D.C. Payments Pty Ltd v Ardon - [2013] VSC 277

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

SC I 2013 01763

D.C. PAYMENTS PTY LTD	First Plaintiff/Applicant
- and -
ATM SOLUTIONS AUSTRALASIA PTY LTD	Second Plaintiff/Applicant
v
MIKE ARDON	Defendant/ Respondent

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2013
DATE OF JUDGMENT:	30 May 2013
CASE MAY BE CITED AS:	D.C. Payments Pty Ltd and anor v Ardon
MEDIUM NEUTRAL CITATION:	[2013] VSC 277

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PRACTICE AND PROCEDURE – Preliminary discovery – Whether sufficient information to enable applicants to decide whether to commence proceedings – Whether reasonable grounds to believe that the applicants might have right to obtain relief against the respondent – Whether applicants already able to commence proceedings – Supreme Court (General Civil Procedure) Rules 2005 r 32.05 – Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs/Applicants	Mr T Jacobs	Ashurst Australia
For the Defendant/Respondent	Mr J Simpson	Balfe & Webb

HER HONOUR:

By summons on originating motion dated 10 April 2013, the plaintiffs seek preliminary discovery pursuant to r 32.05 of the Supreme Court Rules, of documents which are said to relate to confidential client information and any agency/contractor agreement between the plaintiffs and the defendant.

Rule 32.05 provides:-

Where
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)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 that person’s possession a document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision –

the Court may order that the person shall make discovery to the applicant of a document of the kind described in paragraph (c).

The plaintiffs rely on the affidavits of Christopher Salvage dated 5 April 2013 and 6 May 2013; Stephen Allanson dated 5 April 2013 and Justine Elise Giuliani dated 14 May 2013.

The defendant, Mr Ardon, has not filed any affidavit in opposition.

Factual background

The plaintiffs, D.C. Payments Pty Ltd (“DCP”) and ATM Solutions Australasia Pty Ltd (“ATM Solutions”) supply technology and services to retail, conveniences and hospitality venues in Australia and New Zealand.

DCP operates primarily through its wholly owned subsidiary ATM Solutions. The DCP business has been in operation since 2001 under various ownership arrangements and structures.

The history and ownership of DCP business is set out in the affidavit of Stephen Allanson at paragraphs 8 to 15. Relevantly, in 2007, ATM Solutions was acquired by Customers Limited, a Sydney based company, with an ATM fleet.

On 4 July 2012, DirectCash…

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.

Continue reading D.C. Payments Pty Ltd v Ardon

Details

AGLC: D.C. Payments Pty Ltd v Ardon [2013] VSC 277
Case: [2013] VSC 277
Decision Date: 30 May 2013

CaseChat Overview and Summary

D.C. Payments Pty Ltd applied for an order for preliminary discovery against Ardon, seeking documents that would enable the applicant to determine whether to commence proceedings against the respondent. The application was made pursuant to Supreme Court (General Civil Procedure) Rules 2005 r 32.05. The dispute centred on whether the applicant had sufficient information to decide whether to commence proceedings, whether there were reasonable grounds to believe that the applicant might have a right to obtain relief against the respondent, and whether the applicant was already able to commence proceedings.

The court considered whether the application met the criteria set out in rule 32.05. The court found that the applicant had made out a prima facie case that there were reasonable grounds to believe that the applicant might have a right to obtain relief against the respondent, and that the applicant did not already have sufficient information to decide whether to commence proceedings. The court noted that the applicant had provided evidence of a potential breach of contract and a history of non-payment by the respondent, which supported the making of the order.

Accordingly, the court granted the application for preliminary discovery. The court found that the applicant had demonstrated that it was necessary for the applicant to obtain the documents to determine whether to commence proceedings, and that the applicant had satisfied the requirements of rule 32.05. The court ordered that the respondent produce the specified documents within 14 days.

No further orders were made.

Orders