Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 4)

[2023] NSWSC 508

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 4) [2023] NSWSC 508

Hearing dates:

15 May 2023

Date of orders:

15 May 2023

Decision date:

15 May 2023

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Orders made concerning production of documents sought in Notice to Produce and as to confidentiality of such document

Catchwords:

CIVIL PROCEDURE – notices to produce – before hearing – production of documents – orders as to confidentiality of such documents

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:

Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWSC 239

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) [2023] NSWSC 401

Category:

Procedural rulings

Parties:

Ceerose Pty Limited (Plaintiff/Cross-Defendant)
A-Civil Aust Pty Ltd (Defendant/Cross-Claimant)

Representation:

Counsel:
S Robertson SC with J Wright (Plaintiff/Cross-Defendant)
L Gor (Defendant/Cross-Claimant)

Solicitors:
Salim Rutherford Lawyers (Plaintiff/Cross-Defendant)
M&A Lawyers (Defendant/Cross-Claimant)

File Number(s):

2022/217806; 2022/236818

JUDGMENT

1. The plaintiff, Ceerose Pty Ltd, brought these proceedings challenging adjudications made in favour of the defendant, A-Civil Aust Pty Ltd, under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”).

2. In the usual way, Ceerose obtained interlocutory relief restraining A-Civil from enforcing the determination, pending Ceerose’s challenge to the determination upon payment into court of the adjudicated amount.

3. On 21 April 2023, Darke J, following judgments delivered on 20 March 2023^[1] and on 20 April 2023,^[2] ordered that the adjudications be set aside as to certain amounts (“the Disallowed Amounts”) and be confirmed as to certain amounts (“the Confirmed Amounts”).

   1. Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWSC 239.

   2. Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) [2023] NSWSC 401.

4. Ceerose has now filed a Notice of Appeal. The appeal is listed for hearing commencing on 19 July 2023.

5. On 5 May 2023, I made orders to the effect that the money Ceerose had paid into court equal to the Disallowed Amounts be paid out to it and that a judgment entered against Ceerose in favour of A-Civil pursuant to s 25 of the Act for the whole of the adjudicated amount be set aside.

6. I also heard argument in relation to a Notice to Produce served by Ceerose on A-Civil.

7. Ceerose served its Notice to Produce in aid of its pending application for a “Grosvenor stay” in respect of payment to A-Civil of the Confirmed Amounts. Ceerose’s contention is that, because of A-Civil’s financial position, such payment would be ultimately irrecoverable should Ceerose be held entitled to the Confirmed Amounts. That application is listed for hearing before Ball J on 29 May 2023.

8. I directed that the parties prepare a Redfern Schedule and, on 9 May 2023, circulated a version of that Redfern Schedule populated, in a column headed “Decision”, with my decision as to the various categories of documents sought. A copy of the Redfern Schedule is attached to these reasons.

9. Ceerose arranged for the matter to be restored to the list before me today because of a disagreement as to the terms of a confidentiality regime for production of confidential documents and as to a dispute concerning A-Civil’s response to Item 22 in the Redfern Schedule.

10. The difficulty that arose in relation to Item 22 appears to have been caused by my decision to delete the word “including” from the category of documents sought in the Notice to Produce.

11. A-Civil adduced evidence from Mr Geoffrey Campey, a Computer Forensics Investigator, who deposed that it would not be possible, as would be required by reason of the deletion of the word “including”, to segregate from A-Civil’s MYOB file the “raw financial and other data” referrable only to the balance sheet and profit and loss statements and financial statements referred to in Category 22.

12. Thus, Mr Campey deposed:

“To restate for clarity, it appears to me from my review of MYOB that it is only possible to export the entire contents of an MYOB company file to a ‘.myox’ file. The MYOB software does not appear to provide any mechanism for granular control over the contents of a ‘.myox’ file export.”

13. In the light of Mr Campey’s evidence, it appeared to me that the sensible course was simply to order that A-Civil produce to the plaintiff’s solicitors a copy of the whole of A-Civil’s current MYOB file in the form of a .myox file.

