Fantid Pty Ltd v Jinyi Xing - [2011] NSWSC 401

Supreme Court

New South Wales

Medium Neutral Citation: Fantid Pty Ltd v Jinyi Xing [2011] NSWSC 401
Hearing dates: 28 March 2011
Decision date: 28 March 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Preliminary discovery refused

Catchwords: PRACTICE AND PROCEDURE - application for preliminary discovery -decision as to whether plaintiff commences proceedings extends beyond whether claim has an arguable basis to consideration of prospects of success - plaintiff appears to have decided to bring case - defendant indicates to court that does not retain documents sought to be discovered - held: no utility in making order for preliminary discovery
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 5.3
Cases Cited: Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883
Ian Edward Morton & Ors v Nylex Ltd & Anor [2007] NSWSC 562
Category: Principal judgment
Parties: Fantid Pty Ltd: (plaintiff)
Jinyi Xing: (defendant)
Representation: Counsel:
Mr G George (plaintiff)
Mr Jinyi Xing (defendant in person)
Solicitors:
Kalfus Legal (plaintiff)

File Number(s): 2011/79795

Judgment ( ex tempore )

HIS HONOUR: By summons filed on 20 March 2011 the plaintiff Fantid Pty Ltd claims an order for preliminary discovery under UCPR rule 5.3 against the defendant, its former employee Jinyi Xing, whose employment was terminated in late February of this year.

A few days after the termination of his employment, the defendant sent the plaintiff a claim for termination pay, which included a claim for "MYOB service, maintenance, set up, coaching", etc. The plaintiff was intrigued by this and made further enquiries, eliciting a response on 2 March 2011, which described the MYOB service work as having been done at home, "because office is too noisy to do this kind of work", and describing the work as relating to calculation of employee entitlements including leave, sick leave and wages, as well as MYOB software maintenance. On 7 March 2011, the plaintiff's solicitors wrote to the defendant drawing attention to the claim that these works were done at home, contending that these were not works outside or additional to the contract of employment, and relevantly asserting that the defendant had not been authorised or permitted to remove any of its records, information or data so as to perform such services at home. The letter went on to demand that the defendant provide extensive information and verification as to what, if any, information of the plaintiff he had in his possession. It referred to "your own admission to downloading a copy of our client staff employment records", and concluded:

We are instructed to advise that if you do not fully comply with our client's requirements as set out in paragraphs (1) to (6) above in every respect, we are to immediately, without further notice or reference to you whatsoever, apply to the Supreme Court for appropriate injunctions in terms of paragraphs (1) to (6) above and such other orders as our client might be advised including an order for damages, resulting from your breach of your employment…

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: [2011] NSWSC 401
Decision Date: 28 March 2011

CaseChat Overview and Summary

Fantid Pty Ltd initiated proceedings against Jinyi Xing in the Federal Court of Australia. The case pertains to a dispute involving preliminary discovery, where the plaintiff seeks to obtain specific documents from the defendant. The plaintiff contends that these documents are crucial for determining the viability of their claims, which revolve around alleged breaches of fiduciary duty and unjust enrichment.

The primary legal issue before the court was whether to grant the plaintiff's application for preliminary discovery. This involved examining whether the decision to proceed with the litigation extends beyond the mere existence of an arguable basis for the claim, to the prospects of the case's success. The court needed to determine if the plaintiff had indeed decided to bring the case forward and if there was a necessity for the discovery of the documents sought.

In reaching its decision, the court considered that the plaintiff's decision to commence proceedings was not solely dependent on whether the claim had an arguable basis but also encompassed the likelihood of success. The court noted that the defendant had informed it that it did not retain the documents sought by the plaintiff. Consequently, the court concluded that there was no utility in making an order for preliminary discovery, as the documents were not available, and their absence did not affect the plaintiff's decision to proceed with the litigation.

Orders