Moon v AA Holdings Pty Ltd - [2020] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation: Moon v AA Holdings Pty Ltd [2020] NSWSC 1192
Hearing dates: 28 August 2020
Date of orders: 04 September 2020
Decision date: 04 September 2020
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The plaintiff’s amended notice of motion filed on 14 August 2020 is dismissed.
(2) The plaintiff is to pay the defendant’s costs of the amended notice of motion.

Catchwords:
CIVIL PROCEDURE – Interlocutory orders for enquiries and provision of information – Sabre orders – Whether Registrar’s Order was a Sabre order – Whether Registrar’s Order was complied with – Further order for enquiries and provision of information not made
COSTS – Indemnity costs – Costs of proceedings to date – No basis for indemnity costs or payment of costs to date

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

Cases Cited:
Bova v Avarti [2009] NSWSC 921
Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1
In the Matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356
McGoldrick v SportsTG Pty Limited [2019] NSWSC 1154
Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31
Sabre Corp Pty Ltd V Russ Kalvin’s Hair Care Company (1993) 46 FCR 428
Sogelease Australia Limited v Griffin [2003] NSWSC 178
SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) (2006) 155 FCR 150; [2006] FCA 931

Category: Procedural and other rulings
Parties: Glenn Moon (Plaintiff)
AA Holdings Pty Ltd (Defendant)
Representation:
Counsel:
D E Baran with J M Tryon (Plaintiff)
J C Lee (Defendant)
Solicitors:
Stephen Smart & Associates (Plaintiff)
McCabe Curwood (Defendant)

File Number(s): 2018/00307818

Judgment

By an amended notice of motion filed on 14 August 2020, the plaintiff, Mr Glenn Moon, seeks orders to the effect that the defendant, AA Holdings Pty Ltd:

pay the plaintiff’s costs of the proceedings to date on an indemnity basis forthwith; and

write to three nominated companies requesting certain information relating, in substance, to who is the proper defendant in the matter, and provide the responses from those companies to the plaintiff.

In addition, a direction is sought that the defendant’s solicitor file an affidavit showing compliance with the order to write to the nominated companies and to provide the responses.

In light of the somewhat unusual nature of the orders sought, it is necessary to review what has occurred in relation to these proceedings in some detail.

Background

On 28 September 2015, the plaintiff, Mr Glenn Moon, was allegedly injured when he sat on a chair in the food court area of the service centre known as BP Wallan Outbound, located on the Hume Freeway at Wallan in Victoria. It is alleged that, as the plaintiff sat down on the chair, it gave way causing Mr Moon to fall to the ground landing on his back. As a result, he is said to have suffered significant injury.
The evidence did not disclose what steps, if any, the plaintiff’s…

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.

Keep reading for free

Create a free CaseChat account to read Moon v AA Holdings Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1192
Decision Date: 04 September 2020

CaseChat Overview and Summary

In the matter of Moon v AA Holdings Pty Ltd, the case involved the plaintiff seeking interlocutory orders for enquiries and provision of information. The plaintiff aimed to compel the defendant to provide specific documents and information necessary for the proceedings. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Moon, sought further information from the defendant, AA Holdings Pty Ltd, to assist in the preparation and conduct of the trial. The defendant had previously been ordered to provide information, but the plaintiff claimed that the order was not fully complied with, necessitating additional steps to gather the required information.

The primary legal issues before the court were whether the Registrar's order was a Sabre order and whether that order had been complied with. The court also needed to determine if a further order for enquiries and provision of information was warranted. Additionally, the court examined the plaintiff's application for indemnity costs and the costs of the proceedings to date, assessing whether there was a basis for such costs.

The court found that the Registrar's order was indeed a Sabre order, which is an order that requires the defendant to provide specific information or documents. The court determined that the defendant had complied with the order to a significant extent. However, some information was still lacking, but the court did not deem it necessary to make a further order for enquiries and provision of information. Regarding the costs, the court found no basis for granting indemnity costs or ordering payment of the costs of the proceedings to date. The plaintiff was responsible for the costs of the application.

Orders