Christer Nominees Pty Ltd trading as Willis Property Group v Calabria Community Club Ltd

[2022] NSWSC 284

Supreme Court

New South Wales

Medium Neutral Citation:

Christer Nominees Pty Ltd trading as Willis Property Group v Calabria Community Club Ltd [2022] NSWSC 284

Hearing dates:

22 February 2022

Date of orders:

18 March 2022

Decision date:

18 March 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

See orders at [81]

Catchwords:

CIVIL PROCEDURE – court administration – assignment of business – application to transfer from Common Law Division to Commercial List in Equity Division – sufficient case for transfer not made out

CIVIL PROCEDURE – subpoenas – application to set aside – whether subpoenas had apparent relevance to issues in dispute – whether subpoenas oppressive – claims of confidentiality and legal professional privilege – subpoenas set aside in part – as two current Chief Justices then were

Legislation Cited:

Australian Consumer Law, ss 18, 236

Property and Stock Agent Act 2002 (NSW)

Property and Stock Agent Regulation 2014 (NSW)

Supreme Court Act 1970 (NSW), ss 53, 54

Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Cases Cited:

Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93

Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98

Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297

Coastline Constructions (Aust) Pty Ltd v Kakavas [2008] NSWSC 388

Commissioner for Railways v Small (1938) SR (NSW) 564

Fried v National Australia Bank [2000] FCA 911; (2000) 175 ALR 194

Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court (NSW), McLelland J, 3 March 1986, unrep)

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

ReACI InternationalLtd (1986) 11 ACLR 240

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710

Trade Practices Commission v Kimberley Homes Pty Ltd (1989) 217 ALR 110

Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241

Category:

Procedural rulings

Parties:

Christer Nominees Pty Ltd trading as Willis Property Group ACN 101 628 139 (Plaintiff)
Calabria Community Club Ltd ACN 002 228 604 (Defendant)

Representation:

Counsel:
P Wallis (Plaintiff)
A Wilson (Defendant)

Solicitors:
Piper Alderman (Plaintiff)
SMB Law (Defendant)

File Number(s):

2020/348107

Publication restriction:

Nil

Judgment

Introduction

1. Before the Court is a notice of motion filed on 23 November 2021. The applicant on the motion seeks the following orders:

“1.   The subpoenas issued on 6 October 2021 at the request of the plaintiff addressed to:

a.    Gary John Watts trading as GJW Consultancy (GJW Subpoena);

b.    Pagano Architects Pty Limited (Pagano Subpoena);

c.    Joanne Doueihi trading as All Round Conveyancing (All Round Subpoena); and

d.    Holding Redlich (Holding Subpoena).

(collectively the Subpoenas) be set aside.

2    Further or in the alternative a direction that any documents produced in answer to the Subpoenas be not open to inspection by the plaintiff until further order.

3    Further, the proceedings herein be transferred to the Equity Division.

4    The plaintiff pay the defendant’s costs of this motion.”

2. The applicant on the motion is the defendant on a statement of claim brought by the respondent. A cross-claim has also been brought by the defendant. Defences to the statement of claim and the cross-claim have been filed. While I am determining the applicant’s motion, it is convenient to refer to the parties by reference to their positions in the substantive proceedings.

3. The background to the dispute can be described in relatively short terms. The plaintiff conducts a business as a licensed real estate agent. The defendant was at all material times the registered proprietor of a parcel of land in Prairiewood, New South Wales. The dispute arises out of a property development undertaken by the defendant. A significant number of apartments were built on the land and the plaintiff engaged as a real estate agent to sell those apartments. A dispute has now arisen in relation to the payment of commissions to the plaintiff, leading to this litigation.

The progress of the proceedings to date

4. The proceedings were commenced by the filing of the statement of claim on 8 December 2020.

5. A request for further and better particulars was made by the defendant on 14 January 2021.

6. Further and better particulars were provided by the plaintiff on 2 February 2021.

7. A defence and statement of cross-claim were filed on 8 April 2021.

8. On 15 April 2021 the Court made timetable orders that included an order that the plaintiff serve its evidence in chief in the substantive proceeding by 13 May 2021. That order has not been complied with.

9. A defence to the cross-claim was filed on 12 May 2021.

10. A notice of motion seeking security for costs was filed by the defendant on 7 April 2021.

11. The Court ordered that the plaintiff pay security for costs on 26 July 2021.

12. The subpoenas to which this notice of motion relates were issued by the Court at the request of the plaintiff on 6 October 2021.

13. The notice of motion was filed on 23 November 2021 and came before me as Duty Judge on 22 February 2022.

The application that the proceedings be transferred to the Equity Division.

14. The defendant observed that the Division in which the matter is to be heard will impact on the practice notes which are applicable to the proceedings. This has, at least, the potential to impact on the orders that should be made with respect to the subpoenas. It was the defendant’s contention that, in the event proceedings are transferred to the Equity Division, the subpoenas would be set aside, based on Practice Note SC Eq 11, at [4]-[6]. While I do not necessarily accept this contention, it is convenient, given at least the potential impact on the other orders sought, to consider the application for the transfer of the proceedings first.

Transfer between divisions - relevant principles

15. Section 53 of the Supreme Court Act 1970 (NSW) is the starting point that governs the Division to which proceedings are assisted. As Rogers CJ Comm D said in Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 308:

“The assignment of business is for the purpose of allowing the most appropriate distribution of the Court’s business, taking all relevant matters into account.”

16. The proceedings were properly commenced by statement of claim in the Common Law Division. Section 54 of the Supreme Court Act provides that the Court in a Division may, on application by a party or on its own motion transfer the whole or any part of the proceedings in that Division to another Division. The relevant principles with respect to the transfer of proceedings are not in dispute. The determination is discretionary: Coastline Constructions (Aust) Pty Ltd v Kakavas [2008] NSWSC 388 per Hislop J at [16].

17. In Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court (NSW), McLelland J, 3 March 1986, unrep), quoted with approval by Rogers CJ Comm D in Challenge Bank Ltd at 308, McLelland J observed (at 5):

“The orderly conduct of the business of the Court requires that proceedings properly commenced in one Division remain in that Division unless a sufficient case for transfer to another Division has been made out.”

18. Here, the defendant has the burden of establishing that the proceedings should be transferred to the Equity Division. The defendant submits the subject matter of the proceedings are more appropriately dealt with in that Division, and particular in the Commercial List of that Division.

19. As discussed above, there is a dispute between the parties as to the effect of the contracts between them. It is unnecessary to detail the precise areas of difference. What is clear is that the plaintiff asserts that, in accordance with the agreements executed between the parties, invoices have been sent with respect to commissions owed and those invoices have not been paid. The defendant relies on the “full terms and conditions” of the agreement in disputing its obligation to pay the amounts claimed in the invoices. The defendant’s contentions in this regard are expanded upon in the cross-claim, discussed below. The defendant also says the agreements failed to comply with the Property and Stock Agent Act 2002 (NSW) and the Property and Stock Agent Regulation 2014 (NSW), and that as a result the plaintiff has no entitlement to the claimed commissions.

20. The defendant in its cross-claim asserts that the plaintiff was in breach of express and implied terms of the agreement. In particular the defendant asserts the plaintiff failed to use its best endeavours to effect sales of the apartments at the highest achievable price in breach of an express term requiring it to do so. Additionally, it is asserted the plaintiff was in breach of an implied term that the plaintiff would exercise due care, skill and diligence in providing the services under and in accordance with the agreement. This term is said to be implied by operation of the Property and Stock Agents Act and the Regulations made under that Act. The factual foundation for these claims fall into two categories, the first styled as “apartments to relatives”, and the second styled as “car park affected units”.

21. In relation to the “apartments to relatives”, the defendant asserts that part of the plaintiff’s claim for commission is based on reported sales of four apartments to Mr Willis (the plaintiff’s director and signatory on the agreements), in relation to which the defendant claims contracts were never exchanged and no commission is therefore payable. In relation to a further four apartments the defendant claims the apartments were sold to persons related to Mr Willis at a price lower than could have been achieved, in breach of the express and implied terms referred to above.

22. As to the “car park affected units”, the defendant claims that, in relation to a number of units, the plaintiff made representations to the purchasers to the effect that no car parking spot was included as part of the title to the property when that was not the case. Inherent in this is a failure to properly promote the property and consequently achieve the best possible price. On this basis, the defendant asserts a breach of the express and implied terms referred to above. The defendant also asserts that representations made to purchasers of the car park affected units were false, misleading or deceptive or likely to mislead or deceive and thus, constituted contraventions of s 18 of the Australian Consumer Law, entitling the defendant to recover, pursuant to s 236 of the Australian Consumer Law, the loss and damage it suffered because of the conduct. The defendant also claims the plaintiff was negligent in the sale of the car park affected units.

23. The defendant, by its cross-claim, seeks damages based on the loss and damage suffered as a result of the sale of the apartments to relatives and the car park affected units. While it can be accepted that the claim relates to a commercial transaction with respect to a property development, there is, to this point, nothing in the claim that is particularly unusual, or complex, that would warrant diverting it from this Division at this stage of the proceedings.

24. The cross-claim goes further and alleges that the plaintiff owed a fiduciary duty to the defendant to avoid situations where its personal interests conflicted with the interests of the defendant and its duties to the defendant; and further not to take advantage of its position to the detriment of the defendant. The cross-claim asserts that the plaintiff breached its fiduciary duty as a result of the sale of the apartments to relatives and the defendant as a result suffered loss.

25. The defendant submits that if the plaintiff is found to have breached its fiduciary duty there are a range of equitable remedies that the Court might consider. It is submitted that, based on the commercial nature of the transaction giving rise to the dispute and the potential availability of equitable remedies, the matter is more appropriately dealt with in the Commercial List in the Equity Division. I do not accept this submission.

26. As noted above, while the facts involve a significant property development, there is nothing particularly complex about the dispute that arises between the parties. Further, insofar as a breach of a fiduciary duty might give rise to particular equitable remedies, no such remedies have been sought in the cross-claim. What is specifically claimed are damages together with interest and costs. While the relief claimed includes “such further or other order as the Court deems fit”, this is not a solid foundation for an argument that some equitable remedy will later be seen to be appropriate. Having regard to the dispute, it is entirely understandable that the drafter of the cross-claim did not specifically envisage anything beyond damages for the claimed loss, irrespective of the basis of liability established. In any event, if matters should transpire beyond what was envisaged by the drafter of the cross-claim, and some equitable remedy is regarded as appropriate, there is no issue that such an order could be made by a judge in this Division.

27. Having regard to the above, I am not satisfied that a sufficient case for transfer to the Equity Division has been made out. As a result, the orderly conduct of the business of the Court requires that the proceedings properly commenced in the Common Law Division of this Court remain in this Division.

28. I would dismiss Prayer 3 of the defendant’s motion.

The defendant’s application for orders setting aside subpoenas issued at the request of the plaintiff

29. On 6 October 2021, at the request of the plaintiff, subpoenas were issued to the following:

• Gary John Watts trading as GJW Consultancy (“GJW”);

• Pagano Architects Pty Ltd (“Pagano Architects”);

• Joanne Doueihi trading as All Round Conveyancing (“All Round”); and

• Holding Redlich, solicitors (“Holding Redlich”).

30. As noted above, the defendant seeks orders setting aside those subpoenas. In the alternative an order is sought directing that any documents produced in answer to the subpoenas not be open to inspection by the plaintiff until further order.

31. Two of the recipients of the subpoenas, GJW and All Round, have already produced material in answer to the subpoenas (the former after correspondence narrowing the terms of what was sought). The other two recipients have engaged in correspondence with the plaintiff to narrow the terms of the respective subpoenas.

32. Insofar as GJW and All Round have responded to the subpoenas issued to them, the defendant submitted that no regard should be had to this fact in determining its application. This is because, the defendant argued, in making their response to the subpoenas, GJW (and, incidentally, Pagano Architects) had been misled by emails sent by the plaintiff’s solicitor narrowing the terms of the subpoenas, and indicating that this narrowing was the result of agreement with the defendant. On the evidence of the defendant, there had been no such agreement. The plaintiff in submissions accepted that there had been no explicit agreement reached between the parties to narrow the scope of their subpoenas. The plaintiff noted, however, correspondence from its solicitor explicitly responded to complaints raised by the defendant’s solicitor, by indicating that the plaintiff “consent[s] to amend the subpoenas” to substitute apparently offending words and said “we trust that will assuage your concerns”. There was, apparently no response from the defendant. Ultimately, it is neither necessary nor appropriate for me to enquire into the conduct of the plaintiff’s solicitor in this regard. There is a more straight-forward point in the defendant’s favour with respect to the significance of the recipients having responded to the subpoenas. This is discussed below. However, insofar as the defendant relied on the conduct of the plaintiff’s solicitor, the short response is there is no evidence the recipients responded to the subpoenas as a result of a misunderstanding of its terms. It should also be noted that it is, and has been at all times, open to the recipients of the subpoenas to seek to have them set aside irrespective of the attitude of defendant in the proceedings. This brings me to the circumstance that this application is brought by a party to the proceedings rather than the recipient of a subpoena.

An application to set aside subpoenas brought by a party

33. As noted above, two of the subpoena recipients have produced material in answer to their subpoenas, and the two others have entered into communication with the plaintiff with a view to narrowing the terms of their respective subpoenas. It is notable then, that the defendant brings this application to set aside a process in which it is not (at least directly) involved.

34. There is no issue that the defendant in this matter has standing to make this application. That is made explicit by r 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) which provides as follows:

33.4 Setting aside or other relief (cf SCR Part 37, rule 4)

(1)    The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

35. At common law, however, there is an issue as to whether a party to a proceeding has standing to seek to set aside an order directed to a non-party. There are judgments that suggest such a party does not have standing: ReACI InternationalLtd (1986) 11 ACLR 240, per Beach J at 241-2; Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 per Hunt J at 264. The conflicting approaches were discussed by Wienberg J in Fried v National Australia Bank [2000] FCA 911; (2000) 175 ALR 194.

36. The significance of the debate at common law to the present matter is the argument in favour of acceptance that a party has standing to seek to set aside a subpoena issued to a non-party. Weinberg J in Fried (at [16]) referred to the reasons of Hill J in Trade Practices Commission v Kimberley Homes Pty Ltd (1989) 217 ALR 110 at 113 where his Honour said:

“It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the court if it requires the production of documents which are manifestly irrelevant to the issues between the parties. But the recipient of a subpoena, if a stranger to the litigation, will ordinarily not know what the real issues between the parties are. That is a matter which will be best known to the parties themselves. The rule would therefore have little real significance if a party to the litigation could not move the court to set aside the subpoena and so argue the question of relevance.

That rule is but an illustration of the wider rule that a subpoena will always be set aside if it is shown to be an abuse of the court’s process. The court has a real interest that its process be not abused but acceptance of the submission might well involve the proposition that the court could not act of its own motion. But even if it did not involve so extreme a proposition, there would still, if the submission be correct, be no procedure whereby a party to the litigation, could bring to the attention of the Court that the process of the Court had been abused.”

37. Ultimately, it was unnecessary for Weinberg J to resolve the conflict in the authorities. His Honour, however, noted that he found the reasoning of Hill J, above, persuasive (see at [19]). In this case, that reasoning operates to elucidate the operation of r 33.4. In short, the force of the reasoning of Hill J is that, if the subpoenas, or any one of them, constitute an abuse of process, it matters not that the recipient has answered it, or is willing to do so.

38. It is necessary to turn then to the application to set aside.

The application to set aside subpoenas - principles

39. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, Bell P (as the Chief Justice then was) said (at [60]-[61]):

“60 There is a danger in using the language of “tests” for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in Botany Bay [Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98] at 100 (see [45] above).

61 As Brereton J said in A v Z at [3], a “subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence.” Evidence in that sense need not be admissible evidence and, as Samuels JA observed in Maddison v Goldrick at 663, documents subpoenaed for the purposes of cross-examining a witness have been treated as documents required for the purposes of evidence. This extends to cross-examination on issues of credit: see, eg, Brand at [36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Liristis)”

40. His Honour later said (at [65]):

“It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist.”

41. His Honour, at [68]-[69] said:

“68 There is a plain difference between “apparent relevance” and “fishing”, the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

69   If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. …”

42. See also Brereton JA at [88]-[89], McCallum JA (as the Chief Justice of the ACT then was) at [98].

43. The observations of Bell P set out above are, of course, as his Honour noted (at [70]), subject to the power to set aside, as an abuse, a subpoena issued for an “improper, illegitimate or ulterior purpose foreign to the litigation” even where the documents have apparent relevance.

44. Thus, while it is common in this area to seek to set subpoenas aside on the basis of complaints that the party is using a net rather than a line or is seeking discovery from third party, these are but attempts, not always helpful, to describe a more fundamental concept. A complaint the subpoena is being used as an attempt to obtain discovery from a third party, commonly arises (and indeed is referred to in the list compiled by Powell J, as his Honour then was, in Botany Bay Instrumentation and Control Pty Limited v Stewart, referred to by Bell P in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council at [45] and at [60]). This complaint was a substantial part of the defendant’s argument in the present matter. The problem, however, as I understand it, is not with the use of a subpoena to obtain discovery, per se. The complaint is, in reality, a complaint with respect to the requirement of reasonable particularity: see Commissioner for Railways v Small (1938) SR (NSW) 564 at 573-4; National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382; Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710. The observations of Hodgson JA in Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93, at [16] are instructive. His Honour said:

“Turning to the question whether these subpoenas are an abuse of process because they are being used to obtain discovery, in my opinion the correct test is that set out in Waind [[1978] 1 NSWLR 372] at p.382, namely whether or not the subpoena requires the recipient to make a judgment as to which documents relate to issues joined in the proceedings. In my opinion, if the subpoena does not do this, and if it is not otherwise oppressive, it does not matter that the party issuing it has the motive or purpose of supplementing or correcting what that party believes to have been inadequate discovery by the party to whom the subpoena is issued.”

The terms of subpoenas in question

45. As noted above, there has been an agreement between the plaintiff and the subpoena recipients to narrow the terms of the subpoenas (other than the subpoena issued to All Round). The subpoenas issued by the Court, of course, remain in the same terms despite what has occurred between the plaintiff and the recipients. The parties, however, agreed that, in the event the subpoenas are not set aside, they should be amended by the Court of its own motion to reflect the agreed narrowing. This appears to me to be a sensible approach (although, ultimately the view I have reached below is that subpoenas should be set aside and new subpoenas issued). The choice therefore, is not between whether the subpoenas as issued to GJW, Pagano Architects and Holding Redlich should remain standing or be set aside, but rather whether the narrowed form of each subpoena should be found to be an abuse. While the defendant’s submissions were made in relation to the subpoenas as issued, there is no difficulty in applying those submissions to the narrowed form of the subpoenas.

The narrowed subpoena to GJW

46. The amended schedule to the subpoena to GJW seeks:

“1.   Copies of all written correspondence to and from Christer Nominees Pty Ltd t/as Willis Property Group (Willis Property Group) or Peter Willis during the period 1 January 2014 to 31 December 2020 which expressly refers to in connection with property development known as 184-192 Restwell Road, Prairiewood NSW, sometimes known as "Parkview Apartments" (the Development).

2.   Copies of minutes, or other written document, recording meetings with Calabria Community Club Limited (Calabria Club) during the period 1 January 2014 to 31 December 2018 in connection with which expressly refers to the Development.

3.   Copies of all written correspondence to and from Calabria Club, including its directors, employees or contractors, recording any car space allocation for a particular unit or units in the Development.

4.   Copy of any and all versions of excel spreadsheet headed "Prairiewood Topline Summary" during the period 1 January 2015 to 31 December 2020.

5.   Copy of any written document recording proposed pricing for units in the Development during the period 1 January 2015 to 31 December 2020.

6.   Copies of all documents recording the proposed, or actual, allocation of car spaces to units in the Development during the period 1 January 2015 to 31 December 2020.

7.   Copies of all strata plans in draft and final form, for the Development.”

47. Paragraph 1 of this subpoena seeks all correspondence between GJW and the plaintiff which refers to the development. I was informed, and it is apparent from some of the correspondence tendered on the motion, that GJW was engaged as the defendant’s consultant on the development. While the drafting is broad, given the roles of the respective entities (particularly the plaintiff as the real estate agent engaged to sell the units), the correspondence can be assumed to relate to, or be very likely to relate to, the sale of units in the development.

48. It might be noted, in seeking correspondence with the plaintiff, the subpoena seeks documents the plaintiff might be thought to itself possess. However, no specific complaint was raised on this basis. The defendant complained that this paragraph is being used as a substitute for discovery. However, having regard to the observations of Hodgson JA in Bengalla Mining discussed above, I do not accept this is sufficient to establish an abuse. Further, the terms of the paragraph are explicit in identifying documents that expressly refer to the development and require no judgment on the part of the recipient in this regard. In fairness to the defendant there may have been some substance to this complaint with respect to the original form of the subpoena given its use of “in connection with”, rather than “expressly refers to”, arguably requiring judgment on the part of the recipient as to whether a document was “in connection with” the development or otherwise.

49. A further complaint made by the defendant was that the request was in the nature of a “fishing expedition”. As discussed above, what is required is “apparent relevance”. That relevance is, of course, relevance to the issues between the parties. Given that the meaning of the agreements between the plaintiff and the defendant are an issue, as is the defendant’s knowledge of Mr Willis’ relationship with a number of purchasers, I accept that communication between GJW, implicitly on the defendant’s behalf, and the plaintiff is of “apparent relevance” to understanding the relationship between the two parties. Further, while the period over which the documents are sought is lengthy, so was the time over which the units were sold. According to the statement of claim the plaintiff introduced purchasers over the period between November 2015 to March 2020.

50. Additionally, while broad, I do not think the request is oppressive. Given the business relationship, it can be presumed that the correspondence can be located by a relatively straightforward search of the recipient’s electronic records. I would uphold paragraph 1.

51. Paragraph 2 of the amended subpoena, in requiring all documentation recording meetings with the defendant, is apt to catch records dealing with any aspect of the development. As noted above, GJW was the defendant’s consultant on the project. There was no suggestion that this role was limited to the sale process or in any way confined to matters relevant as between the plaintiff and the defendant. The request therefore goes well beyond documents that relate to the defendant’s relationship with the plaintiff, the relationship between various units in the development and car parking spaces or the defendant’s knowledge of Mr Willis’ relationship with purchasers. While the requirement for “apparent relevance” admits that some documents may be caught which are ultimately not relevant, what is sought here includes what may be a large number of documents which can have no relevance. This paragraph is, in my view, impermissibly broad. Paragraph 2 lacks a legitimate forensic purpose and therefore constitutes an abuse.

52. In relation to paragraph 3, I would accept that correspondence and records dealing with car space allocations have “apparent relevance”. The understanding of the defendant’s consultant is likely to have a bearing on the instructions given by the defendant to the plaintiff with respect to the allocation of car spaces.

53. Paragraph 4 seeks copies of all versions of an excel spreadsheet called the “Prairiewood Topline Summary”. The Prairiewood Topline Summary is, according to the affidavit of the defendant’s solicitor, a document prepared by the plaintiff. It is not entirely clear why the plaintiff is (again) seeking its own documents. Be that as it may, the affidavit of the defendant’s solicitor explains that it is a spreadsheet containing a working record of sales including the number of properties for sale, sales that have settled, purchasers’ details and lots acquired by Mr Willis. Examination of a copy of one iteration of the document tendered in evidence shows that it also includes the sale price and the number of car parking spaces attached to the unit. Iterations of this document, in my view, have “apparent relevance” given the issues in dispute. The documents will indicate the understanding of the author as to, at least, the allocation of parking spaces at particular times.

54. Paragraph 5 seeks documentation as to the proposed pricing of the units. The defendant’s consultant’s records as to pricing have apparent relevance to the issues which arise with respect to the price at which various units were actually sold, particularly in relation to the apartments sold to relatives and the car park affected units.

55. Paragraph 6 seeks documents recording proposed or actual allocation of car parking spaces. Paragraph 7 seeks strata plans in both draft and final form. These documents are of apparent relevance to the defendant’s consultant’s understanding of the allocation of car parking spaces and, in turn, the instructions given by the defendant to the plaintiff in this regard.

56. It follows from the above that with the exception of paragraph 2, the narrowed subpoena is not an abuse of process. The subpoena issued to GJW should be set aside and a new subpoena issued in the terms of paragraphs 1 and 3-7 of the narrowed subpoena.

57. I note that the agreement between GJW and the defendant includes a confidentiality clause. The defendant should be granted first access to the documents produced to allow the defendant to make any application restricting access to all or some of the documents on this basis or otherwise (see orders below).

The narrowed Pagano subpoena

58. The amended Pagano subpoena seeks:

1.   Copies of all written correspondence to and from Christer Nominees Pty Ltd t/as Willis Property Group (Willis Property Group) or Peter Willis during the period 1 January 2014 to 31 December 2020 15 February 2016 which contains express reference to thein connection with the property development known as 184-192 Restwell Road, Prairiewood NSW, sometimes known as "Parkview Apartments" (the Development).

2.   Copies of minutes, or other written document, recording meetings with Calabria Community Club Limited (Calabria Club) during the period 1 January 2014 to 15 February 2016 31 December 2020 which contains express reference to thein connection with the Development.

3.   Copy of any written document recording proposed pricing for units in the Development during the period 1 January 2014 to 15 February 2016 31 December 2020.

4.   Copies of all written correspondence to and from Calabria Club, including its directors, employees or contractors, recording any car space allocation for a particular unit or units in the Development during the period 1 January 2014 to 15 February 2016 31 December 2020.

5.   Copies of all written correspondence to and from All Round Conveyancing, including its directors, employees or contractors, recording any car space allocation for a particular unit or units in the Development during the period 1 January 2014 to 15 February 2016 31 December 2020.

6.   Copy of any and all versions of excel spreadsheet headed "Prairiewood Topline Summary" during the period 1 January 2015 to 15 February 2016 31 December 2020.

