Strut Master No. 2 Pty Limited v ZircoDATA Services Pty Ltd

[2020] NSWSC 716

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Strut Master No. 2 Pty Limited v ZircoDATA Services Pty Ltd [2020] NSWSC 716

Hearing dates:

9 June 2020

Decision date:

10 June 2020

Jurisdiction:

Equity - Commercial List

Before:

Hammerschlag J

Decision:

Judgment for the defendants against the first plaintiff for $14,209.24.

Upon payment of the judgment amount to the defendants or into Court, the defendants are to deliver up, by making them available for collection, to the first plaintiff all documents in their possession deposited with them by the plaintiffs.

If the plaintiffs have paid the monies into Court, they are to be released to the defendants once all documents have been delivered up.

The summons is otherwise dismissed and the cross-claim is otherwise dismissed, with no orders as to costs to the intent that each party shall pay his or its own

Catchwords:

CONTRACTS – Contract for the storage of records – Claim for delivery up – Cross claim for charges owing and damages – Procedure – Stopwatch Hearing where agreed position is ultimately reached – No issue of principle

Category:

Principal judgment

Parties:

Strut Master No.2 Pty Limited - First Plaintiff
Farshad Amirbeaggi - Second Plaintiff
ZircoDATA Services Pty Ltd - First Defendant
ZircoDATA Pty Ltd - Second Defendant

Representation:

Counsel:
A. Fernon - Plaintiffs/Cross Defendants
C. Tam - Defendants/Cross Claimants

  Solicitors:
Yates Beaggi Lawyers - Plaintiffs/Cross Defendants
Gadens - Defendants/Cross Claimants

File Number(s):

2020/134195

JUDGMENT

INTRODUCTION

1. HIS HONOUR:   This dispute, but for the fact that it included a claim by the plaintiffs for delivery to the first plaintiff (Strut Master) of its documents, should have been in the Local Court.

2. The hearing was brought on at very short notice with truncated procedural steps, and was assisted by the co-operation of counsel. It was conducted as a Stopwatch Hearing for which paragraphs 50 to 53 of Practice Note SC Eq 3 make provision. The hearing was conducted remotely, with an electronic Court Book. There was cross-examination of witnesses on both sides.

3. The defendants (collectively ZircoDATA) operate a document storage facility in Sydney where Strut Master has, for some years, kept its archived documents under the provisions of a written Document Storage Facility Agreement. Strut Master is the corporate practice vehicle of the second plaintiff, Mr Farshad Amirbeaggi, a solicitor.

4. Strut Master brought proceedings for orders for delivery up of its documents held by ZircoDATA. ZircoDATA cross-claimed for unpaid invoices and damages and resisted delivery up on the basis that it had a lien.

5. Strut Master alleged that historically it had been over-charged, and that it appeared that discounts to which it was entitled had not been given.

6. Leaving aside the question of costs, after a debate about what the likely outcome of the case might be, an agreed position was reached as to the orders the Court should make (apart from costs). The parties did not require reasons.

7. The orders of the Court are that:

1. Judgment for the defendants against the first plaintiff for $14,209.24.

2. Upon payment of the judgment amount to the defendants or into Court, the defendants are to deliver up, by making them available for collection, to the first plaintiff all documents in their possession deposited with them by the plaintiffs.

3. If the plaintiffs have paid the monies into Court, they are to be released to the defendants once all documents have been delivered up.

4. The summons is otherwise dismissed and the cross-claim is otherwise dismissed, with no orders as to costs to the intent that each party shall pay his or its own.

8. The Court notes and accepts the defendants’ undertaking, given that there may be up to three weeks delay in making the documents available for delivery, that they will upon any request being made by the third plaintiff for delivery of specific boxes, use their best endeavours to deliver them at the earliest time

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Amendments

11 June 2020 - Decision corrected

Decision last updated: 11 June 2020