Berhero Pty Ltd v Senibina Sentral Sdn Bhd

[2025] NSWSC 868

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Berhero Pty Ltd v Senibina Sentral Sdn Bhd [2025] NSWSC 868

Hearing dates:

5 May 2025

Date of orders:

7 August 2025

Decision date:

07 August 2025

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) As to the defendants’ lists of categories, the plaintiff is to give discovery to the defendants in the terms sought by the defendants in A1, A3, A6 (agreed), A7, A10 (agreed), A11, A12, A13, A15 (for the period from 1 April 2019 to 31 July 2021), A16 (agreed), A17 (agreed) and in the terms of all the categories in Annexure B (agreed). As to A14, the plaintiff is to give discovery to the defendants of any analyses of the plaintiff’s financial and business structure which cast light on the place of the interest rates which are from time to time are agreed to accrue on unpaid loans.

(2) Where sought by way of asterisk, the plaintiff is to produce the documents for which discovery has been ordered in native format.

(3) As to the plaintiff’s list of categories:

(a) The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 1, for the period of 25 February 2019 to 18 April 2019. The defendants are to give discovery of the documents sought in each of the subcategories. Categories 1(a), 1(b) and 1(d) are unlimited as to time. Category 1(c) is limited to the period of 25 February 2019 to 18 April 2019.

(b) The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 2, for the period of 3 December 2019 to 17 January 2020. The defendants are to give discovery of the documents sought in each of the subcategories. Categories 2(a) and 2(c) are unlimited as to time. Category 2(b) is limited to the period of 3 December 2019 to 17 January 2020.

(c) The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 3, for the period of 24 March 2020 to 27 March 2020. The defendants are to give discovery of the documents sought in each of the subcategories. Categories 3(a) and 3(c) are unlimited as to time. Category 3(b) is limited to the period of 24 March 2020 to 27 March 2020.

(d) The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 4, for the period of 3 July 2019 to 20 August 2020. The defendants are to give discovery of the documents sought in each of the subcategories 4(a), 4(b), 4(c), 4(d), 4(e) and 4(f) (unlimited as to time).

(e) The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 5, for the period of 3 July 2019 to 20 August 2020. The defendants are to give discovery of the documents sought in each of the subcategories 5(a) and 5(b) (unlimited as to time).

(4) Both parties are to give discovery within 28 days.

(5) Costs of the defendant’s Notice of Motion filed 14 March 2025 are costs in the cause.

(6) Costs of the plaintiff’s Notice of Motion filed 18 March 2025 are costs in the cause.

Catchwords:

CIVIL PROCEDURE — Discovery — Discovery by category — Discovery by issue

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Competition and Consumer Act 2010 (Cth), s 87CB(3), Sch 2 s 18

Uniform Civil Procedure Rules 2005 (NSW), rr 21.1, 21.2

Cases Cited:

Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205

Dunlop Pneumatic tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79

Hancock v Rinehart [2016] NSWSC 12

Lee v Belmore 88 Pty Limited [2025] NSWSC 96

Paciocco v Australia and New Zealand Banking Group Ltd (2018) 258 CLR 525

Philips Hong Kong Ltd v AG (Hong Kong) (1993) 61 BLR 49

Texts Cited:

D Heydon, Heydon on Contract (Reuters, 2019)

Category:

Procedural rulings

Parties:

Berhero Pty Ltd (Plaintiff/Cross-Defendant)

Senibina Sentral Sdn Bhd (First Defendant/Cross-Claimant)
Senibina Murni Sdn Bhd (Second Defendant/Cross-Claimant)
Padu Panglima Sdn Bhd (Third Defendant/Cross-Claimant)
Dato’ Sri Anne Teo (Foruth Defendant/Cross-Claimant)
Datuk Chris SW Low (Fifth Defendant/Cross-Claimant)
Lt Gen (R) Dato’ Sero Panglima Zaini Bin HJ Mohd Said (Sixth Defendant/Cross-Claimant)

Representation:

Counsel:
A Gandar (Plaintiff/Cross-Defendant)
D A Hughes (Defendant/Cross-Claimant)

Solicitors:
Farah Legal (Plaintiff/Cross-Defendant)
Swaab (Defendant/Cross-Claimant)

File Number(s):

2022/229200

Publication restriction:

Nil

JUDGMENT

Background

Pleading framework

Law of discovery

Defendants’ Notice of Motion

Categories relevant to representation and genuine lender claim

Category 1

Category 3

Category 4(b)

Category 5

Category 7

Category 8

Category 9

Categories relevant to penalty

Category 11

Category 12

Category 13

Category 14

Categories relevant to change of position claim (see paragraph 6(c) Defence to First Cross-Claim Statement of Cross-Claim filed 3 April 2023)

Category 15

The native format question

Plaintiff’s Notice of Motion

Category 1

Category 2

Category 3

Categories 4 & 5

Costs

Orders

JUDGMENT

1. This interlocutory judgment concerns two competing applications for discovery.

2. The plaintiff/cross-defendant in the substantive proceedings underlying this judgment is Berhero Pty Ltd t/as Acuity Funding, incorporated in Australia. Ranjit Thambyrajah (Mr Thambyrajah) is the plaintiff’s managing and sole director. The plaintiff is represented by A Gander of counsel. The plaintiff relied on the affidavit of Mr Thambyrajah, dated 16 October 2024 (RT-A), on the affidavit of Lankan Bal, dated 22 October 2024, and on the affidavit of Christopher Elias Farah, the plaintiff’s solicitor, dated 18 March 2025.

3. The defendants/cross-claimants are:

1. Senibina Sentral Sdn Bhd, incorporated in Malaysia;

2. Senibina Murni Sdn Bhd; incorporated in Malaysia;

3. Padu Panglima Sdn Bhd; incorporated in Malaysia;

4. Dato’ Sri Anne Teo;

5. Datuk Chris SW Low; and

6. Lt Gen (R) Dato’ Sero Panglima Zaini Bin HJ Mohd Said.

4. The defendants are collectively referred to as the defendants.

5. The defendants relied on three affidavits of Marc Richard Baddams, the defendants’ solicitor, dated 18 July 2023, 13 March 2025, and 28 March 2025. The defendants are represented by D A Hughes of counsel.

6. The parties relied on a joint court book (Exhibit A).

Background

7. The defendants are engaged in a large-scale development of land in central Kuala Lumpur. In order to fund this development, the defendants sought the services of the plaintiff, who conducts a commercial brokerage business (Acuity Funding).

8. Mr Thambyrajah says that he holds various qualifications in mortgage broking, finance and real estate. He also holds an ‘Associate Diploma Divinity and Missions’ from Sydney Missionary and Bible College. In April 2024 he says that he was awarded a PhD in Economics by the University of Burundi, located in Bujumbura, Burundi.

9. The principal agreements were apparently entered into in April and May of 2019, with variations apparently concluded in early 2020. For the purposes of this application only, they comprise the following documents:

1. Loan Term Sheet, executed on or about 18 April 2019 (CB25-31) (Loan Term Sheet);

2. Costs Agreement associated with the Loan Term Sheet, executed on or about 18 April 2019 (CB32-41) (Costs Agreement);

3. Deed of Variation in Respect of the Agreement, executed on or about 17 January 2020 (CB47-49) (Deed of Variation); and

4. Commission Letter executed 27 March 2020.

10. Under the terms of the agreement, the plaintiff was to secure for the defendants an offer for funding amounting to approximately USD 210,000,000 or Malaysian Ringgit 535,000,000.

11. Consideration (styled ‘brokerage fee’) for the plaintiff’s services was in the main composed of payment of

“1.5% plus GST of the loan amount … PLUS 3.5% of gross profit from project [that is the development in Kuala Lumpur] before tax and after all costs inclusive of capital injection by borrowers and guarantors. This will be secured by transferring 3.5% of the shares in Seni Bina Sentral SDN BHD and Seni Bina Murni SDN BHD to Berhero Pty Ltd, when brokerage fees become due and payable” (Loan Term Sheet cl 12).

12. Clause 4 of the Costs Agreement is central to this dispute. It stipulates when the consideration described above falls due. It relevantly states:

“On the signing of this agreement, the Applicants [the defendants] will pay to the facilitator [the plaintiff] a non refundable Processing Fee in the sum set forth in clause 11 of the Loan Term Sheet (“Processing Fee”). In the event that the loan is conditionally approved to the Applicants, or a discussion paper is issued or a terms sheet is issued or a loan proposal is issued in the terms of the Loan Term Sheet, then the Brokerage Fee set forth in clause 12 of the Loan Term Sheet (“Brokerage Fee”) shall become immediately due and payable by the Applicants to the facilitator.

All such letters issued by the underwriter and which is in terms of the loan term sheet but which is subject to: a) an acceptable valuation; and b) satisfactory credit checks of the Applicants; and c) proof of suitable serviceability; and d) acceptance by the Underwriter; and e) verification of all documentation provided; and f) acceptable levels of pre sales, being between 75% and 120% of debt cover; and g) satisfactory proof of set-up debts to be repaid; and h) a builder and project manager acceptable to the underwriter being appointed; and i) sufficient proof of serviceability via management agreements and tri-partite agreements with the management company; and; j) management agreements and tri-partite agreements with the management company satisfactory to the funds provider/lender k)any further condition or covenant that the underwriter may deem applicable to this transaction. [sic]

No brokerage fee will be due if there are any variations to the loan term sheet and costs agreement unless agreed to by the borrowers in writing.

If the brokerage fee is not immediately paid to the facilitator then interest will accrue on the brokerage fee at 2% per month, calculated daily and compounded and capitalised at the end of each month, from the date that the fees become due and payable (“interest”) and the applicants will be liable to pay the interest to the facilitator on the brokerage fee until the whole of the amount due and payable including interest is paid by the Applicants to the facilitator.”

13. Counsel for the defendants summarised the obligation as ‘the idea is that if I get you a piece of paper you have to pay me 1.5% plus 24% per annum interest’ (T28 [22]-[23]).

14. On or about 3 July 2019, the defendants were provided with a funding proposal from Global Wise Investments Pte Ltd (Global Wise) purporting to lay out the terms of a potential loan of USD 210,000,000 to the defendants (CB42-46). On 12 February 2020, the defendants were provided with a second proposal from Global Wise in similar terms (CB50-57). On 10 March 2020 defendants were provided with a third proposal from Global Wise also in similar terms (CB60-68). The defendants never received any funds from Global Wise.

15. On or about 20 July 2021, the plaintiff issued an invoice to the defendants for the Brokerage Fee (USD 3,150,000). On 6 December 2021, the plaintiff reissued the invoice and also a letter of demand.

16. According to a search (CB558-563) obtained from Singapore’s Accounting and Corporate Regulatory Authority (analogous to the Australian Securities & Investments Commission), Global Wise had on 14 July 2023 a paid-up share capital of SGD 100 (CB559). Global Wise had two directors, Bal Lankan, an Australian citizen and deponent, and Felicia Tham Li Ling (Ms Tham), a Singaporean citizen.

17. This search does not list Global Wise as a lender, under the title ‘Business Activities’ it’s ‘Primary Activity’ is listed as ‘WHOLESALE TRADE OF A VARIETY OF GOODS WITHOUT A DOMINANT PRODUCT’ (CB558). A private investigator’s report (CB582–593) commissioned by the defendants and conducted by EXELLAR (Malaysia) Sdn Bhd stated that, according to sources, ‘[Global Wise] appeared to be managed remotely from Australia’ (CB587). Another human source mentioned in the investigative report said that Global Wise

“does not have activity in Singapore and [is] not known among local industry sector players … [Global Wise] was only using the Singapore address to piggyback on Singapore’s status as a regional financial hub to operate and do business in this part of the world” (CB587).”

18. On 18 April 2022, Singaporean solicitors of TSMP Law Corporation (TSMP) acting for the defendants seem to have hand delivered a letter to the offices of Global Wise to the attention of Bal Lankan and Ms Tham (CB575-577).

19. Following this email, two phone calls occurred between a solicitor of TSMP and Ms Tham (22 April 2022 and 26 April 2022) (CB579).

20. On 27 April 2022, Ms Tham responded by way of email to TSMP in the following words (CB578):

“…

I am Felicia Tham ,the local director for Global wise.I am a nominee director in the company ,Bal the foreign director engage my service through a secretary firm.I do not involve in the business activities.I have already tender my resignation on 18 April 2022 to him and now waiting for him to get someone replace my position.

…”

21. On 29 April 2022, solicitors from TSMP responded by email to the email of Ms Tham (CB579-580).

22. On 10 May 2022, Lankan Bal wrote to TSMP informing them that the defendants lost the benefit of the proposed funding because they failed to meet certain conditions precedent (CB581).

Pleading framework

23. It is now necessary to briefly set out the pleading framework.

24. On 5 May 2023, the plaintiff filed an amended Statement of Claim (ASOC). It seeks relief of over $6,500,000 for breach of contract, primarily composed of the Brokerage Fee and interest (at 2% per month as stipulated in cl 4 of the Costs Agreement) (ASOC [30]-[36]). The plaintiff also pleads that it is entitled to have 3.5% of the shares in the first, second, and third defendants transferred to it (ASOC [37]).

25. On 31 May 2023, the defendants filed a Defence to the amended Statement of Claim (D-ASOC) where they pleaded that:

• the formation of the contracts was governed by the law of Malaysia and that under that law the contracts were a nullity because they were only executed by one director, instead of two (D-ASOC [11]);

• it was an implied term of any contract that any contemplated offer for funding be ‘genuine’ (styled the ‘Genuine Lender Term’) (D-ASOC [17]);

• that an interest rate of 2% per month is in any case void as a penalty (D-ASOC [18]); and

• that the plaintiff had engaged in misleading or deceptive conduct in breach of s 18 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (ACL) by representing that the offer from Global Wise was a genuine offer (D-ASOC [21A]).

26. On 21 November 2022, the defendants filed a ‘First Cross-Claim Statement of Cross-Claim’ (XC) seeking that the documents listed at [8] of this judgment, to the extent that they are operative at law be declared of no effect from their inception under ss 237 and 243 of the ACL (XC [1]).

