpoena should have an assurance of receiving their reasonable costs against the entitlement of the person issuing the subpoena to take advantage of the processes of the Court.

In relation to the subpoena to Mr Devine, doing the best I can, I will require Ms Penson to provide $1,300 by way of security for Mr Devine's reasonable costs of complying with the subpoena.

In relation to Mr Hoare, an estimate of his costs (including legal costs) is in evidence of $1,460 plus GST.

Approaching the matter broadly in the same way as I have to the subpoena addressed to Mr Devine, I will order Ms Penson to provide security in the amount of $1,000 in respect of Mr Hoare's reasonable costs of complying with the subpoena addressed to him.

The security amounts can be paid into Ms Perry’s firm’s trust account pending further order of the Court or the agreement of the relevant parties.

The Court's orders are: