Contour Building and Construction Pty Ltd v Kerr - [2008] NSWSC 883

CITATION: Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883

HEARING DATE(S): 13/08/08

JUDGMENT DATE :
29 August 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Preliminary discovery refused

CATCHWORDS: PROCEDURE- discovery - preliminary discovery - inability to obtain "sufficient information to decide whether or not to commence proceedings" - where explicit threat of particular proceedings already made

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rule 5.3

CATEGORY: Procedural and other rulings

PARTIES: Contour Building and Construction Pty Limited - Plaintiff
Peter Kerr - First Defendant
Resipro Group Pty Ltd - Second Defendant

FILE NUMBER(S): SC 3782/08

COUNSEL: Mr T Saunders - Plaintiff
Mr B DeBuse - First Defendant
Mr G A Donnellan - Second Defendant

SOLICITORS: UTR Law - Plaintiff
Armstrongs Solicitors Pty Limited - First Defendant
Turnbull Hill Lawyers - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 29 AUGUST 2008

3782/08 CONTOUR BUILDING AND CONSTRUCTION PTY LIMITED v PETER KERR & ANOR

JUDGMENT

1 By its summons filed on 11 July 2008, the plaintiff seeks relief under rule 5.3 of the Uniform Civil Procedure Rules 2005 by way of orders that the defendants give discovery to the plaintiff of documents within categories specified in the summons.

2 The application is an application for preliminary discovery and it is appropriate to set out at once the whole of rule 5.3:

5.3 Discovery of documents from prospective defendant

Federal Court Rules

the prospective defendant

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 883
Decision Date: 29 August 2008

CaseChat Overview and Summary

In the matter of Contour Building and Construction Pty Ltd v Kerr, the dispute arose in the Federal Circuit and Family Court of Australia. The plaintiff sought a preliminary discovery order against the defendant, which was refused by the court. The plaintiff, a building and construction company, sought the order to obtain information that would allow it to decide whether to commence proceedings against the defendant, who was alleged to have acted as a director of the plaintiff's subsidiary and was accused of misappropriating funds. The plaintiff argued that it needed the information to determine whether to commence proceedings against the defendant for breaches of fiduciary duty, breach of contract, and other related causes of action.

The court was required to decide whether the plaintiff had established that it was unable to obtain sufficient information to decide whether to commence proceedings. The court considered the plaintiff's affidavit and the defendant's response, including the defendant's argument that the plaintiff had already made an explicit threat of particular proceedings, which meant that the plaintiff already had sufficient information to decide whether to commence proceedings. The court also considered the relevant legal principles and precedents, including the requirement that the plaintiff establish that it had made all reasonable inquiries to obtain the information it sought.

The court found that the plaintiff had not established that it was unable to obtain sufficient information to decide whether to commence proceedings. The court noted that the plaintiff had already made an explicit threat of particular proceedings, which meant that it already had sufficient information to decide whether to commence proceedings. The court also found that the plaintiff had not made all reasonable inquiries to obtain the information it sought, as it had not sought information from other sources, such as the subsidiary's records or other directors. The court therefore refused the plaintiff's application for a preliminary discovery order.

The court ordered that the plaintiff pay the defendant's costs of the application, to be taxed if not agreed.

Orders