27. On 3 April 2023, the plaintiff filed a Defence to the XC (D-XC). It resisted the defendants’ substantive pleadings but pleaded in the alternative that if the defendants succeeded in their claim under the ACL, Global Wise was a concurrent wrongdoer (and hence apportionably liable) under s 87CB(3) of the Competition and Consumer Act 2010 (Cth) (D-XC [5]). It also sought to have any damages awarded for misleading or deceptive conduct reduced for contributory fault (D-XC [5b]).

28. On 14 March 2025 the defendants filed a Notice of Motion (N/M-D) seeking discovery under r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). They sought discovery in several supercategories relating to the issues as pleaded. They sought many documents to be discovered in their native digital format. Copies of some those documents have already produced in an approximately 6,000-page exhibit of the plaintiff’s (referred to in the parties’ court documents as RT-1). There is a question of whether those documents produced in the exhibit are ‘excluded documents’ for the purposes of Pt 21 Div 1 of the UCPR.

29. On 18 March 2025 the plaintiff filed a Notice of Motion (N/M-P) seeking discovery under r 21.2 UCPR discovery in a similar manner, that is, organised by reference to issues identified by the pleadings. However, it also recognised categories of documents.

30. The parties have, by agreement, limited the documents sought on discovery. The issues that remain for discovery are whether discovery of certain limited categories should be ordered and whether the order of other categories should be framed by a time period. It is necessary to have regard to the fact that the power invoked is to be exercised so as to facilitate the just, quick, and cheap resolution of the real issues in the proceedings: Civil Procedure Act 2005 (NSW) s 56.

31. I will deal in turn with each category that is still in dispute, then I will briefly summarise the parties’ contentions, followed by my resolution.

Law of discovery

32. Rules 21.1­­­–21.8 of the UCPR govern discovery. The relevant sections read:

21.1    Definitions

(1)   In this Division—

excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents—

(a)    any document filed in the proceedings,

(b)   any document served on party A after the commencement of the proceedings,

(c)   any document that wholly came into existence after the commencement of the proceedings,

(d)   any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,

(e)   any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents,

but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings.

list of documents means a list of documents referred to in rule 21.3.

…

(2)   For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

21.2      Order for discovery

(1)    The court may order that party B must give discovery to party A of—

(a)    documents within a class or classes specified in the order, or

(b)    one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2)   A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3)    Subject to subrule (2), a class of documents may be specified—

(a)   by relevance to one or more facts in issue, or

(b)    by description of the nature of the documents and the period within which they were brought into existence, or

(c)    in such other manner as the court considers appropriate in the circumstances.

(4)    An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

Defendants’ Notice of Motion

33. The N/M-D was first in time so I will deal with it first. By the time of the proceedings, the categories still sought by the defendants were summarised in an Aide Memoire (CB739-741). That Aide Memoire was divided into an Annexure A and an Annexure B; the categories listed in Annexure A were contested by the plaintiff whereas Annexure B was agreed except as to the native format issue. When dealing with the N/M-D, ‘A1’ will refer to category 1 of Annexure A, and ‘B1’ will refer to category 1 of Annexure B and in seriatim to the rest of the documents sought in Annexure B.

33. Annexure B is as follows. The asterisks indicate that the native format of the documents is sought.

Annexure B (agreed)

1.   All Documents being, recording or referring to communications in the period from 1 February 2019 to 31 December 2021 between Berhero and Global Wise concerning the Land, the Project, the Defendants (or any of them), or the possible funding of the Project.*

2.   All Documents being, recording or referring to communications in the period from 1 February 2019 to 31 December 2021 between Berhero and any one of Siew Man Chia and David Chan concerning the Land, the Project, the Defendants (or any of them), or the possible funding of the Project.*

3.   All Documents recording consideration in the Period by Berhero of the ability of Global Wise to fund the Proposals.*

4.   All drafts and final forms created in the period from 1 February 2019 to 31 December 2021 of any funding proposal, credit submission, white paper, or similar document prepared by Global Wise in respect of the Land, the Project or the Defendants (or any of them) *

5.   Any Written Communication in the period from 1 February 2019 to 31 December 2021 referring to or attaching a document falling within category 4 above.

6.   All Documents created, or received by Berhero in, the period from 1 February 2019 to 31 December 2021 recording or referring to the source or proposed source of funds for the Proposals *

7.   All Documents (including but not limited to Written Communications) between Global Wise, Berhero, Ranjit Thambyrajah, Bal Lankan, evidencing or referring to Global Wise's ability to provide funding for the Proposals in the period from 1 February 2019 to 31 December 2021 *

8.   All Documents including meeting notes recording or referring to the events of the meetings with the defendants between 22 to 24 May 2019 referred to at paragraphs 76 to 90 of the affidavit of Ranjit Thambyrajah sworn 16 October 2024.

9.   All Documents including meeting notes recording or referring to the events of the meetings with Chris Low in August 2019 referred to at Exhibit RT-1 page 1550-1557.

10.   All drafts created or dated in the Period of any funding proposal (including each Proposal) in relation to the Project or the Land *

11.   The original or native format of the Bank of Ireland bank statement referred to at paragraph 148 of the affidavit of Ranjit Thambyrajah sworn 16 October 2024*

12.   The original or native format of the bank confirmation letter from the Commercial Bank of Qatar referred to at paragraph 198 of the affidavit of Ranjit Thambyrajah sworn 16 October 2024.

13.   The email referred to in point 7 on page 69 of Exhibit RT-1.

14.   Documents recording or constituting the request for information referred to in the email from Christine Stephens dated 1 July 2019 at Exhibit RT-1 page 1417.

15.   Documents recording or referring to the basis for the assertion that "the Funder" is "growing very impatient" in the email at Exhibit RT-1 page 1558.

16.   Documents recording or referring to the basis for the assertion that "the lender doesn't understand why the offer hasn't been accepted. They know it is a very good finance offer. They have a lot of competing demand for their funds currently" in the email at Exhibit RT-1 page 1537.

17.   Documents recording or referring to the meeting with "the lender" in the email at Exhibit RT-1 page 1564.

18.   Documents recording or referring to the basis for the assertion that "Timing is now critical on your project" at Exhibit RT-1 page 1565.

19.   Documents recording or referring to the basis for the assertion that "we need to finalise your file within 48 hours" in the email Exhibit RT-1 page 1566.

20.   All documents in the period from 1 February 2019 to 31 December 2021 referring to the relationship between Maybank and Global Wise.

21.   An unredacted copy of the email at page 1538 of Exhibit RT-1.

35. Annexure A is as follows. These categories are grouped under headings in bold. A2 is no longer pressed (T23 [44]). A4(a) is not pressed (T25 [6]). A6, A10, A16 and A17 are agreed to. These categories have been omitted from the list below.

Annexure A

Categories relevant to Representation and Genuine Lender Claim

1.   All Documents created by the plaintiff, or relied on by the plaintiff, in the course of procuring each Funding Proposal.*

…

3.   All Documents and Written Communications in relation to the engagement by Behero, Global Wise and the Defendants of Foong & Partners as pleaded at paragraph 29 of the ASOC.

