Capstone Financial Planning v NAB Ltd (Ruling)
[2020] VCC 1841
•25 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-03553
| CAPSTONE FINANCIAL PLANNING PTY LTD (ACN 24 093 733 969) | Plaintiff |
| V | |
| NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Application determined on the papers | |
DATE OF RULING: | 25 November 2020 | |
CASE MAY BE CITED AS: | Capstone Financial Planning v NAB Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1841 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Discovery – application by plaintiff for pre-issue discovery
Legislation Cited: County Court Civil Procedure Rules 2018, Rule 32.05
Cases Cited:United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500; Beston Parks Management Pty Ltd v Sexton [2008] VSC 392.
Ruling: Application granted.
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| Counsel | Solicitors | |
| For the Plaintiff | - | Lander & Rogers |
| For the Defendant | - | HWL Ebsworth |
HIS HONOUR:
1 This is an application brought by way of Originating Motion by the plaintiff Capstone Financial Planning Pty Ltd, for the defendant, National Australia Bank Ltd (“NAB”), to make pre-issue discovery, pursuant to Rule 32.05 of the County Court Civil Procedure Rules 2018.
2 NAB neither consents to nor opposes the Court determining this matter “on the papers”. Accordingly, I am prepared to deal with this matter “on the papers”. In order to do so, the Court was provided with, and considered the following:
·Affidavit of Genevieve Winifred Kofoed, solicitor for the plaintiff, sworn 11 August 2020.
Background Facts
3 The background facts are taken from the affidavit of Ms Kofoed. They are straight forward and will be familiar to anyone who has ever transposed the wrong number when making an electronic funds transfer.
4 The plaintiff is a financial planning licencee who provided financial advice to Sonia Shard. In the course of redeeming an investment held by Ms Shard the plaintiff made an error in the paperwork for the transfer. The result was that the redeemed funds, totalling a not insignificant sum of $104,462.46, were electronically transferred to an account held with NAB. The funds were meant to be transferred to an account held in Ms Shard’s name with the Macquarie Bank.
5 NAB has Capstone Financial Planning v NAB Ltd (Ruling) refused to provide relevant details of the account holder who has been the unintended recipient of the incorrectly transferred funds. The plaintiff now seeks orders that reveal the identity of the account holder of NAB account number 120066717 with BSB 083-334, including the account holder’s name, postal address, email address, and mobile phone number. These details are needed to pursue recovery of the funds.
Rule 32.05
6 On an application pursuant to Rule 32.05, for discovery from a prospective defendant, an applicant has to establish:
(i)that there is reasonable cause to believe that the applicant has or may have the right to claim relief from an identified person;
(ii)that it has made all reasonable enquiries but does not have sufficient information to decide whether to commence a proceeding to obtain relief;
(iii)that there is reasonable cause to believe that the person has, or is likely to have, or has had or is likely to have had, in his possession, a document relevant to the question whether the applicant has the right to obtain relief; and
(iv)that inspection of the document by the applicant would assist to make a decision whether to proceed.
7 Whether the Court makes an order for discovery from a prospective defendant is a matter for the discretion of the Court.[1]
[1]United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133
8 As Gillard J noted in United Energy at paragraph 31, “the object of the Rule is to … enable a prospective plaintiff to see the relevant documents which the prospective defendant has or has had in his possession in order to make an informed decision as to whether he has a good cause of action”. The prime object of the Rule is to enable access to documents to enable an informed decision to be made.
9 The Rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits. It must be given the fullest scope its language will reasonably allow.[2]
[2]Beston Parks Management Pty Ltd v Sexton [2008] VSC 392; Australian Football League v Stadium Operations Ltd [2009] VSC 264
10 The determination of this application is a simple task. Clearly there has been a simple error by the plaintiff so as to transfer Ms Shard’s funds to the wrong account. The details of the account holder are not known by the plaintiff. The defendant says it cannot provide the account holder’s details due to privacy constraints and is unable to provide the account details in the absence of a Court order.
11 An applicant seeking to rely on Rule 32.05(b) is required to show, as an objective fact, that it has not sufficient information for it to decide whether to commence a proceeding to obtain relief.[3] I am satisfied that the plaintiff lacks sufficient objective facts so as to commence a proceeding for the recovery of the funds. On any view the relevant details of the potential defendant – that is, the person or entity who was the recipient of the funds – will be within the knowledge of NAB.
[3]Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500
12 Therefore, having considered the evidence before the Court in the Kofoed affidavit, I conclude that the plaintiff is entitled to the orders it seeks.
13 The requirement of Rule 32.05(b) has been made out based on the evidence before the Court on this application.
14 Accordingly, the application is granted.
15 The formal orders of the Court are as follows:
(1) The plaintiff’s application pursuant to Rule 32.05 is granted.
(2) NAB is to make Discovery pursuant to rule 32.05(b) of documents which reveal the identity of the account holder of the NAB account number 120066717 with BSB 083-334, including documents which reveal the account holder’s name, postal address, email address, and mobile phone number.
(3) Liberty to apply to any person affected by this order.
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