In the matter of Recycling Holdings Pty Ltd (in liquidation) (deed administrator appointed) ACN 123 236 573 (No 3)

HIS HONOUR: In my view, faced with the recalcitrance of the fourth defendant in responding to the notice to produce at all, and its belated response to paragraph 1 of the Notice to Produce, the plaintiff acted reasonably in making this application. The necessity for it could have been avoided had the fourth defendant done anything between December 2014 and the institution of these proceedings to respond to the notice and explain that it had no documents to produce.

Although the limited production achieved may have added nothing to the material otherwise available, that could and should have occurred at a much earlier time than it did. Although for a while I was attracted to the view that there should be no order as to costs of the motion, it seems to me that the fourth defendant’s recalcitrance in responding to it was the real cause for the application being made, and the fourth defendant should pay the costs of the interlocutory process.

The Court orders that the interlocutory process be otherwise dismissed, and that the first respondent/fourth defendant pay the applicant's costs of the interlocutory process.