Gorczynski v W and FT Osmo Pty Limited - [2018] NSWSC 1107

Supreme Court

New South Wales

Medium Neutral Citation: Gorczynski v W & FT Osmo Pty Limited [2018] NSWSC 1107
Hearing dates: 27 June 2018
Date of orders: 20 July 2018
Decision date: 20 July 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The plaintiff’s amended notice of motion dated 19 March 2018 is dismissed.
(2) The plaintiff is to pay the respondents’ costs on an ordinary basis.
Catchwords: PRACTICE AND PROCEDURE- Preliminary discovery- whether plaintiff has confined orders sought for disclosure, discovery and production to a defined time period - whether plaintiff has defined the specific category of documents required - respondents not required to provide preliminary discovery
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Gorczynski v W & FT Osmo Pty Ltd [2010] NSWCA 163
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133
Wright Medical Australia Pty Limited v Johnston [2017] NSWSC 761
Category: Procedural and other rulings
Parties: Peter Francis Gorczynski (Plaintiff)
W & FT Osmo Pty Limited (First Respondent)
Michelle Sarah Hale (Second Respondent)
Tammy Meyer (Third Respondent)
Robert Ebner (Fourth Respondent)
Vadim Topolinsky (Fifth Respondent)
Bradd Morelli in his capacity as liquidator of TOP Consulting OSMO Group Pty Ltd (Sixth Respondent)
Representation:
Counsel:
M Luitingh (Plaintiff)
J O’Sullivan (Second, Third & Fourth Respondents)
C Lambert (Fifth Respondent)
Solicitors:
& Legal (Second, Third & Fourth Respondents)
Cohen & Krass (Fifth Respondent)

File Number(s): 2008/289619
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 19 March 2018, the plaintiff seeks orders for preliminary discovery. At the hearing of this amended motion, orders (1) and (2) were not pressed. That leaves orders (3) to (8) to be dealt with. These are as follows:

(3) An order that the executors of the estates of William Osmo and Fortunee Toni Osmo (“Toni Osmo”) and/or Mr Robert Ebner provide the plaintiff with details of the whereabouts of the books, financial records and documents relating to the examinable affairs of W & FT Osmo Pty Ltd (also known as Osmo & Associates Pty Ltd), being “books”, “financial records” and “examinable affairs” as defined in s 9 of the Corporations Act 2001 (Cth). (Order for disclosure).

(4) An order that the executors of the respective estates of William Osmo and Toni Osmo and/or the executors’ solicitor Mr Robert Ebner furnish to the plaintiff the books, financial records and documents relating to the examinable affairs of W & FT Osmo Pty Ltd (also known as Osmo & Associates Pty Ltd), being “books”, “financial records” and “examinable affairs” as defined in s 9 of the Corporations Act. (Produce the documents).

(5) Further or in the alternative to Order 4 above, an order pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 5.3 and 5.4 that the executors of the respective estates of William Osmo…

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: [2018] NSWSC 1107
Decision Date: 20 July 2018

CaseChat Overview and Summary

The parties in this case were Gorczynski, the plaintiff, and W and FT Osmo Pty Limited, the defendants. The dispute arose in the Federal Circuit Court, with the plaintiff seeking a preliminary discovery order to compel the defendants to disclose, discover, and produce documents. The plaintiff argued that the defendants had engaged in deceptive and misleading conduct under the Australian Consumer Law, and sought specific documents that were relevant to this claim. The defendants opposed the application, arguing that the plaintiff had not sufficiently defined the time period for which the discovery was sought, nor the specific category of documents required.

The legal issues the court had to decide were whether the plaintiff had confined the orders sought for disclosure, discovery, and production to a defined time period, and whether the plaintiff had defined the specific category of documents required. The court considered the relevant case law, which required that the plaintiff's application for preliminary discovery must be limited to a defined period and to the specific category of documents required. The court also noted that the plaintiff's application was made at a very early stage in the proceedings, and that the plaintiff had not yet filed a statement of claim.

The court found that the plaintiff had not sufficiently defined the time period for which the discovery was sought, nor the specific category of documents required. The court noted that the plaintiff's application was overly broad and did not meet the requirements set out in the relevant case law. The court also noted that the plaintiff had not yet filed a statement of claim, and that the defendants had not been given an opportunity to respond to the plaintiff's allegations. The court held that the plaintiff's application for preliminary discovery was not appropriate at this stage of the proceedings, and that the defendants were not required to provide preliminary discovery.

The final orders of the court were that the plaintiff's application for preliminary discovery was dismissed, with costs to be paid by the plaintiff. The court noted that the plaintiff was free to make a new application for discovery once a statement of claim had been filed, and once the plaintiff had defined the specific category of documents required and the time period for which the discovery was sought.

Orders