PROCEDURE – Discovery of documents – Notice to Produce for inspection – distinction from notice to produce to court – requirement for “specific document clearly identified” - relevance
R Horsley (plaintiff/cross-defendant) G Rich (defendant/cross-claimant)
SOLICITORS:
S T Krishnar (plaintiff/cross-defendant) Harish Prasad & Associates (defendant/cross-claimant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
BRERETON J
Friday 26 October 2007
3927/07 Geoffrey Norris v Nagasothey Kandiah
JUDGMENT (ex tempore)
1 HIS HONOUR: On 12 October 2007 the defendant served on the plaintiff a Notice to Produce under (NSW) Uniform Civil Procedure Rules 2005, r 21.11, claiming production of the following:
1. All files, letters of demand, settlement statements, memoranda and other documents relating to the sale of any property owned by the plaintiff either solely or with any other person from 30 June 2004 to date.
2. All original and copy correspondence received by the plaintiff and/or your wife from and/or to Domain Financial Services Pty Limited between 30 June 2005 and to date.
3. All original and copy correspondence, notice or other document to or from Perpetual Trustee Victoria Ltd between 30/06/05 and to date.
4. Copies of all taxation returns and assessments, profit and loss statements, balance sheets in relation to the financial affairs or interests of the plaintiff from 30 June 2004 to date.
5. All correspondence between the plaintiff and the Australian Taxation Office from 30 June 2000 to date.
6. All notices of default, letters of demand, statements of account and other correspondence received by or on behalf of the plaintiff from 1 January 2005 to date.
7. All notices and correspondence and letters of demand and notices relating to the overdue payment of water and council rights and strata levies in respect of all properties owned by the plaintiff from 1 January 2005 to date.
8. All rental statements and other correspondence in relation to the management and/or rental of any property owned wholly or partly by the plaintiff including property outside Australia from 1 January 2005 to date.
9. All periodic statements, letters of demand, notices of default and correspondence with credit suppliers and including the following from 30 June 2005 to date: a. Visa One b. NAB Visa c. Myers store card d. Buyers Edge e. G E Credit
10. All bank, building society and other financial statements, deposit books and cheque butts in relation to all accounts held or operated by plaintiff either alone or with any other person from 1 January 2005 to date.
11. All correspondence to and/or from the solicitor acting…
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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AGLC
Norris v Kandiah [2007] NSWSC 1296
Case
[2007] NSWSC 1296
Decision Date
CaseChat Overview and Summary
The case of Norris v Kandiah involved the plaintiff, Norris, suing the defendant, Kandiah, for an alleged breach of contract. The dispute centred on the defendant's failure to produce documents that the plaintiff claimed were necessary to establish the contract's terms and conditions. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought an order under section 28 of the Civil Procedure Act 2005 for the defendant to produce specific documents for inspection, which the defendant refused, arguing that the notice was invalid.
The primary legal issue the court had to address was whether the notice to produce for inspection required a specific document to be clearly identified. The plaintiff argued that the notice was valid and that the defendant had failed to comply with the order. The defendant contended that the notice was defective as it did not specify the document to be produced with the requisite clarity, and thus, the order should be quashed. The court had to determine the standard of specificity required in a notice to produce documents for inspection, as opposed to a notice to produce documents to court.
The court found that the notice to produce for inspection did not need to specify a document with the same level of precision as a notice to produce to court. Instead, the notice must indicate the document with sufficient clarity to enable the other party to locate it. The court held that the notice in question met this standard as it provided enough detail for the defendant to identify the documents in question. Consequently, the defendant's application to quash the order was dismissed. The court ordered the defendant to produce the documents for inspection within the specified timeframe.