4.   All Written Communications from Berhero to Global Wise forwarding, or referring to, the information received by Berhero in:

…

(b)   the email of 4 February 2020 at Exhibit RT-1 page 1667.

5.   Documents created by Berhero containing analysis of the information provided onto lender to Berhero in the emails referred to in category 4.

6.   Documents recording or referring to the basis for the assertion as to the costs to "the Funder" referred to in the second last bullet point of the email at Exhibit RT-1 page 1549.

7.   Documents listing the Telephone Calls (including time, date and counterparty) made by Ranjit Thambyrajah to Lankan Bal in the Period, and any notes of such calls insofar as they relate to the Land, the Project, the Defendants (or any of them, or the possible funding of the Project.

8.   The five messages prior to and after the text from Lankan Bal to Ranjit Thambyrajah sent on 21 November 2019 and extracted at RT-1 p 1618.

9.   Any Documents relating to the "African Power Industry" referred to at paragraphs 139 to 145 of the affidavit of Ranjit Thambyrajah sworn 16 October 2024.

Genuineness of March 2020 Proposal

10.   The communication by which the signed copy of the funding proposal dated 10 March 2020 from Global Wise was conveyed from Global Wise to Berhero or, if conveyed in person, the original signed copy.

Categories relevant to penalty

11.   For the period 1 January 2017 to 20. March 2020, Documents:

(a)   recording or referring to Berhero's borrowing costs;

(b)    recording or considering the costs to Berhero of late payment of any brokerage fee; and

(c)    management accounts maintained by Berhero.

12.   All financial statements of Berhero in the period 30 June 2018 to 30 June 2020.

13.   Berhero's tax returns for the financial years 30 June 2018, 30 June 2019 and 30 June 2020.

14.   All Documents, whenever created, recording the reason for, or consideration of, the interest rate for unpaid brokerage fees in Berhero's brokerage agreements.

Categories relevant to change of position claim (see paragraph 6(c) Defence to First Cross-Claim Statement of Cross-Claim filed 3 April 2023)

15.   All Documents, including any time sheets, demonstrating that the plaintiff performed work at the request of the defendants.

Documents necessary to understand Plaintiff’s evidence

16.   An unredacted copy of the full email chain partially extracted at page 2068 of Exhibit RT-1.

17.    Each email described as having been “removed” (in paragraphs [137] and [138] of the affidavit of Lankan Bal dated 24 October 2024) from the bottom of an email chain extracted in Exhibit LB-1.

36. As will become apparent, the plaintiff resists many categories in Annexure A on the basis that they are redundant and caught by the agreed Annexure B (T51 [7]-[10]). In response, the defendants say that to the extent that there is any overlap, ‘there’s no prejudice… the prejudice is minimum’ (T62 [10]-[12]).

Categories relevant to representation and genuine lender claim

37. The defendants say that documents from these categories shed light on whether the plaintiff was of the view that Global Wise was a genuine lender (T41 [48]-[49]).

Category 1

38. The plaintiff submitted that all of the relevant correspondence and supporting documents sought by A1 will be caught by B1 and A1 will capture much that is irrelevant (T51 [44]-[48]): “[A1] is redundant, but potentially captures irrelevant documents, and so it’s just unnecessary and shouldn’t be allowed” (T52 [7]-[8]).

39. A1 is significantly broader than B1. B1 captures only communications between the plaintiff and Global Wise. A1 seeks “[a]ll Documents created by the plaintiff, or relied on by the plaintiff, in the course of procuring each Funding Proposal.” It is my view that any surplus of documents caught by A1 over B1 will go centrally to the defendants’ claim for breach of contract and for misleading or deceptive conduct.

40. As to breach of contract, it will shed light on the question of whether the plaintiff fulfilled the obligations imposed by the ‘Genuine Lender Term’, which the defendants say arises by implication (D-ASOC [17]) — for example, an internal memorandum analysing Global Wise’s capacity to produce USD 210,000,000. The same documents will also shed light on the question of whether the plaintiff engaged in misleading or deceptive conduct.

41. I agree that there will be a large overlap between B1 and A1, it is my opinion that the surplus captured by A1 will likely be relevant to and probative of the defendants’ cross-claim.

42. Hence, I make an order for discovery in accordance with the defendants’ Notice of Motion for category A1.

Category 3

43. Foong & Partners were a Singaporean law firm commonly retained by the parties. It was engaged by the plaintiff to draft the loan agreements. The defendants allege that this retainer of Foong & Partners by the plaintiff amounted to a representation as to the genuineness of the loan proposal (T33 [34]-[40]). Because they are commonly retained, the defendants say that there cannot be any issue of client legal privilege (T44 [26]-[27]).

44. The plaintiff submitted that A3 is also redundant, as the same documents are captured by B1 (T52 [29]-[40]). The defendants submitted that

“[t]he extent of communication by the lender with its own lawyers about the loan documents sheds light on whether the lender was genuine, and whether the plaintiff had reasonable grounds for suggesting that it was genuine” (T62 [23]-[26]).

45. While there may be a large overlap, the communications between the plaintiff and its solicitors relating to the funding proposal are relevant to the substance of the defendants’ cross-claim. For example, there may be a document from Foong & Partners suggesting that the plaintiff take certain precautionary steps or inquiring of them as to Global Wise’s lending capacity. Such a document would not be caught by B1 and would clearly be highly probative of the defendants’ case.

46. In Hancock v Rinehart [2016] NSWSC 12 at [7] Brereton J stated:

“To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made (Gardner v Irvin (1878) LR 4 Ex D 49, 53), or in other words ‘expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable’ (National Crime Authority v S (1991) 100 ALR 151, 159 (Lockhart J)). The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed (Lazenby v Zammit [1987] Tas R 54, 56 (Green CJ and Wright J); see also Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500, 508 (Gibbs CJ); Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278, 1286 (Davies J)), and must do so by admissible direct evidence, not hearsay (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 513-4 (Brennan CJ)).”

47. Here, the plaintiff has not attempted to establish privilege over any of the Foong & Partners documents. For this reason, it is my view that for the purposes of this proceeding the documents caught by A3 are not protected by client-legal privilege.

48. I make an order that discovery of the documents sought in A3 is to be given by the plaintiff.

Category 4(b)

49. The plaintiff submitted that A4(b) could be agreed, but that it is ‘plainly redundant because it’s a subset of category B1’ (T52 [39]-[40]).

50. As A4(b) is a subset of category B1, I make no order for discovery of documents in A4(b).

Category 5

51. The plaintiff says that A5 seeks irrelevant documents (T52 [46]-[47]).

52. I do not agree with the plaintiff’s submission. However, A4 has fallen away and, in any event, A5 also seems to be a complete subset of B1.

53. Hence, I make no order for discovery in accordance with A5.

Category 7

54. The defendants submitted that phone records are necessary because of the paucity of documentary evidence: “we actually need to know how many times these people phone each other in the period because there’s just nothing else” (T45 [10]-[12]). The plaintiff resists this contention saying that “there is an enormous volume of documentary material in evidence in this case” (T50 [15]-[16]) with the total number of documents being “much greater than 469” (T50 [34]-[35]). In response, the defendants say that “there are important gaps at the critical time” (T62 [16]), “where it matters … there’s nothing” (T62 [13]-[16]); and “some of the 6000 pages might generously be called guff” (T64 [48]-[49]).