14. Accordingly, earlier today, I made this order:

That the first defendant to produce to the plaintiff’s solicitors the documents referred to at Items 3, 4, 5, 6, 8, 10, 16(e)-(j), 23 and 25 of the Redfern Schedule of 9 May 2023, and that the first defendant produce to the plaintiff’s solicitors a copy of the whole of the first defendant’s current MYOB file in the form of a .myox file.

15. Counsel for A-Civil foreshadowed A-Civil would seek to challenge the making of this order. I order that that order be stayed until 5.00pm tomorrow, 16 May 2023, to enable A-Civil to take that course.

16. My reasons for making the order at [14] are set out in the Redfern Schedule and in these reasons.

17. I have also been asked to give reasons for my conclusion concerning Category 10. My reasons for allowing that category are that I accepted the submissions made by Ceerose summarised under the heading “Plaintiff’s Position” in the Redfern Schedule.

18. There is also a dispute between the parties as to the confidentiality regime that should be adopted in relation to the documents to be produced by A-Civil.

19. Ceerose and A-Civil provided competing proposals concerning the confidentiality of the documents.

20. I make the following order:

The parties are to adopt the following confidentiality regime in respect of documents to be produced by the First Defendant pursuant to the rulings in the Redfern Schedule issued by the Court on 9 May 2023:

1. The first defendant is to provide the documents on three USB sticks to the plaintiff’s solicitors, Salim Rutherford.

2. The information and material on the three USB sticks is not to be discussed, shown, copied, or distributed beyond counsel, being Scott Robertson SC, David Hume and Julie Wright, solicitors Stephanie Saad and Daniel Salim and any accounting or financial expert engaged by the plaintiff in these proceedings, provided any such expert first gives an undertaking as to the confidentiality of the information and material.

3. Salim Rutherford is to return the three USB sticks to M&A Lawyers within 28 days after the disposal of the plaintiff’s application for:

1. final relief in prayer 7 in the plaintiff’s Summons (#2022/236818) and Amended Summons (#2022/217806); and

2. relief in prayers 4 and 5 of the plaintiff’s Notice of Motion of 1 May 2023.

4. Salim Rutherford is to:

1. confirm that it has destroyed all hard/paper copies of any information and material copied from any of the USB sticks; and

2. destroy all electronic copies of information and material reproduced from any of the USB sticks,

28 days after the disposal of the plaintiff’s applications as described in subpar (c) above.

5. This order does not prevent any person from:

1. disclosing any information or material to the first defendant including by serving any information or material on which the plaintiff proposes to rely at the hearing listed for 29 May 2023 on the first defendant;

2. disclosing any information or material to the Court including by including any information or material in the Court Book prepared for the purposes of the order made on 21 April 2023.

6. Subject to any orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) or orders of a like kind, these orders do not apply to any information or material that is received in evidence.

21. In relation to Order (b), A-Civil objected to disclosure of the information of material to Mr Hume of Counsel on the basis that he is not retained by Ceerose in relation to the pending Grosvenor stay application. However, Mr Hume has been briefed for Ceerose in these proceedings and I see no reason why Senior Counsel for Ceerose should be prohibited from discussing the documents to be produced by A-Civil with Mr Hume as part of his preparation for the hearing of the Grosvenor stay application.

22. A-Civil also objected to the material being made available to any accounting or financial experts engaged by Ceerose. I see no reason why Ceerose should not seek accounting or financial expert assistance in relation to the matter, albeit on condition that such accounting or financial expert also give an undertaking as to confidentiality.

23. Ceerose did not object to A-Civil’s proposal for orders (c) and (d).

24. Orders (e) and (f) were proposed by Ceerose. They appear to me to be sensible, although I have made an adjustment to order (e).

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Redfern Schedule

Endnotes

Amendments

16 May 2023 - [20(a) and (b)] amended to include number of USB sticks

Decision last updated: 16 May 2023