7.   Copies of all documents recording the proposed, or actual, allocation of car spaces to units in the Development during the period 1 January 2014 to 15 February 2016 31 December 2020.

8.   Copies of all strata plans in draft and final form, for the Development.

59. Paragraph 1 of the subpoena seeks correspondence with the plaintiff which refers to the development. This is in essentially the same terms as paragraph 1 of the GJW subpoena. For the same reasons given above, I am of the view that this paragraph, given that the communication is with the sales agent, is framed so as to catch documents with “apparent relevance”.

60. Paragraph 2 of the subpoena is again in similar terms to the corresponding paragraph in the GJW subpoena. In this instance the subpoena is directed to the architects on the project. Their role can presumably be understood as going well beyond matters to do with pricing, car park allocation, and the plaintiff’s relationship with potential purchasers. For essentially the same reasons given above with respect to the GJW subpoena, the terms of this paragraph are apt to capture documents with no apparent relevance and constitutes an abuse.

61. Paragraphs 3, 4, 6, 7 and 8, correspond with 5, 3, 4, 6, and 7 of the GJW subpoena. The drafter’s purpose in reordering the paragraphs is not readily apparent. Despite the slight inconvenience thereby created, for essentially the same reasons given above with respect to those paragraphs of the GJW subpoena, I accept that the documents sought in these paragraphs have apparent relevance.

62. Paragraph 5 has no analogue in the GJW subpoena. It seeks all correspondence with All Round (the conveyancer engaged by the defendant for the sale of some of the units) recording car space allocations for particular units. This material has apparent relevance to the instructions given by the defendant to the plaintiff in relation to the allocation of parking spaces.

63. It follows from the above that the subpoena issued to Pagano Architects should be set aside. I would order that a subpoena be issued in the terms of paragraphs 1 and 3-8 of the narrowed subpoena to Pagano Architects.

64. It is not apparent that the defendant has any basis on which to seek to restrict the plaintiff’s access to the Pagano documents. However, erring on the side of caution an order should be made giving the defendant first access.

The subpoena to All Round

65. All Round is a conveyancing company which was engaged over a period in relation to the sale of units in the development. There has been no narrowing of the scope of the subpoena issued to All Round. The subpoena seeks:

1.   Copies of all "sales advices", or written documents issued by or on behalf of Christer Nominees Pty Ltd t/as Willis Property Group (Willis Property Group) or Peter Willis recording the particulars of sale of a unit including any car space unit or car space allocation, for units in the property development known as 184-192 Restwell Road, Prairiewood NSW, sometimes known as "Parkview Apartments" (the Development).

2.   Copies of all written correspondence to and from Willis Property Group during the period 1 January 2015 to 31 December 2018 in connection with the Development.

3.   Copies of all written correspondence to and from Peter Willis during the period 1 January 2015 to 31 December 2018 in connection with or on the subject matter of the Development.

4.   Copies of all written correspondence to and from Calabria Community Club Limited (the Club), including its directors or employees, recording the particulars of sale of a unit Including any car space unit or car space allocation, for units in the Development.

5.   Copies of written correspondence to and from the Club in relation to the purchase or prospective purchase of a unit In the Development by any of the following persons: Peter Willis, David Willis, Matthew Willis, Veronica Lynne Pellaers and Lynne Pellaers, during the period 1 January 2015 to 1 July 2021.

6.   Copies of written correspondence to and from the Club in relation to the sale or prospective sale of apartment 8103, C401, C501, C503, D301, C404 or A204 of the Development, during the period 1 January 2015 to 1 July 2021.

7.   Copies of written correspondence to and from the Club in relation to the sale or prospective sale of unit numbered 204,105,409,412, 509, 511, 313 of the Development during the period 1 January 2015 to 1 July 2021.

8.   Copies of written correspondence to and from the Club in relation to the sale or prospective sale of lot numbered 6, 23, 57, 60, 61, 63 or 84 of the Development during the period 1 January 2015 to 1 July 2021.

9.   Copy of any and all versions of the excel spreadsheet headed "Prairiewood Topline Summary" during the period 1 January 2015 to 31 December 2018.

10.   Copy of any written document recording proposed pricing for units in the Development during the period 1 January 2015 to 31 December 2018.

11.   Copies of all documents recording the proposed, or actual, allocation of car spaces to units In the Development during the period 1 January 2015 to 31 December 2018.

12.   Copies of all strata plans in draft and final form, for the Development.

13.   Copies of all executed Contracts for Sale of Land for units in the Development (Contracts for Sale).

14.   Copies of any correspondence in the period 1 July 2020 to 30 June 2021 with solicitors or conveyancers acting for purchasers of units in the Development advising a settlement date for the Contracts for Sale and/or calling for settlement of the Contracts for Sale.

15.   Copies of any and all settlement sheets or other documents recording the date of settlement, the sale price and/or any adjustments to the sale price made on completion for any unit in the Development.

66. With respect to paragraph 1, the plaintiff maintains that it is required to prove its introduction of purchasers for each contract. Further, it maintains that the conveyancer’s record of the sales advice issued by the plaintiff is reflective of the receipt of that advice by the defendant. I accept that the documents have apparent relevance on this basis.

