Mehrudeen v Deen
[2013] VCC 1832
•12 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-13-02360
| HANEEF MEHRUDEEN | Plaintiff |
| v. | |
| AMEERA DEEN | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2013 | |
DATE OF JUDGMENT: | 12 December 2013 | |
CASE MAY BE CITED AS: | Mehrudeen v. Deen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1832 | |
REASONS FOR JUDGMENT
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Catchwords: Practice and procedure – Discovery – Plaintiff proposing to add further parties and amend his claim – Further discovery by the plaintiff appropriate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.C. Turner | Geethanjali Ranamukhaarachchi |
| For the Defendant | Mr B. Murphy | Carrick Gill Smyth |
HIS HONOUR:
1This is a family dispute. Haneef Mehrudeen and Haneef Badrudeen were brothers. Badrudeen died on 20 January 2012. He was an accountant who handled the financial affairs of his brother, Mehrudeen. Mehrudeen says that between June 2007 and August 2009 he lent his brother over $2 million for investments which Badrudeen was pursuing in Australia and overseas, including in their native Sri Lanka.
2Mehrudeen commenced the proceeding by writ on 10 May 2013 against Ameera Deen, his brother’s daughter who is the administrator of the deceased’s estate. There had been earlier proceedings in the Supreme Court to determine who should administer the estate.
3There are two applications currently before the Court:
a.the defendant’s (administrator’s) application that the proceeding be dismissed as a result of the plaintiff’s failure to comply with his discovery obligations;
b.the plaintiff’s application to add a second plaintiff, GMTM Australia Pty Ltd (“GMTM”), and a second defendant, Serendib Pty Ltd (“Serendib”), and to file an amended statement of claim.
4There is a third application, which has currently been deferred; the plaintiff’s solicitor is seeking leave to file a notice of ceasing to act. However, she has presently indicated that she will continue to act, at least until the two applications before the Court are determined.
5There are a number of matters which are relevant to the present application:
a.the plaintiff is in a poor state of health. In an affidavit sworn by the plaintiff’s family medical practitioner, Tilak Arunachalam on 25 July 2013, it was said that the plaintiff suffered from “bi-polar disease, diabetes, blood pressure, heart disease, Parkinsons, incontinence, Alzheimers…That his prognosis is uncertain and his life expectancy is uncertain”. However, he recently swore an affidavit of documents on 25 September 2013. His wife holds a power of attorney and appears to be the person primarily instructing his solicitor;
b.in July 2013, the plaintiff made application to have his evidence heard in advance of the trial. Judge Lacava instead ordered that the trial be fixed for hearing on 3 December 2013. The parties recently agreed that this date be vacated;
c.after the death of the deceased, there was a dispute as to who should assume control of his affairs. This was resolved in favour of the defendant. However, there is a dispute as to what happened to the records of the deceased’s accounting practice after his death. The plaintiff says that the records included critical documents relevant to the loan of monies to his brother;
d.recently, another brother, Haneef Mohinudden, produced what is said to be a missing copy of the hard drive of the deceased’s business computer. The hard drive had not been examined when the applications were heard. The person who maintained the computer system, including regularly backing-up the hard drive, swore an affidavit on behalf of the defendant detailing events following the death of the deceased, when apparently the computer system was no longer maintained and backed-up;
e.there have been difficulties articulating and particularising the plaintiff’s claim, both in the original statement of claim and, recently, in a proposed further amended statement of claim. This may reflect problems obtaining instructions from the plaintiff or the fact that the proceeding has not been sufficiently resourced;
f.the present defence filed by the defendant, apart from disputing the genuineness of the Transaction Record relied upon by the plaintiff, essentially consisted of denials. The defendant is limited in the conduct of her defence of the claim because the deceased cannot give his version of events.
g.the sworn value of the deceased’s estate suggests that the available assets in the estate are limited. There is no cash. A property in Australia has a net equity of about $60,000 and there is real property in Sri Lanka worth about $200,000;
h.apart from the present proceeding, and the resolved Supreme Court proceeding to determine who should administer the deceased’s estate, there are three other possible proceedings foreshadowed in the affidavit material:
i.a claim by a third brother, Haneef Mohinudeen (or Mohinudden), for repayment of a loan of $26,000 he says he made to the deceased in June 2009. This claim was originally included in the present proceeding but was discontinued;
ii.a claim by the defendant to be entitled as a “tenant in common in equity” as to a one third share with Haneef Mohinudeen and a fourth brother, Mohammed Salahudeen in a property at Noble Park;
iii.a claim by the defendant to recover personal assets of the deceased which “disappeared” following his death, including “paintings, jewellery, furniture, clothes, antiques and other items”.
6The defendant seeks to have the present proceeding brought to a conclusion with a costs order in her favour. It was submitted that, if the plaintiff then wishes to pursue an amended claim with additional parties he can do so, but only if he first pays the defendant’s costs of this proceeding.
7To determine the present applications, it is necessary in my view to examine:
a.the plaintiff’s claim, both as it was originally pleaded, and how it is now proposed to be pleaded, and how the claim might be established;
b.the documents the plaintiff should be required to discover in order for the defendant to be able to properly meet the claims made or proposed.
Articulation of the plaintiff’s claim – originally and as proposed
8The plaintiff alleged in the statement of claim attached to the writ that between 30 June 2008 and 12 August 2009, the plaintiff lent the deceased sums totalling $877,380.30 (presumably this should be $877,390.30, the figure referred to in the “Transaction Record”), of which $86,952.50 was repaid between 10 June 2009 and 18 April 2011, leaving a balance owing of $790,437.80.
9The agreement was said to have been reached in conversations between the deceased and the plaintiff in approximately June 2007, during which the deceased asked for money “for an overseas investment”.
10In an affidavit sworn 14 June 2012 in the Supreme Court proceeding, the plaintiff gave details of the loan agreement and the advances. The plaintiff said the deceased knew the plaintiff had money in his accounts, “as he was managing my accounting”. Between June 2007 and August 2009, the deceased asked the plaintiff, “to loan him money for an overseas investment. He asked for large sums of money to be loaned from time to time. He said that he needed the money for the overseas investment. He did not discuss the investment with me but I agreed to loan him the money”.
11In the affidavit, the plaintiff said that between 2007 and 2009, he loaned his brother sums he said totalled $2,007,988.93 (in fact they total $2,007,580.37), as follows:
a.$540,789 for DIFC Dubai payments;
b.$613,000 from the plaintiff’s Bank of Ceylon NRFC account;
c.$309,525.79 from the plaintiff’s Commonwealth Bank of Australia account;
d.$544,265.58 from fixed deposit accounts.
12The plaintiff said that he “loaned the further sum of $121,500 to my deceased brother at his request”, and the deceased “also drew from my superannuation that he was holding…I do not have any idea how much he drew from my superannuation but there is nothing remaining in the fund at present”. The plaintiff said that, of the advances of “approximately $2,007,988.93” he made to the deceased, the “total paid back was $195,050”.
13The affidavit purports to exhibit documents which substantiate these claims. The exhibits were not, however, part of the material before me, although at one stage during the hearing plaintiff’s counsel handed up the complete affidavit and exhibits.
14In the draft further amended statement of claim, exhibited to the plaintiff’s solicitor’s affidavit sworn 20 November 2013, the figure of “approximately $2,007,998.93” is said to be the total amount lent by the plaintiff to the deceased. An alternative allegation is included in the draft pleading, that “the moneys were lent to the deceased and/or Serendib by GMTM by or on behalf of Mehrudeen and/or GMTM”.
15Mehrudeen is the plaintiff; GMTM is GMTM Australia Pty Ltd, a company of which the plaintiff is a director and the principal shareholder; Serendib is Serendib Pty Ltd, a company of which the deceased, until his death, was a director and the principal shareholder.
16The draft pleading asserts that the total repayments of Serendib and/or the deceased were $231,854.41. Although the pleading states that “approximately $2,007,998.93” was lent, the sum of $790,437.80 is claimed against both the deceased and Serrendib on the basis that, “The transaction reports of the deceased acknowledge a liability to Mehrudeen and/or GMTM of $790,437.80”.
17The defendant filed an amended defence on 2 September 2013. She denied that the plaintiff lent money to the deceased and said further that, “the Transaction Record…was not a document of the deceased and does not record any debt owed by the Deceased to the Plaintiff, nor any repayment of any amount owed by the Deceased to the Plaintiff”. In paragraph 110 of her affidavit in support of the application for further discovery, the defendant raised other matters which are presently not pleaded by her in the amended defence, eg. that “it is possible that the payments were joint investments made by the Plaintiff, the Deceased and for their related entities and not loans at all [or] family dealings made between brothers that were not intended to be or involve contractual undertakings”.
The Transaction Report
18On 12 February 2013, the plaintiff’s former solicitors sent a letter of demand, claiming the sum of $790,437.80 from the deceased’s estate. The letter stated that:
“The debt is recorded in the accounting books of the late Mr Badrudeen copies of which are attached for your easy reference. From the records maintained by the deceased it is clear that the deceased had commenced return of the debt to Mr Mehrudeen in or about 2010. The majority of the repayments appear to have been made by Serendib Pty Ltd indicative of the fact that the monies were borrowed by Serendib Pty Ltd. The payments have been made to GMTM the family company of which Mr Mehrudeen is the proprietor indicative of the fact that the monies was loaned by Mr Mehrudeen and/or his company GMTM.
Neither the deceased nor our client appears to have maintained proper records of the debt and should the need arise evidence will be adduced from witnesses. However, from available records it is clear that Mr Badrudeen had a debt due to our client as at the date of his death amounting to $790,437.70”.
19The attached document was two pages of a Transaction Report headed with the name of the plaintiff and the date, “14/02/12”. The first page covers the period from “01/07/10 through 14/02/12”. It starts with a balance at 30 June 2010 of $877,390.30 and records a number of payments from 9 July 2010 to 18 April 2011 totalling $86,952.50 leaving a balance at 14 February 2012 of $790,437.80.
20In the report, the “description” of most of the payments, presumably the payee, is “GMTM”; the “category” column mostly records, “Serendib Pty Ltd”, presumably as the source of the payments.
21The second page of the report starts with a nil balance at 31 December 2007. The report then lists what are presumably advances between 30 June 2008 and 12 August 2009 totalling $851,306.62. There are two payments totalling $5,050 leaving a balance at 14 February 2012 of $846,256.62. The entries in both the “description” and “category” columns vary. The largest items are two advances on 9 October 2008 of $390,798 (US$150,000) and $150,000 (US$124,838.41). The “description” in each case is “Saleem” with the US dollar amount, and the “category” in each case is noted as “DIFG Dubai”.
22The advances listed are:
Date Description Category Amount 30/06/08 Opening balance Mehrudeen Haneef $9,500.00 30/06/08 ST Investments Mehrudeen Haneef $56,482.83 25/09/08 Mehrudeen Haneef CBA Trust Ac $50,000.00 09/10/08 Saleem US$150,000 DIFC Dubai $390,798.00 09/10/08 Saleem US$124,838.41 DIFC Dubai $150,000.00 10/10/08 GMTM Serendib Pty Ltd $37,500.00 17/12/08 Mehrudeen Haneef CBA Trust Ac $30,000.00 29/12/08 Mehrudeen Haneef CBA Trust Ac $50,000.00 13/01/09 Mehrudeen Haneef Serendib Pty Ltd $25,000.00 09/06/09 Serendib Serendib Pty Ltd $5,000.00 12/08/09 trf Netherlands E26,800 DIFC Dubai $47,025.79 23In the affidavit of documents sworn by the plaintiff on 28 August 2013, the Transaction Report is listed as two separate documents for each of the document’s two pages. The first page (listing advances) is numbered as document 2 in the affidavit and is followed by documents a - o which are the documents relevant to the entries on the first page of the Transaction Report. The second page (listing payments) is numbered 3 in the affidavit and is followed by documents a – t which are the documents relevant to the entries on the second page of the Transaction Report.
24The defendant, in an affidavit of documents sworn 6 September 2013, has listed a number of documents described as “Merudeen Haneef Transaction Report” and variously dated. The defendant alleges in the affidavit in support of her application that “the particular ‘Transaction Record’ referred to by the plaintiff was not in fact a record made by the deceased but was published after his death”.
Documents evidencing the amount owing
25Other documents produced in the Supreme Court proceeding, relating to the amount allegedly owing by the deceased to the plaintiff included:
a.a “balance sheet” as at 30 June 2010 of “Haneef 2010 – all accounts” (i.e., of the deceased) which included the following liabilities:
Haneef Badrudeen $808,693.35
Mehrudeen Haneef $888,493.01
The “Transaction Report” showed the amount owing as at 1 July 2010 to Mehrudeen Haneef as $877,390.30. The meaning of the entry in the balance sheet in the deceased’s name is unclear;
b.a balance sheet as at 30 June 2011 of “2011 Haneef – all accounts” included the following liabilities:
Haneef Badrudeen $808,123.75
Mehrudeen Haneef $790,437.80
The “Transaction Report” showed the amount owing as at 14 February 2012 (i.e., following the last payment recorded on 18 April 2011) of $790,437.80;
c.an undated “list of assets and liabilities relating to Haneef Badrudeen” included a liability to Haneef Mehrudeen of $747,387.
Documents evidencing the advances in the Transaction Report
26It is appropriate to examine each of the alleged advances listed in the “Transaction Report”:
a.30/06/08 Opening balance Mehrudeen Haneef $9,500
No documents were identified evidencing this entry;
b.30/06/08 ST Investments Mehrudeen Haneef $56,482.83
No documents were identified evidencing this entry;
c.25/09/08 Mehrudeen Haneef CBA Trust Ac $50,000
i.Commonwealth Bank statement no. 495 for the account of GMTM Australia Pty Ltd shows that cheque no. 002415 for $50,000 was “cashed” on 25 September 2008;
ii.the butt for cheque no.002415 is made out to “HB” (presumably Haneef Badrudeen) for $50,000 and is dated 25 September 2008;
d.09/10/08 Saleem US$150,000 DIFC Dubai $390,798
A Bank of Ceylon transfer of US$150,000 on 9 October 2008 records the “ordering customer” as Haneef Mehrudeen and the “beneficiary customer” as Zomas Investments Ltd. The defendant has noted that applying the exchange rate operating at the time of the transfer, the amount of US$150,000 was equivalent to AUD$213,827.51 and not the figure of $390,798 included in the Transaction Report;
e.09/10/08 Saleem US$124,838.41 DIFC Dubai $150,000
A Bank of Ceylon transfer of US$124,838.41 on 9 October 2008 records the “ordering customer” as Haneef Mehrudeen and the “beneficiary customer” as Zomas Investments Ltd;
f.10/10/08 GMTM Serendib Pty Ltd $37,500
i.Commonwealth Bank statement no. 497 for the account of GMTM Australia Pty Ltd shows that cheque no. 002423 for $37,500 was “cashed” on 10 October 2008;
ii.the butt for cheque no.002423 is made out to “Serendib” for $37,500 and is dated 10 October 2008;
g.17/12/08 Mehrudeen Haneef CBA Trust Ac $30,000
i.Commonwealth Bank statement no. 507 for the account of GMTM Australia Pty Ltd shows that cheque no. 002455 for $30,000 was “cashed” on 17 December 2008;
ii.the butt for cheque no.002455 is made out to “H. Badrudeen” for $30,000 and is dated 17 December 2008;
h.29/12/08 Mehrudeen Haneef CBA Trust Ac $50,000
i.Commonwealth Bank statement no. 508 for the account of GMTM Australia Pty Ltd shows that cheque no. 002457 for $50,000 was “cashed” on 29 December 2008;
ii.the butt for cheque no.002457 is made out to “HB” for $50,000 and is dated 29 December 2008;
i.13/01/09 Mehrudeen Haneef Serendib Pty Ltd $25,000
i.Commonwealth Bank statement no. 511 for the account of GMTM Australia Pty Ltd shows that cheque no. 002466 for $25,000 was “cashed” on 13 January 2009;
ii.the butt for cheque no. 002466 is made out to “HB” for $25,000 and is dated 13 January 2008 (presumably meant to be “2009”);
j.09/06/09 Serendib Serendib Pty Ltd $5,000
i.Commonwealth Bank statement no. 532 for the account of GMTM Australia Pty Ltd shows a “withdrawal” of $5,000 on 9 June 2009 and records “NETBANK TFR Serendib” for $5,000 on 10 June 2009;
ii.Commonwealth Bank transaction listing for account no. 3154 1015 4113 (a Serendib account) shows a “cash deposit” of $5,000 on 9 June 2009 with a handwritten notation which appears to be “Salim Doncaster”;
k.12/08/09 trf Netherlands E26,800 DIFC Dubai $47,025.79
Commonwealth Bank statement no. 541 for the account of GMTM Australia Pty Ltd shows that cheque no. 002601 for $47,053.79 (not $47,025.79) was “cashed” on 12 August 2009.
27Similarly, there appear to be documents evidencing the payments set out on the second page of the Transaction Report for the period 9 July 2010 to 18 April 2011:
a.09/07/10 Ambi Cash Account $500
No documents were identified evidencing this entry;
b.26/04/10 GMTM CBA Trust $2,500;
Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 565 (page 2) records “NETBANK TFR Badrudeen” of $2,500 on 26 July 2010;
c.04/08/10 GMTM Serendib Pty Ltd $2,500;
i.Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 566 (page 2) records “NETBANK TFR Serendib Pty Ltd” of $2,500 on 4 August 2010;
ii.Commonwealth Bank “transfer money receipt” recording a transfer of $2,500 on 4 August 2010 from account no. 3154 1015 4113 (a Serendib account) to GMTM Australia Pty Ltd with the description “Serendib”;
d.24/08/10 GMTM ATO Serendib Pty Ltd $3,143;
Commonwealth Bank “pay bill – receipt” recording payment of $3,143 on 24 August 2010 to the Australian Taxation Office for the “GMTM Super Fund”;
e.01/09/10 GMTM Serendib Pty Ltd $10,000;
i.Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 567 (page 2) records “NETBANK TFR Serendib” of $10,000 on 1 September 2010;
ii.Commonwealth Bank “Transfer money - receipt” recording a transfer of $10,000 on 1 September 2010 from account no. 3154 1015 4113 (a Serendib account) to GMTM Australia Pty Ltd with the description “Serendib”;
f.27/09/10 GMTM Serendib Pty Ltd $10,000;
i.Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 567 (page 2) records “NETBANK TFR Haneef Badrudeen” of $10,000 on 27 September 2010;
ii.Commonwealth Bank “Transfer money - receipt” recording a transfer of $10,000 on 27 September 2010 from account no. 3154 1015 4113 (a Serendib account) to GMTM Australia Pty Ltd with the description “Haneef Badrudeen”;
g.12/10/10 ASIC Sifrah CBA Trust $490
No documents were identified evidencing this entry;
h.21/10/10 GMTM Serendib Pty Ltd $22,000;
i.Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 568 (page 2) records “NETBANK TFR H Badrudeen” of $22,000 on 27 October 2010, not 21 October 2010;
ii.Commonwealth Bank “Transfer money - receipt” recording a transfer of $22,000 on 27 October 2010 (not 21 October 2010) from account no. 3154 1015 4113 (a Serendib account) to GMTM Australia Pty Ltd with the description “H Badrudeen”;
i.22/11/10 GMTM Serendib Pty Ltd $10,000
i.Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 569 (page 2) records “NETBANK TFR H Badrudeen” of $10,000 on 22 November 2010;
ii.Commonwealth Bank “Transfer money - receipt” recording a transfer of $10,000 on 22 November 2010 from account no. 3154 1015 4113 (a Serendib account) to GMTM Australia Pty Ltd with the description “H Badrudeen”;
j.15/12/10 GMTM Lawyer Serendib Pty Ltd $819.50
No documents were identified evidencing this entry;
k.31/12/10 GMTM Serendib Pty Ltd $10,000;
Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 570 (page 2) records “NETBANK TFR Serendib” of $10,000 on 31 December 2010;
l.18/02/10 GMTM Serendib Pty Ltd $5,000;
Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 572 (page 1) records “NETBANK TFR HB” of $5,000 on 18 February 2011;
m.18/03/10 GMTM Serendib Pty Ltd $5,000;
Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 572 (page 2) records “NETBANK TFR H Badrudeen” of $5,000 on 18 March 2011;
n.18/04/10 GMTM Serendib Pty Ltd $5,000;
Commonwealth Bank statement in the name GMTM Australia Pty Ltd no. 574 (page 1) records “NETBANK TFR H Badrudeen” of $5,000 on 18 April 2011.
28The analysis appears to show that there is a documentary basis for the plaintiff’s claim and that GMTM and Serendib may be relevant parties to the claim.
Further discovery dispute
29The standard discovery orders were made in this matter on 1 August 2013. The defendant says that there are extensive further categories of documents the plaintiff is likely to have and has failed to discover.
30The parties have corresponded about the issue, without seeming to reach any sort of resolution. It is necessary, therefore, for the Court to adjudicate the dispute.
31There are a number of matters which must be considered:
a.the plaintiff wishes to recast the present claim to include other parties;
b.the defendant has presently raised limited defences to the claim;
c.the deceased’s estate has limited assets;
d.the deceased cannot give evidence at the trial;
e.the plaintiff has serious health issues. His evidence of the conversations which gave rise to the alleged advances is likely to be important;
f.the plaintiff’s application to give evidence in advance of trial was resolved by an order for a speedy hearing;
g.the trial date has been vacated;
h.the plaintiff’s solicitor desires to withdraw from the proceeding;
i.the claims by the defendant as to the further categories the plaintiff must discover are wide ranging;
j.the solicitors, in their communications, have been unable to resolve the discovery dispute or to significantly narrow the issues;
k.there are disputes as to which party had control of the deceased’s papers and the reasons documents are not presently available to both the plaintiff and the defendant;
l.the documents which formed part of the deceased’s papers are particularly relevant in circumstances where the defendant acted as the plaintiff’s accountant and, according to the plaintiff, maintained the records of both their financial affairs;
m.it is likely that the hard drive back up disc will provide the parties with further relevant documents and point to the likelihood of others existing;
n.it was suggested in the Supreme Court proceeding that the plaintiff may have been complicit in acts of “incompetence” and “dishonesty” which delayed or prevented the defendant, as administrator of the deceased’s estate, obtaining copies of relevant documents;
o.there are “independent” documents which appear to establish the entries in the “Transaction Report”, and therefore that there is some basis for the plaintiff’s claim;
p.the parties have not yet mediated their dispute;
q.the present proceeding is only one of a number of disputes between the parties. There may be a possibility of documents being used for a collateral purpose.
32In my view, these circumstances require that the case be managed by the Court as follows:
a.the plaintiff’s claim must be fully and properly articulated and further pleadings filed to define the parties to the proceeding and the areas of dispute;
b.a trial date must be refixed at the earliest convenient date;
c.further interlocutory steps in the proceeding, including discovery, must be controlled in order that the substantive issues in dispute are litigated without the incurral of unnecessary costs;
d.the parties must mediate the dispute as soon as the pleadings are complete.
Specific categories of documents sought
331. Plaintiff’s taxation records: the defendant seeks discovery of the plaintiff’s tax returns and income tax assessments for the financial years 2006-07 through to 2010-11. The defendant suggests that, as large “payments” (advances) are claimed by the plaintiff to have been made to the deceased, “the plaintiff would have complied with his taxation law obligations” and included reference to the “payments” in his returns.
34The plaintiff’s solicitor has “applied” to the Australian Taxation Office for “copies of the taxation returns prepared by the deceased and lodged by him on behalf of the plaintiff for the period concerned and will discover them once they are received”. In view of this offer by the plaintiff, I will make no comment about the appropriateness of the defendant’s request for further discovery.
352. Plaintiff’s records regarding gross income: The defendant seeks documents relating to income earned by the plaintiff as wages, from shares or interest or other loans, and other documents which refer to his income or which were supplied to his accountants “during the relevant period”. The basis for this further discovery request was said to be the same as for the plaintiff’s taxation records.
36In my view, there is not an adequate basis for further discovery. On a “train of enquiry test”, the documents would, at best, have marginal relevance to the matters in dispute.
373. Taxation records of GMTM Australia Pty Ltd: The plaintiff seeks tax returns and assessments for the years 2006-07 to 2010-11. It appears that payments made to the deceased, alleged to be advances, came from GMTM’s bank account and payments made by the deceased were made to GMTM’s bank account or to third parties on behalf of the company.
38Financial accounts of the company are likely to be included in the tax returns. These may have described or categorised in a particular way the payments made or received by the company. The plaintiff should make discovery of these documents which he, as a director, is likely to have had in his possession at some time.
394. GMTM’s profit and loss statements and balance sheets: The defendant seeks the company’s “profit and loss statement and balance sheet” for the years 2006-07 to 2010-11.
40The profit and loss statement and balance sheet would form part of the financial accounts of the company and should be discovered.
415. Business records of GMTM: The defendant seeks records of payments by the company to the plaintiff, the deceased and Serendib, and loan arrangements between the company and the deceased and/or the plaintiff.
42Documents recording “loan arrangements” or “payments” by or to the company relating to the deceased or Serendib would be directly relevant to the matters in issue between the parties and should be discoverable.
436. Correspondence between the deceased and the plaintiff relating to loans or payments between the relevant parties: The defendant seeks discovery of correspondence “other than any document already supplied to the defendant’s solicitors or discovered by the defendant”. The defendant notes that she has “found and discovered emails between the plaintiff and the deceased during the relevant period”.
