JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SUNDANCE RESOURCES LTD -v- AUSTSINO RESOURCES GROUP LTD [2022] WASC 108
CORAM: TOTTLE J
HEARD: 15 MARCH 2022
DELIVERED : 31 MARCH 2022
FILE NO/S: CIV 2043 of 2021
BETWEEN: SUNDANCE RESOURCES LTD
Plaintiff
AND
AUSTSINO RESOURCES GROUP LTD
First Defendant
CHUN MING DING
Second Defendant
Catchwords:
Practice and procedure - Application for pre-action discovery - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 127
Property Law Act 1969 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 26A r 4
Result:
Plaintiffs' application for pre-action discovery allowed
Category: B
Representation:
Counsel:
| Plaintiff | : | J Garas SC |
| First Defendant | : | G M Slattery |
| Second Defendant | : | G M Slattery |
Solicitors:
| Plaintiff | : | Clifford Chance |
| First Defendant | : | Squire Patton Boggs |
| Second Defendant | : | Squire Patton Boggs |
Case(s) referred to in decision(s):
BWS v ARV [No 2] [2021] WASCA 62
Jones v Great Western Railway Co (1931) 144 LT 194
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S)
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Pollock v Piggott [2017] WASCA 220
Roe v The State of Western Australia [2013] WASC 130
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
TOTTLE J:
Introduction
This is an application for pre-action discovery.[1] The plaintiff (Sundance) considers it may have causes of action against the first defendant (AustSino) and one of its directors, the second defendant (Mr Ding) arising out of their involvement in a substantial resources project developed by Sundance in Africa. Sundance maintains that it has not been able to obtain sufficient information to make a decision as to whether to commence proceedings. On that basis Sundance seeks orders that the defendants discover the documents to which I refer later in these reasons.
[1] The application was commenced by an originating summons issued on 7 October 2021.
The defendants oppose the application on the ground that Sundance has not discharged the burden of showing that it may have the causes of action it has identified for the purposes of the application. Alternatively, the defendants argue that the categories of documents sought by Sundance are too broad.
For the reasons developed below orders for pre-action discovery should be made.
Evidence of the parties
Sundance has adduced documentary evidence extending to over 6,000 pages. The documents relied on by Sundance are annexed to three affidavits sworn by Mr Giulio Casello.[2] Mr Casello was the Chief Executive Officer and Managing Director of Sundance between November 2010 and July 2021 and is currently a non-executive director of Sundance. Mr Casello was closely involved in the project and in Sundance's dealings with the defendants.
[2] Affidavit of Giulio Casello, sworn on 6 October 2021; affidavit of Giulio Casello, sworn on 7 January 2022; affidavit of Giulio Casello, sworn on 10 March 2022.
The…
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- Case
- [2022] WASC 108
- Decision Date
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