67. Paragraphs 2 and 3 seek copies of all written correspondence with the plaintiff and Mr Willis respectively, “in connection with” the development regardless of the subject matter. While, given the relationship between the parties, it can be assumed that such correspondence will relate to the sale of individual units, the breadth of these paragraphs is apt to catch documents with no relevance to the issues between the parties. Unlike the paragraph 1 in the subpoenas to GJW and Pagano which are superficially similar, these documents (being between the plaintiff and the defendant’s conveyancer) do not strike me as relevant to the relationship between the plaintiff and the defendant. These paragraphs are not within the proper scope of a subpoena.

68. Documents caught by paragraph 4 are relevant to the defendant’s knowledge of the sale of particular units, and its response, including with respect to the allocation of car parking. I would uphold this paragraph.

69. Paragraphs 5 and 6 deal with the sale of apartments to relatives, both by reference to the particular individuals and the particular apartments. There is, however, no basis to think that the conveyancer would hold information dealing with the relationship between those persons and the plaintiff, or the defendant’s knowledge of it. I therefore see no apparent relevance in these documents.

70. Paragraphs 7 and 8 seek correspondence in relation to particular numbered units. According to correspondence between the parties, these are simply alternative identifiers for the same units referred to in paragraph 6. These paragraphs therefore fail on the same basis.

71. I have dealt with the apparent relevance of the Prairiewood Topline Summary sought in paragraph 9 in dealing with the GJW subpoena above. Paragraph 10 seeks documents recording proposed pricing. Such documents have apparent relevance given the defendant’s claim that properties were sold at less than their true value. Paragraph 11 relates to the allocation of car spaces. Such documents have apparent relevance for reasons discussed above in relation to the GJW subpoena. Paragraph 12 relates to copies of strata plans, the apparent relevance of which has also been dealt with above. Paragraph 13 seeks copies of executed contracts of sale. Such documents will provide a record of sale price, car parking allocation and the named agent with respect to the sale. These documents have apparent relevance. Paragraphs 14 and 15 relate to the timing of sales and have relevance with respect to the time at which commissions are claimed, and on that basis have apparent relevance.

72. It follows from the above the subpoena to All Round should be set aside and that a subpoena be issued in the terms of paragraphs 1, 4, and 9-15 of the original subpoena to All Round.

73. It is not apparent that the defendant has any basis on which to seek to restrict the plaintiff’s access to the All Round documents. However, erring on the side of caution an order should be made giving the defendant first access.

The narrowed subpoena to Holding Redlich

74. Holding Redlich solicitors took over the conveyancing role from All Round. A copy of the narrowed form of the subpoena to Holding Redlich seeks:

1.    Any document held by Holding Redlich that contains express reference to a lot (whether proposed or registered as a lot in SP102232) in the land at 184-192 Restwell Road, Prairiewood NSW, sometimes known as “Parkview Apartments” (the Development), in a file maintained by Holding Redlich for the conveyance of a lot in the Development, of which document is one or more of:

1.(a)   Copies of all "sales advices", or written documents issued by or on behalf of Christer Nominees Pty Ltd t/as Willis Property Group (Willis Property Group) or Peter Willis recording the particulars of sale of a unit including any car space unit or car space allocation, for one or more lots units or proposed lots in the property development known as 184-192 Restwell Road, Prairiewood NSW, sometimes known as “Parkview Apartments” (the Development).

2.(b)    Copies of all written correspondence to and frombetween Willis Property Group and any one or more of:

i. Holding Redlich;

ii. Calabria Community Club Limited (the Club); or

iii. Joanne Doueihi personally, or trading as All Round Conveyancing

during the period 1 July 2018 to 31 December 2020 which contains express reference to both the in connection with the Development, or any unit therein.

3.(c)    Copies of all written correspondence to and frombetween Peter Willis and any one or more of:

iv. Holding Redlich;

v. the Club; or

vi. Joanne Doueihi personally, or trading as All Round Conveyancing

during the period 1 July 2018 to 31 December 2018 in which contains express reference to connection with or on the subject matter of the Development, or any unit therein.

4.(d)    Copies of all written correspondence to and from Calabria Community Club Limited ( between the Club), including its directors, employees or contractors, toand one or more of: Holding Redlich, Joanne Douiehi, All Round Conveyancing, recording the particulars of sale of a unit including any car space unit or car space allocation, for units in the Development during the period 1 January 2015 to 31 December 2020.

5.(e)    Copies of written correspondence between to and from the Club and one or more of: Holding Redlich, Joanne Douiehi, All Round Conveyancing, any solicitor or conveyancer acting for Peter Willis, David Willis, Matthew Willis, Veronica Lynne Pellaers or Lynne Pellaers, in relation to the purchase or prospective purchase of a unit in the Development by any of the following persons: Peter Willis, David Willis, Matthew Willis, Veronica Lynne Pellaers and Lynne Pellaers, during the period 1 January 2015 to 1 July 2021.

6.(f)    Copies of written correspondence to and from the Club in relation to the sale or prospective sale of the property comprising one or more of the following units in the Development identified as apartment B103, C401, C501, C503, D301, C404 or A204, during the period 1 January 2015 to 1 July 2021, whether the property is described by lot number, unit number or apartment number, as follows:-

Lot number	Unit number (strata plan)	Apartment number (if known)
6	204	A204
23	105	B103
57	409	C401
60	412	C404
61	509	C501
63	511	C503
84	313	D301

7.   Copies of written correspondence to and from the Club in relation to the sale or prospective sale of one or more of the units in the Development identified as unit numbered 204, 105, 409, 412, 509, 511 or 313 during the period 1 January 2015 to 1 July 2021.

