Energy Hydraulics Pty Ltd v Gurisik, A.T

[1992] FCA 403

IN THE FEDERAJl COURT OF AUSTRAJlIA) JUffiMEbff NO. urd-	403 92
NEW SOUTH WALES DISTRICT REGISTRY)	No NG 513 of 1991
GENERAL DIVISION	1

BETWEEN ENERGY HYDRAULICS PTY
LIMITED [RECEIVER AND

MANAGER APPOINTED) & ANOR

FMC CHAINS PTY LIMITED

(RECEIVER & MANAGER

APPOINTED	l
Applicant

AND AHMET TUNC GURISIK

Respondent
PETER OWEN MORLEY
Second Respondent
SERMET GURISIK
Third Respondent
VEDIT KURANGIL
Fourth Respondent
DAVID MORLEY
Fifth Respondent
STEPHEN MORLEY
Sixth Respondent

companies called Energy Hydraulics Pty Limited and FMC Chains	that the applicant, who is the Receiver and Manager of two
Pty Limited, filed an application on 9 September 1991 seeking orders for discovery under order 4 rule 17 and order 15A rule 3. Each of these rules permits a person who is contemplating commencing substantive proceedings in the Court to obtain information designed to reveal the identity or description of a person or persons against whom such proceedings might be taken. Both rules permit the Court to order a person who might be able to supply information on this matter to attend for oral examination and to produce any document or other item to that end.
The applicant sought orders for the attendance before the Court of the persons named in the application as the first to sixth respondents. Orders were also sought that each of these persons and the seventh respondent company produce various documents. The only permissible oral examination or production of documents that could have been allowed in this application was that which would have caused or tended to cause the revelation of the identity or description of a
person against whom suit could be brought.
It is not immediately clear as to what precise suit was in mind but the material produced on the application indicates that there may have been breaches of various directors' duties as laid down by the Corporations Law. As counsel for the Receiver pointed out, there may also have been actions for conversion of certain goods of one or other of the two companies. The matter has ultimately been settled in that in response to a request for specific information, the Receiver has apparently been supplied with as much information as he believes he is likely to obtain.
The respondents seek costs of the present application for discovery. In support of their application for costs, they argue first that few inquiries were made of them prior to the application. Certainly they were not such as to come within the requirement of the rules that reasonable inquiry should be made before an application such as this one is filed. Second, the respondents say that they have always been prepared to supply the Receiver with the information that he sought and that the information sought in the present application for pre-trial discovery was never requested of them prior to its filing.
From the evidence, it is true that the Receiver did seek information from at least some, perhaps all, of the respondents. However, all the information sought related to
The Receiver points out, with apparent force, that there were employees or people otherwise connected with the companies. the companies' activities or the activities of directors,
some very unsatisfactory answers given to his questions on those matters. He said that the reports as to the affairs of the companies, which are required by law, were either inadequate or not supplied at all. On the other hand, as it seems to me, these matters would not assist to establish the identity or description of a person against whom action should be brought but go to the nature and substance of the ultimate action itself.
No action has as yet been commenced by the Receiver against any of these respondents. I agree with counsel for the Receiver that a number of matters appear to require answers in terms of the law in general. However, it is a basic requirement of the rules in question that an applicant make reasonable inquiries, prior to the filing of an application, to ascertain the identity or description of a person, which would obviously include a company, against whom action for substantive relief might be launched. I am unable to see how the Receiver has established that he had made such inquiries. In fact he seems to have made no inquiries of this kind at all; rather his inquiries appear to have been directed to obtaining evidence to found the actions he wished to take against particular people of whom he was already aware.
In those circumstances it seems to me that the application was premature and that the respondents have been put to costs which might and should have been avoided. Notwithstanding that at least some respondents do appear to have significant
matters to answer in terms of substantive law, they have been caused expense in dealing with an interlocutory matter which should not have been imposed on them. I therefore order that
the applicant pay the respondents' costs of the preliminary application.
The application is dismissed by consent. . - .,~" ' .-

AT HYDRAULICS PTY LIMITED

Seventh Respondent

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 13 APRIL 1992

I will not give detailed reasons in this matter unless asked to do so. It will suffice for present purposes to observe

-_ 7 . -.l______ -,