44No further basis is advanced for the defendant’s belief that proper discovery has not been made. The documents would appear to be directly relevant to the matters in dispute. Even without amendment of the statement of claim or joinder of GMTM or Serendib, the evidence of payments having been made by and to GMTM and Serendib would make “payments or loans” between any of the named parties relevant. The plaintiff has an ongoing obligation to make discovery of documents in this category.
457. Correspondence between the plaintiff and Serendib: There are likely to be documents in this category which were at one time in the plaintiff’s possession. The plaintiff has an ongoing obligation to make discovery of documents in this category.
468. Correspondence between GMTM and Serendib: Similar comments as for category 7.
479. Banking records of the plaintiff during the relevant period: The defendant only seeks discovery of documents not “already supplied by the defendant’s solicitors or discovered by the defendant”. The defendant suggests that the plaintiff may have other bank accounts than those discovered. If these bank accounts relate to the matters in issue between the parties, discovery may be appropriate, for example, if the Bank of Ceylon account relates to the transactions in dispute. Otherwise, the plaintiff must have regard to his ongoing discovery obligations.
4810. Banking records of GMTM during the relevant period: Similar comments apply as for category 9.
4911. Affidavit of the plaintiff sworn 14 June 2012 in the Supreme Court proceeding: If the defendant does not have copies of the exhibits to the affidavit, the plaintiff should provide copies to the defendant, at her cost.
5012. Medical records of the plaintiff: If it is likely that the plaintiff will have difficulty giving evidence, or there may be doubt as to his capacity to do so, it would be appropriate for the plaintiff to make relevant documents available to the defendant well in advance of the plaintiff giving evidence at the trial.
5113. Plaintiff’s pension documents: The plaintiff apparently is in receipt of disability benefits and may have, at some stage, been requested to make a declaration of his assets. Notwithstanding, I consider that discovery should not be required of such documents having regard to the dispute between the parties as presently defined by the pleadings.
52I do not consider the defendant has established that the plaintiff has wilfully defaulted in his discovery obligations. However, it is likely that the plaintiff has further documents which it should discover, either because the documents are currently in his possession or control or at some stage have been. The further categories of documents sought by the defendant generally provide a useful guide to the documents which the plaintiff and the defendant should discover.
Orders
53Accordingly, the orders the Court proposes to make are as follows:
1.The proceeding is refixed for trial on 6 May 2014 as a cause before a judge sitting alone (estimate 3-4 sitting days). No further setting down for trial fee is to be paid.
2.By 4pm on 23 January 2014, the plaintiff must provide to the defendant a proposed further amended statement of claim. The defendant must by 30 January 2014, inform the plaintiff in writing whether she opposes the amendment of the writ to add further parties and the amendment of the statement of claim in the manner proposed and, if she does oppose, the basis for so opposing. If there is no opposition, appropriate orders can be obtained from the Commercial List Duty Judge “on the papers”. If there is opposition, the plaintiff will need to make an application to the Commercial List Duty Judge for appropriate orders, pursuant to the liberty to apply hereby reserved.
3.By 4pm on 23 January 2014, the plaintiff must provide discovery of the following categories of documents:
a.plaintiff’s taxation returns for the years 2006-07 to 2010-11 (“the relevant period”);
b.taxation returns of GMTM Australia Pty Ltd (“GMTM”) for the relevant period;
c.the profit and loss statements and balance sheets of GMTM for the relevant period;
d.documents recording “loan arrangements” or “payments” by GMTM to the deceased or Serendib Pty Ltd (“Serendib”);
e.correspondence between the deceased and the plaintiff relating to loans or payments between himself and/or GMTM and the deceased and/or Serendib;
f.correspondence between the plaintiff and/or GMTM and Serendib relating to loans or payments between himself and/or GMTM and the deceased and/or Serendib.
4.The defendant’s costs of the defendant’s application and the plaintiff’s application, including the hearing on 21 November 2013 and the hearing today, shall be costs in the cause if the proceeding proceeds to trial. Otherwise the defendant’s costs are reserved.
5.Otherwise the defendant’s application and the plaintiff’s application are dismissed.
6.Reserve liberty to apply.
54I will hear further submissions from the parties in relation to the form of the proposed orders and the question of costs.
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Certificate
I certify that these 19 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 12 December 2013.
Dated: 12 December 2013
Catherine Kusiak
Associate to His Honour Judge Anderson
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