8.    Copies of written correspondence to and from the Club in relation to the sale or prospective sale of one or more of the units in the Development identified as lot numbered 6, 23, 57, 60, 61, 63 or 84 during the period 1 January 2015 to 1 July 2021.

9.(g)   Copy of any and all versions of the excel spreadsheet headed “Prairiewood Topline Summary” during the period 1 January 2015 to 31 December 2020.

10.(h)   Copy of any written document recording proposed or suggested pricing for units in the Development during the period 1 January 2015 to 31 December 2020.

11.(i)   Copies of all documents recording the proposed, or actual, allocation of car spaces to units in the Development during the period 1 January 2015 to 31 December 2020.

12.(j)   Copies of all strata plans in draft and final form, for the Development

13.    Copies of the front page of all executed Contracts for Sale of Land as signed by a purchaser (whether or not the sale proceeded to completion) for units in the Development (Contracts for Sale).

14.    Copies of any correspondence in the period 1 July 2020 to 30 June 2021 with solicitors or conveyancers acting for purchasers of units in the Development advising a settlement date for the Contracts for Sale and/or calling for settlement of the Contracts for Sale.

15.   Copies of any and all settlement sheets or other documents recording the date of settlement, the sale price and/or any adjustments to the sale price made on completion for any unit in the Development.

75. In its original form, the schedule was in identical terms to that issued to All Round other than with respect to the periods over which documents were sought. In its narrowed form, each paragraph still corresponds with a paragraph of the original. The reasoning above in relation to the All Round subpoena is therefore relevant to this subpoena.

76. Paragraphs 1(a), (d), (e), (g), (h), (i) and (j) survive for the reasons given in relation to the corresponding paragraphs of the All Round subpoena.

77. Paragraphs 1 (b), (c) and (f), fail for the reasons given in relation to paragraphs 2, 3 and 5-8 of the All Round subpoena.

78. The Holding Redlich subpoena should be set aside and a new subpoena issued in the terms of paragraphs 1(a), (d), (e), (g), (h), (i) and (j) of the narrowed subpoena to Holding Redlich.

79. There is a potential claim in relation to client legal privilege by the defendant. The defendant should have first access to the documents, as outlined in the orders below.

80. Costs

81. Each party has had a measure of success on the motion. Each should pay its own costs.

Orders

82. I make the following orders:

1. In relation to the GJW subpoena:

1. The subpoena be set aside;

2. Any documents produced by Gary John Watts trading as GJW Consultancy in answer to this subpoena be returned to Mr Watts;

3. A subpoena be issued to Mr Watts in the terms of paragraphs 1 and 3-7 of the narrowed draft subpoena sent to Mr Watts on 3 November 2021;

4. The time to comply with the subpoena is 9:00 am 14 days from the date of this judgment;

5. The defendant is to have first access to the documents produced pursuant to the subpoena for a period of 7 days, during which the defendant if it so wishes, is to make any application to restrict access to the documents produced on the basis of its confidentiality agreement with Mr Watts or otherwise; and

6. General access is granted after the 7 days referred to in (1)(e) above, subject to any such application.

2. In relation to the Pagano subpoena:

1. The subpoena be set aside;

2. A subpoena be issued to Pagano Architects Pty Ltd in the terms of paragraphs 1 and 3-8 of the narrowed draft subpoena sent to Pagano Architects Pty Ltd on 5 November 2021;

3. The time to comply with the subpoena is 9:00 am 14 days from the date of this judgment;

4. The defendant is to have first access to the documents produced for a period of 7 days, during which the defendant if it so wishes, is to make any application to restrict access to the documents; and

5. General access is granted after the 7 days referred to in (2)(d) above, subject to any such application.

3. In relation to the All Round subpoena:

1. The subpoena be set aside;

2. Any documents produced by Joanne Doueihi trading as All Round Conveyancing in answer to this subpoena be returned to Ms Doueihi;

3. A subpoena be issued to Ms Doueihi in the terms of paragraphs 1, 4, 9-15 of the original subpoena issued to Ms Doueihi;

4. The time to comply with the subpoena is 9:00 am 14 days from the date of this judgment;

5. The defendant is to have first access to the documents produced pursuant to the subpoena for a period of 7 days, during which the defendant if it so wishes, is to make any application to restrict access to the documents produced; and

6. General access is granted after the 7 days referred to in (3)(e) above, subject to any such application.

4. In relation to the Holding Redlich subpoena:

1. The subpoena be set aside;

2. A subpoena be issued to Holding Redlich in the terms of paragraphs 1(a), (d), (e), (g), (h), (i) and (j) of the proposed narrowed subpoena annexed to the affidavit of Lydia Isobel O’Keeffe filed on 22 December 2021 and marked LIO-13;

3. The time to comply with the subpoena is 9:00 am 14 days from the date of this judgment;

4. The defendant is to have first access to the documents produced pursuant to the subpoena for a period of 7 days, during which the defendant if it so wishes, is to make any application to restrict access to the documents on the basis of legal professional privilege or otherwise; and

5. General access is granted after the 7 days referred to in (4)(d) above, subject to any such application.

5. Prayer 3 of the motion is dismissed.

6. Order that each party pay its own costs on the motion.

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Decision last updated: 18 March 2022