A-Civil Aust Pty Ltd v Ceerose Pty Ltd

The appeal concerned an interlocutory dispute between A-Civil Aust Pty Ltd (the applicant) and Ceerose Pty Ltd (the respondent) before the Court of Appeal of New South Wales. The core of the dispute involved an order made by a primary judge requiring the applicant to produce its MYOB financial records to the respondent. This order was made in the context of an adjudication under the *Building and Construction Industry Security of Payment Act 1999* (NSW) and an ongoing contractual dispute.

The legal issues before the Court of Appeal were whether the primary judge erred in ordering the production of the applicant's financial records and whether leave to appeal should be granted. Specifically, the court considered whether the purpose for which the records were sought had been adequately demonstrated and whether the primary judge had failed to consider the lack of such purpose when making the order. The court also had to determine whether the appeal raised an issue of principle and whether the production of the records was otherwise justified, particularly in light of the policy of the *Security of Payment Act* and the risk of insolvency of the claimant.

The Court of Appeal reasoned that the primary judge had erred by failing to advert to the lack of a demonstrated purpose for seeking the financial records. The court held that the production of such records was not justified without a clear and specific purpose, especially given the potential for interlocutory stays to undermine the statutory scheme of the *Security of Payment Act*. The court found that the appeal raised an issue of principle concerning the appropriate scope of discovery in such proceedings.

Consequently, the Court of Appeal granted leave to appeal, set aside the primary judge's order for the production of the MYOB file, and set aside paragraph 22 of the respondent's Notice to Produce. The court also ordered the respondent to pay the applicant's costs of the summons for leave to appeal and the appeal.