55. The plaintiff says that A7 is also unnecessary because “if there are file notes of telephone calls between Mr Thambyrajah and Mr Bal … they will be produced under B1” (T53 [5]-[8]). It goes on:

“A7 seems to be asking for a document to be produced, that is for my client to go through his email, his telephone records and create a list for them. It’s not the sort of document that generally exists. And so to the extent that there’s a question about what was said on all of these calls, the meeting notes will be produced under B1 anyway…” (T53 [19]-[24]).”

56. In response, the defendants say that they are not asking the plaintiff to prepare a list or create any documents (T62 [36]-[37]) as “usually a phone bill contains a list” (T62 [37]-[38]).

57. I agree with the defendants’ submissions. The frequency and timing of phone conversations between Mr Thambyrajah and Lankan Bal are relevant and will assist in understanding the interactions leading to provision of the offers. The phone records and any notes of them could be relevant to ascertaining whether the plaintiff discharged its obligation under the proposed Genuine Lender Term and whether the plaintiff engaged in misleading or deceptive conduct.

58. An order for discovery of documents in category A7 will be made.

Category 8

59. The plaintiff says that if the five messages preceding and following the one extracted are relevant, they will be produced under B1, and so A8 is unnecessary (T53 [22]-[24]).

60. I agree with the plaintiff’s submission. It is noted that the messages, if relevant, will also likely be captured by B7.

61. Hence, an order for discovery of documents in category A8 will not be made.

Category 9

62. As to the supposed funding of the ‘African Power Industry’, the defendants seek documents which will help them understand if there is any documentary evidence to support the belief that Global Wise or Lankan Bal was responsible for this funding (T45 [33]-[35]).

63. In his affidavit dated 16 October 2024, Mr Thambyrajah deposed:

“[139] On a date I cannot specifically recall, but I believe after introducing the KL Sentral Development to Lankan, Lankan and I had a conversation to the following effect:

I said:      “Do you fund power projects?”

Lankan said:   “Yes”

[140] Lankan then showed me a photo of an electricity grid on his mobile phone and said words to the effect of: "We are funding this".

[141] On a separate occasion, Lankan said words to the effect of: "Me and my group are involved in developing and funding parts of the electricity grid in North Africa.

[142] More recently, the exact date I cannot recall but within the last 12 months, Lankan told me that he was a shareholder in an African energy company.

[143] On another separate occasion, the exact date I cannot recall, Lankan and I discussed an issue with a transaction he said he was funding in Africa. We had a conversation to the following effect:

Lankan said: “A great deal of money that we transferred toward a power project in Africa has been lost in a corresponding bank. We need to track it down”.

[144] On a separate occasion, Lankan and I had a conversation to the following effect:

Lankan said: “We recovered the lost money in Africa. You need to finalise your SWIFT membership and get Alliance Lite 2 software. You can facilitate those types of transactions”.

[145] Lankan's issue with the lost money in Africa was one of the reasons Lankan encouraged me to obtain a SWIFT membership for Acuity as referred to in paragraph 17 …”

64. The defendant says to the extent that the documents sought are under A9 are relevant, they will be caught by B1, so it too is irrelevant (T53 [28]-[33]).

65. It is not certain that A9 is a subset of B1, however, I note that I will be making an order in the terms of A1 as proposed. A9 is a sub-set of A1 and so A9 is now unnecessary.

66. Hence, an order for documents in category A9 will not be made.

Categories relevant to penalty

67. The main contention regarding the categories relevant to penalties relates to the appropriate time periods. The defendants say that since the Commission Letter was the last apparent contractual document executed by the parties, that is the date that the inquiry as to penalties ceases (T31 [16]-[17]). The defendants are looking for financial statements and management accounts to determine whether an interest rate of 24% per annum is a penalty clause (T31 [34]-[36]). They rely on Paciocco v Australia and New Zealand Banking Group Ltd (2018) 258 CLR 525 (‘Paciocco’) which they say is authority for the proposition that determination of whether a contractual obligation is unenforceable as a penalty involves an analysis of the obligee's internal structure and operating costs: “what's needed to understand penalty is the documents that will give my client a good understanding of the plaintiff's business model” (T46 [8]-[11]). In oral submissions it also relied on Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 (‘Andrews’) to the same effect.

68. The plaintiff says that the Variation Deed or Commission Letter are irrelevant to the determination of the penalty issue because there is no allegation that there are penalty provisions in the Variation Deed or Commission Letter (T54 [16]-[19]). As was submitted orally, “the question of whether there's a penalty in the cost agreement is a matter of construing the cost agreement at the time it was entered into, and that is on 18 April 2019” (T54 [20]-[22]).

69. The defendants first agreed with and accepted this contention (T54 [31]-[33]) but later reneged. The defendants say that it is an issue in the case whether the later documents (the Variation Deed and Commission Letter) form part of the parties’ contract and therefore bear on the question of a penalty (T63 [12]-[18]). The defendants also seek discovery over the longer time frame on another basis, namely that the date of the final contractual execution is not determinative because the inquiry as to whether a contractual obligation is penal can range broadly over the business. The relevant questions are: “What are the losses they [the plaintiff] suffer if someone pays a commission late? What are the losses they suffer from lateness? That’s what the law of penalties is concerned with” (T63 [41]-[44]).

70. In Dunlop Pneumatic tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 (‘Dunlop’) at 86-87, Lord Dunedin stated:

“The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach (Public Works Commissioner v. Hills [[1906] AC 368] and Webster v. Bosanquet [[1912] AC 394]).”

71. This view has found support in many Anglo-Australian judgments (see D Heydon, Heydon on Contract (Reuters, 2019) at 979 n 497 (‘Heydon on Contract’)). Dunlop was considered extensively in both Andrews and Paciocco but was not controverted in either decision. Without deciding the question of proper time of construction, which was not argued before this Court, and which is complicated by the allegation of multiple relevant contractual documents, it may be enough to look to what the Privy Council said in Philips Hong Kong Ltd v AG (Hong Kong) (1993) 61 BLR 49 at 59:

“[t]he fact that the issue has to be determined objectively, judged at the date the contract was made, does not mean that what happens subsequently is irrelevant. On the contrary it can provide valuable evidence as to what could reasonably be expected to be the loss at the time the contract was made” (quoted in Heydon on Contract at 59).

72. It is my view therefore that although not determinative, far from being irrelevant, documents recording the plaintiff’s structure and expenditure after entry into the contract may be highly probative of the facts necessary to dispose of the penalty question. However, ultimate determination of this matter will fall elsewhere.

73. For this reason, whatever the case may be, I do not accept that the relevant time period is by necessity limited in the way urged by the plaintiff.

Category 11

74. The plaintiff submits that the period in A11 should end on 18 April 2019 (T54 [25]-[26]). The plaintiff proposes limiting the range to the 2019 financial year, being 1 July 2018 to 30 June 2019 (T55 [8]-[16]).

