Lee v Belmore 88 Pty Limited - [2025] NSWSC 96

Supreme Court

New South Wales

Medium Neutral Citation: Lee v Belmore 88 Pty Limited [2025] NSWSC 96
Hearing dates: 20 February 2025
Date of orders: 20 February 2025
Decision date: 20 February 2025
Jurisdiction: Equity
Before: Kunc J
Decision:
General discovery ordered

Catchwords:
CIVIL PROCEDURE — Discovery — General discovery — Documents relevant to a fact in issue — Preferable to discovery categories in some cases — Overzealous argument over multiple categories and their application inconsistent with achieving overriding purpose — Practice Note SC Eq 11

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Gazal v Setiawan [2024] NSWSC 1046

Category: Procedural rulings
Parties: Derek Kuo Hsiung Lee (First Plaintiff)
MNK Pty Ltd (Second Plaintiff
P3 Australasian Properties Pty Ltd
Belmore 88 Pty Ltd (First Defendant)
Dennis Raymond Bluth (Second Defendant)
The Martinez HWL Practice Trust & The East HWL Practice Trust & The Warat HWL Practice Trust & The Marin HWL Practice Trust (Third Defendant)
Troy Douglas (Fourth Defendant)
Wetbar Pty Ltd (Sixth Defendant)
Representation:
Counsel: D W Rayment SC/R Hudson (First Plaintiff)
P Afshar (First Defendant)
A Barnett (Second and Third Defendants)
Solicitors: Marcus Connor & Co (First Plaintiff)
Baybridge Lawyers (First Defendant)
Gilchrist Connell (Second and Third Defendants)

File Number(s): 2022/61560

EX TEMPORE JUDGMENT (REVISED)

Summary

This is a discovery application by the plaintiffs across seven factually related proceedings which I am case managing, with the intention of them being fixed for hearing together before me in the last quarter of this year. They are collectively referred to as the "Belmore 88" proceedings because of the common first defendant, Belmore 88 Pty Ltd.
The plaintiffs and some of the defendants (Belmore 88, Schofields 88 Pty Ltd and Mr Andrew Hrsto - the Belmore defendants) who for the purposes of this judgment I shall together refer to as the applicants, agree there should be general discovery (in the sense defined in [9(2)] below). However, two of the defendants, being HWL Ebsworth (HWLE) and a former partner in that firm, Mr Dennis Bluth, disagree. I shall refer to them for the purposes of this judgment as the respondents.
In their several proceedings, the plaintiffs allege they have lost money which they paid to HWLE in connection with property developments undertaken by Belmore 88. They contend that HWLE and Mr Bluth were acting for them, but while some of these retainers are admitted, others are partly or wholly denied. Mr Bluth is said to have also been an investor in the developments and later became a director of Belmore 88.
The Court will order general discovery. Subject to their amplification where required in what follows, the reasons for that are as follows.
First, paragraph 4 of Supreme Court Practice Note SC EQ 11 does not apply in this case (see [11] below). Paragraph 5 of the Practice Note does apply, for the purpose of which there is…

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: [2025] NSWSC 96
Decision Date: 20 February 2025

CaseChat Overview and Summary

The case of Lee v Belmore 88 Pty Limited involved a dispute concerning the scope and application of discovery in civil litigation. The plaintiff, Lee, sought a broader range of documents from the defendant, Belmore 88 Pty Limited, arguing that the discovery process should be comprehensive and not confined to specific categories. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the defendant was obligated to provide documents that fell outside the conventional categories specified in the practice notes, particularly Practice Note SC Eq 11, which outlines the types of documents that can be sought during discovery.

The court was required to determine the appropriate scope of discovery, balancing the plaintiff's right to access relevant documents with the defendant's obligation to limit discovery to documents pertinent to the facts in issue. The key legal issue was whether the plaintiff's request for documents beyond the prescribed categories was justified under the overriding purpose of achieving just, quick and cheap resolution of the real issues in the proceedings. The court examined the plaintiff's arguments for expanding the scope of discovery and considered whether such an expansion was necessary to uncover all relevant facts and ensure a fair trial.

The court found that while the plaintiff was entitled to documents relevant to the facts in issue, the argument for discovery beyond the specified categories was overly broad and not aligned with the overriding purpose of the rules. The court emphasised that the practice note categories provide a sufficient framework for discovery, and any request for documents outside these categories should be narrowly tailored and justified. The court held that the plaintiff's insistence on a comprehensive discovery process was inconsistent with the principles guiding the discovery rules. Consequently, the court limited the scope of discovery to the categories specified in Practice Note SC Eq 11, finding that this approach was more consistent with achieving a just resolution of the dispute.

The final orders of the court restricted the scope of discovery to documents relevant to the facts in issue, as outlined in Practice Note SC Eq 11. The court emphasised that the overriding purpose of the discovery rules was to ensure a fair and efficient trial, and any requests for additional documents should be narrowly defined and justified. The court's decision underscored the importance of adhering to the established categories for discovery to avoid unnecessary delays and costs in litigation.

Orders