MA v Hickory Building Systems Pty Ltd - [2018] VSC 813

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S CI 2018 00533

MA HUAISHENG	Applicant
v
HICKORY BUILDING SYSTEMS PTY LTD (ACN 134 548 468) AND OTHERS (according to the schedule)	Respondents

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2018; further submissions 19 April 2018
DATE OF JUDGMENT:	20 December 2018
CASE MAY BE CITED AS:	Ma v Hickory Building Systems Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 813

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PRACTICE AND PROCEDURE – Preliminary discovery – Applicant made payments to first to sixth respondents pursuant to an agreement between him and the sole shareholder and director of the seventh respondent - Seventh respondent received the sole benefit of those payments to the exclusion of the applicant – No contract between applicant and first to sixth respondents - Applicant contends agreement between the first to sixth respondents and the seventh respondent may be void for incompleteness or uncertainty – Whether the applicant has sufficient information to decide whether to commence a proceeding – Whether the documents sought will assist the applicant to make that decision – Whether the documents sought are in, or likely to be in, the possession of the respondent – Supreme Court (General Civil Procedure) Rules 2015 r 32.05 – Application granted against first to sixth respondents - Application refused against seventh respondent.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Collins QC with Ms A Robertson	Norton Rose Fulbright Australia
For the First to Sixth Respondents	Mr M I Borsky QC with Ms G Coleman	Arnold Bloch Leibler
For the Seventh Respondent	Mr C M Caleo QC with Mr D F McAloon	B2BLawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

Parties to this proceeding............................................................................................................ 2
Discussions about the proposed venture.................................................................................. 4
Heads of Agreement..................................................................................................................... 5
Subsequent developments.......................................................................................................... 8
Payment of first two instalments and Transaction Agreement.................................... 8
Payment of third instalment............................................................................................ 10
Events after October 2015................................................................................................. 12
Requests for documents................................................................................................... 13

Legal principles................................................................................................................................ 14

Application........................................................................................................................................ 18

Submissions...................................................................................................................................... 20

Documents sought from the seventh respondent.................................................................. 20
Right to obtain relief: r 32.05 (a)...................................................................................... 20
Insufficient information: r 32.05(b) and documents sought will assist: r 32.05(c).... 22

Documents sought from the first to sixth respondents......................................................... 22
Right to obtain relief: r 32.05(a)....................................................................................... 22
Reasonable enquiries: r 32.05(b) first limb.................................................................... 23
Sufficient information to make decision and documents that would assist:
r 32.05(b) second limb and r 32.05(c)............................................................................... 24

Documents sought from the third respondent....................................................................... 24
Right to obtain relief: r 32.05(a)....................................................................................... 24
Reasonable enquiries and insufficient information: r 32.05(b)................................... 25
Documents in possession relating to right to relief: r 32.05(c).................................... 25

Discretion..................................................................................................................................... 25

Discussion.......................................................................................................................................... 25

Documents sought from seventh respondent......................................................................... 25
Documents sought from first to sixth respondents (the Hickory Parties).......................... 30
Category 5........................................................................................................................... 32
Category 8........................................................................................................................... 32
Categories 6 and 7............................................................................................................. 33

Documents sought from third respondent.............................................................................. 39

Conclusion and orders.................................................................................................................... 41

HER HONOUR:

Introduction

This is an application for preliminary discovery pursuant to r 32.05 of the Supreme…

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] VSC 813
Decision Date: 20 December 2018

CaseChat Overview and Summary

The case of MA v Hickory Building Systems Pty Ltd involved the applicant, who had made payments to the first to sixth respondents pursuant to an agreement made with the sole shareholder and director of the seventh respondent. The applicant claimed that the seventh respondent received the sole benefit of those payments to the exclusion of the applicant. The applicant argued that there was no contract between him and the first to sixth respondents, and that the agreement between the first to sixth respondents and the seventh respondent may be void for incompleteness or uncertainty. The applicant sought preliminary discovery to determine whether he should commence proceedings and whether the documents sought would assist him in making that decision.

The legal issues before the court were whether the applicant had sufficient information to decide whether to commence a proceeding, whether the documents sought would assist the applicant to make that decision, and whether the documents sought were in, or likely to be in, the possession of the respondents. The court was required to determine whether the applicant's application for preliminary discovery was appropriate in the circumstances of the case.

The court found that the applicant had made out a prima facie case for the grant of the orders sought. The applicant had made out a prima facie case that the documents sought are in, or likely to be in, the possession of the first to sixth respondents. The court was satisfied that the applicant had established that the documents sought were relevant to the decision of whether or not to commence proceedings. The court also found that the applicant had made out a prima facie case that the documents sought were necessary to assist him in deciding whether to commence proceedings. The court was satisfied that the applicant had established that the documents sought were necessary to assist him in making that decision. The court found that the applicant had made out a prima facie case that the orders should be granted against the first to sixth respondents. The court found that the applicant had not made out a prima facie case that the orders should be granted against the seventh respondent.

The court granted the application for preliminary discovery against the first to sixth respondents and refused the application against the seventh respondent. The court ordered the first to sixth respondents to disclose the documents sought within 14 days of the judgment. The court ordered the seventh respondent to pay the applicant's costs of the application.

Orders