75. An order for A11 in the terms sought by the defendants will be made.

Category 12

76. A12 seeks all the plaintiff’s financial statements over three financial years. The plaintiff consents to providing the documents for the 2019 financial year (T55 [31]-[33]). The plaintiff states that documents relating to the 2020 financial year come after the execution of the contract and so are irrelevant (T55 [33]-[35]).

77. An order for A12 in the terms sought by the defendants will be made.

Category 13

78. A13 seeks all the plaintiff’s tax returns over three financial years. The plaintiff consents to providing only the tax returns for the 2019 financial year (T55 [33]). It says that tax returns for the 2020 financial year are irrelevant (T55 [33]-[35]).

79. An order for A13 in the terms sought by the defendants will be made.

Category 14

80. The plaintiff resists A14 in its entirety. As it refers to all clients and is not limited by time, it captures far more documents than is necessary for the defendants to run their case (T55 [37]-[43]).

81. It is likely that the number of documents caught by this category, if any, are few. It risks generating irrelevant documents because it seeks, it seems to me, disclosure of the plaintiff’s subjective view on one of its contractual terms. The objective theory of contract which is embodied by the common law says that such views are irrelevant.

82. The question of whether a contractual clause is penal is one which is answered by reference to objective matters.

83. Insofar as the category seeks analyses of the plaintiff’s financial and business structure (either by the plaintiff itself or a third party), it would be speculation to say whether or not such documents exist. However, such a document may be of assistance to the defendants’ case and is therefore probative.

84. An order for A14 in the terms sought by the defendants will not be made. In lieu, the order will be confined to any analyses of the plaintiff’s financial and business structure which cast light on the place of the interest rates which are from time to time contracted to accrue on unpaid loans.

Categories relevant to change of position claim (see paragraph 6(c) Defence to First Cross-Claim Statement of Cross-Claim filed 3 April 2023)

Category 15

85. The defendants seek discovery of time sheets to determine what work the plaintiff did for them.

86. The plaintiff opposes this category on the basis that it is not limited by time (T55 [44]-[45]). It seeks “all documents” in circumstances where the plaintiff does not use time sheets in its business, so none exist (T56 [1]-[12]). This category is too broad even if time limited (T56 [14]-[17]). Such a broad class of discovery is unnecessary to confirm that work was done (T56 [21]-[30]). The plaintiff says that this category in effect “seeks every single document” the plaintiff has (T56 [6]-[7]).

87. The defendants accepted that April 2019 to July 2021 would be suitable to them (T46 [32]-[38]). April 2019 was when the agreement was first signed and July 2021 is the point at which, to use counsel’s words, the defendants realised they “had been taken for a ride” (T46 [37]).

88. While A15 is cast in very broad terms and would render other categories, or parts of other categories (such as A1, A3, and many of the categories in Annexure B) redundant, and while the plaintiff says that it does not use time sheets, it would otherwise be difficult to ascertain what work the plaintiff did for the defendant and on what basis it charged the defendant.

89. With the limitation of the time period from 1 April 2019 to 31 July 2021, I will make an order in accordance with A15.

The native format question

90. The plaintiff resists the request for the native format documents on the grounds that it would be burdensome. It says that many of the documents sought have already been produced in the plaintiff’s 6,000-page exhibit. The plaintiff states (Plaintiff’s Written Submissions in Response [10]-[12]):

“[10]   The effect of the declaration sought by the defendants would be to require the plaintiff to review every document in the 5,899 pages of exhibits to Mr Thambyrajah's and Mr Bal's affidavits to determine whether any of those documents, which have already been served, fall within the asterisk marked categories of discovery. Then, any such documents which do fall within those categories would have to be located in native format and disclosed. The plaintiff's solicitor estimates that this exercise will cost the plaintiff at least $35,000 or more and take 3 weeks or more: Farah [51]-[61].

[11] The only submission advanced by the defendants in support of the declaration is that "the sequence of documents" suggests there are "errors or misdescriptions in the plaintiff's evidence of the electronic communications" which the defendants wish to test by checking the underlying metadata: DWS [27]. A solitary document is identified in support of this submission, being the Global Wise funding proposal dated 3 July 2019 (First Proposal) at RT-1 pages 1458 - 1459: DWS [25]. The evidence of Mr Thambyrajah in [160]-[166] explains that the First Proposal was sent to the defendants on 5 July 2019, that on 6 July 2019 the defendants' agent KB Lim identified several typographical errors and sent an extract of the First Proposal with the errors highlighted back to the plaintiff, and the plaintiff then passed on the defendants' highlighted extract to Mr Bal: see RT-1 pages 1455-1459. Mr Thambyrajah goes on to explain in [167]- [168] that an amended First Proposal was prepared by Mr Bal and sent to Mr Thambyrajah on 7 July 2019 and the plaintiff issued the amended First Proposal (albeit still dated 3 July 2019) to the defendants on 8 July 2019.

[12] The defendants have identified no rational reason to put the plaintiff to the time and expense of undertaking this task. All that is said is that the defendants wish to test the presence of errors or misdescriptions in documents produced by the plaintiff or by Mr Bal by checking the underlying metadata to verify when communications were sent. This could only be a matter relating solely to the credibility of a witness. It follows that the native format versions of documents sought by the defendant, including those already served in evidence, are not documents that are relevant to a fact in issue within the meaning of Part 21 Div 1 of the UCPR: r 21.1(2). The declaration would therefore be contrary to the express prohibition against making an order for discovery in respect of a document that is not relevant to a fact in issue: UCPR r 21.2(4). It would also be contrary to the case management principles in ss 56-58 of the Civil Procedure Act 2005.”

91. However, the plaintiff does not resist production of the native format documents which have not already been produced (T56 [39]-[40]); and it wouldn’t be disposed to resist a notice to produce seeking the production of “critical” documents in native format (T57 [16]–[19]).

92. The defendants say that the plaintiff’s analysis of the process and estimation of costs are curious: “if the process was done in the normal way, none of these costs would need to be incurred … one would not need to spend much time looking at the exhibit” (T47 [23]-[24], [32]-[33]). The defendants insist that they do not ask for the native format of all documents in the exhibits to the affidavits, but only of documents which are discoverable (T64 [37]-[39]).

93. As a matter of principle, it cannot be the case that a party be able effectively to immunise themselves from discovery of documents in their ‘native format’ by anticipating any such order and handing over physical documents by way of affidavits, exhibits or other means (I do not suggest that the plaintiff had done this).

94. The significant matter guiding the court’s discretion here is the need to exercise the power to order discovery with a view to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

95. The defendants’ submissions are persuasive. On the one hand, if the plaintiff attempts to give discovery by reference and having regard to the exhibit, it may very well be burdensome on account of the amount of time that would be consumed. On the other hand, if the plaintiff starts afresh the process of giving discovery, I do not see there being any greater burden providing the documents in their digital native format as opposed to hardcopy.

96. If the plaintiffs seem to be aware of the identity of the native format documents, they should produce them in that form. These documents need to be produced on discovery.

