Win over notice to produce not end for embattled IP

The Federal Court this week granted a liquidator’s application to have a notice to produce set aside and ordered the issuer to pay indemnity costs. Then the court reapplied the acid via discovery.

In setting aside the notice to produce the court also granted the issuer discovery, so the liquidator will still have to divulge much, though not all of the material the plaintiff initially sought via the notice to produce.

At the heart of the dispute is the plaintiff’s wish that the liquidator – Gavin Moss of Chifley Advisory begone.

The plaintiff, a creditor of Symich Building Pty Ltd (Symich), wants to replace Moss with Helm Advisory’s Stephen Hathway and has been minded to do so, possibly since the very day Moss was appointed on February 7, 2022.

The appointment came one day after Wisdom Business Consultants referred the job and Moss met with Symich’s director Darren Perich. He was appointed to related entity Perich Constructions Pty Ltd (PCPL) the same day.

According to Team Dreegan Pty Ltd v Moss, in the matter of Symich Building Pty Ltd [2024] FCA 636 the proceedings in the Federal Court followed the plaintiff’s failed attempts to replace Moss at creditors’ meetings on February 14, 2023 and on June 28, 2023.

At the latter meeting a voter deadlock on the replacement motion saw Moss decline to use his casting vote as chair and the motion failed.

The plaintiff commenced the current proceedings on July 12, 2023 and served a notice to produce shortly afterwards.

After the notice to produce was issued Moss’s legal advisors were a little slow to to identify its defects and so agreed to provide some of the material sought, specifically “copies of the proxies and proofs of debt and supporting documents received for the relevant meeting of creditors of Symich Building Pty Ltd”.

The court made orders on October 11 by consent, that Moss “produce to the plaintiff or otherwise provide discovery of the documents the subject of the notice to produce.

But on November 10 Moss’s 2023 the solicitor indicated “that upon further consideration he should not have consented to the order made on 11 October 2023”.

On hearing the subsequent submissions the court made orders providing a timetable for an application to set aside the notice to produce and for an application for discovery.

The real juice in this yarn will come once the plaintiff’s legal advisors decide what to do with the material Moss will have to divulge through discovery.

Schedule B of the judgment lists such enticing tidbits as: “Records of allegation that Messrs Ball and Calabretta were appointed ‘as a result of a fallout”; “Correspondence and file notes of discussions between Chifley Advisory and Symich’s ‘external accountant’, together with All Business Accounting Solutions Pty Ltd, 7 February 2022 to 6 May 2022 inclusive”; “Notes of ‘identified anomalies’ in Symich’s management accounts”; “Correspondence including emails between Chifley Advisory and Darren Perich, and file notes of discussions held with Daren Perich .. “about $400,000 alleged payment by Monica Perich.”