Haggerty v Sweeten

1. [1]

   This is an application, by Amended Notice of Motion filed in court today, to set aside a number of subpoenas directed to four banks and American Express requiring production of bank statements of Elizabeth Howatt (or ‘the applicant’).

2. [2]

   The applicant’s objection is that production would expose the “private affairs” of her and her late spouse.

Background

1. [3]

   This is a case between three plaintiffs and two defendants. The plaintiffs seek possession of a property situated at, and known as, Townhouse X, XX Thornton Street, Darling Point, NSW 2027 (‘the property’). This is on the basis that the plaintiffs are the trustees of a testamentary trust created by the will of the late Catherine Brown (also known as Catherine Haggerty). As such, by virtue of being trustees, they say they are entitled to be recorded as the registered proprietors of the property. The defendants occupy the property which the plaintiffs say they are not entitled to do.

2. [4]

   Put simply, by their defence, the defendants argue that they had entered into a lease agreement with the life tenant of the property, Christopher Brown, prior to his death which allowed them to remain in the property for 3 years. This was in return for them conducting renovations and project managing those renovations to the property. The precise date of the agreement is not particularised in the defence, but it appears to be alleged that it was formed in the first half of 2021. The defendants say there was a change in trustees to the current plaintiffs who have not recognised the existing lease agreement.

3. [5]

   There is also a cross-claim where, again put simply, the defendants allege that, if they fail in their claim for the right to occupy the property, they should be paid for the expenses they incurred in renovating the property or otherwise working upon it.

4. [6]

   A number of subpoenas were issued by the plaintiff in August 2022 – to the National Australia Bank, the ANZ Bank, the Commonwealth Bank of Australia, the Westpac Banking Corporation and American Express – seeking financial records for accounts held in the name of, among others, Elizabeth Howatt. Elizabeth Howatt was the spouse of the late Christopher Brown. The records sought production of financial records for the period from 1 January 2021.

5. [7]

   Given Elizabeth Howatt is a third party, the Practice Note SC CL 6, par 21 requires leave for her to put on a notice of motion. That leave was granted by Davies J on 20 October 2022, at which time the motion was set down for hearing before the Duty Judge on 28 October 2022.

The relevant principles: setting aside subpoenas

1. [8]

   The power to set aside a subpoena is contained in r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). That rule provides:

2. [9]

   When a person objects to the production of material (or access being given to it, if it is) because the disclosure of the material would impact upon their privacy, the approach taken by the Court is that as set out in Waind v Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372 (Waind v Hill). In that case, Moffitt P (at 384) said:

3. [10]

   In order to justify a subpoena as having been issued for a legitimate forensic purpose, it need only be shown that the documents sought are “apparently relevant”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] (‘Blacktown City Council’). Once this is demonstrated, as was stated by Cohen J in Read v Chang (2010) 44 Fam LR 198 at [8] (cited with approval by Black J in Re North Coast Transit Pty Limited [2013] NSWSC 1912 at [8]), any:

Consideration and disposition

1. [11]

   The terms of the subpoenas, which are accepted to be largely the same, would require production of the financial records of Elizabeth Howatt in both her personal capacity, as well as her capacity as one of the executors named in the will of the late Christopher Brown (although I note that whether she is an executor may well be contentious).

2. [12]

   In my view, apparent relevance is demonstrated or may “plausibly be seen to relate to an issue or issues” or to “cast light” on one or more of the following issues (Blacktown City Council at [57]) – namely: (a) the nature and the terms of the lease and any payments that might have been made to pursuant it; (b) in proving (as she has asserted) whether Elizabeth Howatt paid for costs relating to renovating the property or paid for work she arranged: if so, at a minimum, it would tend to deny the defendants' entitlement to claim it; and (c) the fact of those payments may tend to prove (or be some evidence of) the existence of the agreement that the defendants alleged was made with Mr Brown.

3. [13]

   In those circumstances, there being no other objection to it – such as the terms of it are too vague or oppressive – it should “not be set aside, nor should the inspection of documents produced be refused”: Blacktown City Council at [57].

4. [14]

   Finally, it was suggested that the Court should provide some restriction to the material because there may be some cross-over with proceedings in the Victorian Supreme Court. However, as each of the plaintiffs have confined or no involvement in those proceedings, there is no reason to think that the implied undertaking is insufficient to deal with this issue, if indeed there is one.

Orders

1. [15]

   For the above reasons I make the following orders:

   1. (1)

      Dismiss the amended notice of motion filed with leave in court on 28 October 2022.

   2. (2)

      Order Elizabeth Howatt pay the plaintiffs' costs of and incidental to the notice of motion as agreed or assessed, with such costs payable forthwith.