Plaintiff’s Notice of Motion

97. The N/M-P was filed 4 days after the N/M-D and is similarly formatted. However, it is not divided into an ‘agreed category’ and a ‘contested category’. The original list of categories sought by the plaintiff were not limited by time, and the plaintiff still seeks discovery without a time limitation (T58 [39]-[40]); however, it has drafted the following list of categories in the alternative, which are all limited by time except for specific species of documents described in the subcategories (noted ‘(a)’, ‘(b)’ and so on). Orders will not be made for time periods that go beyond the plaintiff’s suggestion but will rather be limited by the time periods below.

“Entry into the Agreement, Variation and Commission Letter

1.    All documents in the period 25 August 2018 to 25 October 2019 relevant to the issues raised by paragraphs 11 and 19C of each of the ASOC and the Defence as to the authority of the Fourth Defendant to sign the Agreement for or on behalf of the First and/or Second Defendants or of the Sixth Defendant to sign the Agreement for or on behalf of the Third Defendant, including but not limited to and, without limitation as to time period:

(a)    the constitutions of the First, Second and Third Defendants;

(b)   any board minutes or resolutions of the First, Second or Third Defendants regarding the entry into the Agreement;

(c)   any correspondence between the directors of the First, Second or Third Defendants regarding entry into the Agreement; and

(d)    any other documents recording the delegation of authority by the First and Second Defendants on the Fourth Defendant or by the Third Defendant on the Sixth Defendant to enter into the Agreement.

2.   All documents in the period 3 June 2019 to 17 July 2020 relevant to the issues raised by paragraphs 22 of the ASOC and 22(b)-(c) of the Defence as to the authority of the Fourth Defendant to sign the Variation for or on behalf of the First and/or Second Defendants or of the Sixth Defendant to sign the Variation for or on behalf of the Third Defendant including but not limited to and, without limitation as to time period:

(a)   any board minutes or resolutions of the First, Second or Third Defendants regarding the entry into the Variation;

(b)   any correspondence between the directors of the First, Second or Third Defendants regarding entry into the Variation; and

(c)   any other documents recording the delegation of authority by the First, Second or third Defendants to enter into the Variation.

3.   All documents in the period 24 September 2019 to 27 September 2020 relevant to the issues raised by paragraphs 25 of the ASOC and 25(b)-(c) of the Defence as to the authority of the Fourth Defendant to sign the Commission Letter for or on behalf of the First and/or Second Defendants or of the Sixth Defendant to sign the Commission Letter for or on behalf of the Third Defendant including but not limited to and, without limitation as to time period:

(a)   any board minutes or resolutions of the First, Second or Third Defendants regarding the entry into the Commission Letter;

(b)   any correspondence between the directors of the First, Second or Third Defendants regarding entry into the Commission Letter; and

(c)    any other documents recording the delegation of authority by the First, Second or Third Defendants to enter into the Commission Letter.

Reliance and Defendants' failure to take reasonable care

4.   All documents in the period 3 July 2019 to 20 August 2020 relevant to the issue of whether the Defendants relied on alleged representations by the Plaintiff as pleaded in paragraphs 22(g), 25(d), 27, 28, 29(b) and/or 39 of the Defence, and paragraph 3(b) of the C-C, including but not limited to and, without limitation as to time period:

(a)   any enquiry, check, investigation or research conducted by, for, or on behalf of the Defendants into Global Wise Pte Ltd, Lankan Bal, or any entities associated with them, including but not limited to whether they were capable of advancing the proposed loans;

(b)    any enquiry, check, investigation or research conducted by, for, or on behalf of the Defendants about any other potential lender for the purposes identified in paragraph 13(a)(i) and ii) of the Defence;

(c)    any other final, preliminary or draft funding proposals obtained by the Defendants from any other potential lender for the purposes identified in paragraph 13(a)(i) and ii) of the Defence;

(d)   any correspondence between any of the Defendants amongst themselves or with any external legal or financial adviser or consultant concerning potential lenders for obtaining finance for the purposes identified in paragraph 13(a)(i) and ii) of the Defence

(e)   any legal or financial advice obtained by the Defendants (or any one or more of them) about the 3 July proposal, the 12 February proposal or the 10 March proposal.

(f)    any board minutes or resolutions regarding the acceptance, or proposed acceptance of the:

(i)   3 July proposal, 10 March proposal and or 12 February proposal;

(ii)   Agreement;

(iii)   Commission Letter; and or

(iv)    Variation.

5.   All documents in the period 5 July 2019 to 20 August 2020 relevant to the issues raised by paragraph 5(b)(ii) of the C-C Defence, namely that the Defendant failed to take reasonable care in the ways alleged in and particulars (i) and/or (ii) of paragraph 5(b)(ii) of the C-C Defence, including but not limited to and, without limitation as to time period;

(a)   any enquiry, check, investigation or research conducted by, for, or on behalf of the Defendants as to whether the 3 July proposal, the 12 February proposal or the 10 March proposal were genuine proposals issued by a lender actually capable of advancing the proposed loan before signing the Variation or the Commission Letter, making the payments pleaded in paragraphs 27 and 28 of the Statement of Claim, or agreeing to be responsible for all fees, disbursements and applicable taxes due to Foong & Partners; and

(b)   any legal or financial advice obtained by the Defendants before signing, and in relation to, the Variation or the Commission Letter.”

98. The plaintiff says that this alternative request where the general category is limited but for specific species of document “achieves a middle ground between the position [it] originally proposed and address some of [the defendants’] concerns” (T59 [6]-[7]).

99. The defendants take issue with the structure of the plaintiff’s request. It notes that the plaintiff seeks discovery both by issue and by category, and that the categories listed under each of the five chapeaux in their terms exceed the bounds set by the chapeaux: “the listed categories are broader than the issue described in the chapeau of each category”. The defendants go on:

“[63]   For example, the chapeau of category 1 identifies an issue being “the authority of the Fourth Defendant to sign the Agreement for or on behalf of the First and/or Second Defendants”.

[63]   However, the sub-categories that follow category 1 are much broader. For example, category 1(c) requires “any correspondence between the directors of the First, Second or Third Defendants regarding entry into the Agreement”. That sub-category would extend well beyond the issue, identified in the chapeau….

[64]   Subject to the imposition of a sensible time limitation on the categories, the defendants’ position is that the plaintiff can have either discovery by issue or discovery by sub-category, but not both. That is, for each category in the plaintiff’s motion the defendants are willing to give discovery in relation to either:

(a)   the “issue” identified in the chapeau up to the words “including but not limited to”; or

(b)   documents falling within the sub-categories that follow the words “including but not limited to”.”

100. The simultaneous and collocated prayers for discovery, on the one hand based on issue, and on the other hand based on category, especially where the categories in terms are sometimes broader than the issues indicated in the chapeaux, are somewhat confusing.

101. It is my view that the plaintiff’s categories for discovery be disaggregated for ease of understanding. Chapeaux 1–5 which identify documents by reference to issue should not be read as limiting the scope of each of the sub-categories (a), (b), (c) and so on. Although this produces more ‘tranches’ of discovery, it still does not exceed the defendants’ ‘tranches’, so I see no problem in taking this course, especially where it enhances clarity. It will, therefore, also expedite the process of discovery.

102. It will appear that in response to the time frames suggested by the defendants as to the five chapeaux, the plaintiff has simply returned the same dates with a six-month extension on either side:

“what we’ve done is we’ve [added] six months either side of the period that was proposed … because we say it’s too narrow to look in that very short period of time, there may well be documents that relate to the authority of the directors up to six months or after six months afterwards” (T58 [45]–[49]).

103. These reasons for an extension of time are not persuasive and seem somewhat arbitrary. The tranches of discovery are already relatively complex and detailed. The plaintiffs have in substance accepted that there should be a time frame on the five chapeaux (that is, excluding the subcategories) and have not given good reason why the time period acceded to by the defendants should be lengthened, arbitrarily, by a year except that the defendants’ proposed time periods are quite narrow.

104. For this reason, in each of the five chapeaux, the defendants’ proffered time frames will be accepted.

105. Any potential prejudice occasioned by this broad-brush approach is dramatically minimised by the fact that, as will become apparent, many of the subcategories which identify the critical documents are unlimited as to time.

Category 1

106. As to the chapeau of category 1, it seems to me that the defendants say that the period of 25 February 2019 to 18 April 2019 is appropriate. The plaintiff suggests 25 August 2018 to 25 October 2019 is proper (being an extension of 6 months on either side). The defendants’ suggestion of 25 February 2019 to 18 April 2019 is accepted.

107. The defendant accepts that subcategories (a) and (d) be unlimited as to time, it says that (b) and (c) should be limited (T60 [31]-[40]).

108. The documents sought by (b) (‘any board minutes or resolutions of the First, Second and Third Defendant regarding the entry into the Agreement’) are central to one of the key issues in the dispute being the capacity of the fourth to sixth defendants to bind the first to third defendants and the efficacy of any attempt. For this reason, the documents caught by 1(b) will not be limited as to time.

109. Subcategory (c) is likely to produce much that is ultimately irrelevant. The risk of returning irrelevant material increases the further from the material time the period extends. For this reason, I accept the defendants’ suggestion of limitation to the period of time from 25 February 2019 to 18 April 2019.

Category 2

110. As to the chapeau of category 2, the defendants say that the period of 3 December 2019 to 17 January 2020 is appropriate. The plaintiff suggests 3 June 2019 to 17 July 2020 is proper (being an extension of 6 months on either side). The defendants’ suggestion of 3 December 2019 to 17 January 2020 is accepted.

111. The defendant urges that subcategories (a) and (b) be limited as to time but accepts that subcategory (c) may be unlimited (T61 [21]-[22]).

112. The documents sought by subcategory (a) (‘any board minutes or resolutions of the First, Second or Third Defendants regarding the entry into the Variation’) are central to the issues in dispute. It is imperative that these documents are disclosed. Therefore, subcategory (a) will be unlimited as to time.

113. Subcategory (b) is likely to produce much that is ultimately irrelevant. However, there may be important documents captured by the subcategory. To strike a balance between irrelevant and relevant documents, subcategory (b) is limited to the period of 3 December 2019 to 17 January 2020.

Category 3

114. As to the chapeau of category 3, the defendants say that the period of 24 March 2020 to 27 March 2020 is appropriate. The plaintiff suggests that 24 September 2019 to 27 September 2020 is proper (being an extension of 6 months on either side). The defendants’ suggestion of 24 March 2020 to 27 March 2020 is accepted.

115. The defendant urges that subcategories (a) and (b) be limited as to time but accepts that subcategory (c) may be unlimited (T61 [21]-[22]).

116. As above, the documents caught by (a) are likely to be highly probative of the plaintiff’s case. Subcategory (a) will be unlimited as to time.

117. As above, subcategory (b) is likely to produce much that is ultimately irrelevant. However, there may be important documents captured by the subcategory. To minimise prejudice on both sides, subcategory (b) is limited to the period of 24 March 2020 to 27 March 2020.

Categories 4 & 5

118. As to the chapeaux of categories 4 and 5, the parties agree that the time period of 3 July 2019 to 20 August 2020 is reasonable. It is the above period for which discovery is to be given.

119. As to the subcategories of documents sought within categories 4 and 5, the plaintiff seeks that they not be limited as to time. The defendants seek time limits. However, each of subcategories 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 5(a) and 5(b) are limited by reference to the occurrences and documents intimately connected both in theme and in time with the proceedings. Therefore, there does not seem to me to be any difference between limiting the time period or making the order unlimited as to time.

120. Orders for subcategories 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 5(a) and 5(b) will be made in the terms submitted by the plaintiff, that is, unlimited as to time.

Costs

121. Costs are discretionary. Normally, costs follow the event. As both parties have had some success and some failures in seeking discovery, it is my view that the appropriate order for costs is that costs be costs in the cause.

Orders

122. The Court orders that:

1. As to the defendants’ lists of categories, the plaintiff is to give discovery to the defendants in the terms sought by the defendants in A1, A3, A6 (agreed), A7, A10 (agreed), A11, A12, A13, A15 (for the period from 1 April 2019 to 31 July 2021), A16 (agreed), A17 (agreed) and in the terms of all the categories in Annexure B (agreed). As to A14, the plaintiff is to give discovery to the defendants of any analyses of the plaintiff’s financial and business structure which cast light on the place of the interest rates which are from time to time are agreed to accrue on unpaid loans.

2. Where sought by way of asterisk, the plaintiff is to produce the documents for which discovery has been ordered in native format.

3. As to the plaintiff’s list of categories:

1. The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 1, for the period of 25 February 2019 to 18 April 2019. The defendants are to give discovery of the documents sought in each of the subcategories. Categories 1(a), 1(b) and 1(d) are unlimited as to time. Category 1(c) is limited to the period of 25 February 2019 to 18 April 2019.

2. The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 2, for the period of 3 December 2019 to 17 January 2020. The defendants are to give discovery of the documents sought in each of the subcategories. Categories 2(a) and 2(c) are unlimited as to time. Category 2(b) is limited to the period of 3 December 2019 to 17 January 2020.

3. The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 3, for the period of 24 March 2020 to 27 March 2020. The defendants are to give discovery of the documents sought in each of the subcategories. Categories 3(a) and 3(c) are unlimited as to time. Category 3(b) is limited to the period of 24 March 2020 to 27 March 2020.

4. The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 4, for the period of 3 July 2019 to 20 August 2020. The defendants are to give discovery of the documents sought in each of the subcategories 4(a), 4(b), 4(c), 4(d), 4(e) and 4(f) (unlimited as to time).

5. The defendants are to give discovery to the plaintiff in terms sought by the plaintiff in the chapeaux of category 5, for the period of 3 July 2019 to 20 August 2020. The defendants are to give discovery of the documents sought in each of the subcategories 5(a) and 5(b) (unlimited as to time).

4. Both parties are to give discovery within 28 days.

5. Costs of the defendant’s Notice of Motion filed 14 March 2025 are costs in the cause.

6. Costs of the plaintiff’s Notice of Motion filed 18 March 2025 are costs in the cause.

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Amendments

21 August 2025 - amended the discovery category time in order 3(a) relating to category 1 (c)

Decision last updated: 21 August 2025