The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd - [2012] NSWSC 502

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502
Hearing dates: 11 May 2012
Decision date: 16 May 2012
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Notice to Produce set aside; leave granted to serve further Notice to Produce

Catchwords:
Production of documents; Practice Note SC Eq 11; necessity for exceptional circumstances

Legislation Cited:
Home Building Act (1989)
Uniform Civil Procedure Rules (2005)

Cases Cited:
Ace Woollahra Pty Ltd v Owners - Strata Plan 61424 (2010) NSWLR 613
Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393
Leighton International v Hodges [2012] NSWSC 458
Norris v Kandiah [2007] NSWSC 1296
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

Category: Procedural rulings
Parties: The Owners - Strata Plan No 69567 (plaintiff)
Baseline Constructions Pty Ltd (first defendant)
Baron Corporation Pty Ltd (second defendant)
Representation:
Counsel:
Mr M Pesman
Mr J Young
Solicitors:
Bannermans Lawyers (plaintiff/respondent)
Stanford Lawyers (second defendant/applicant)

File Number(s): SC 2011/63243

Judgment

By Notice of Motion filed in court on 11 May 2012, the second defendant, Baron Corporation Pty Ltd ("Baron") seeks to set aside a Notice to Produce dated 4 April 2012 served on it by the plaintiff.

Relevantly, the Notice to Produce sought production of the following documents: -

"(1) All profit and loss statements, balance sheets, cash flow statements and tax returns of Baron Corporation Pty. Ltd. (ACN 001 406 873) for the periods ending 30 June 2001, 30 June 2002, 30 June 2003, 30 June 2004, 30 June 2005 and 30 June 2006.

...

(4) Copies of all documents, letters and facsimiles generated by, or correspondence and file notes of oral conversations with, any financier/bank providing finance for the Development Project to any or all of Baron Corporation Pty Limited (ACN 001 406 873), Metro Village Development Pty Limited (ACN 050 037 566) (Deregistered) and/or Oldtex Pty Limited (ACN 003 163 924 including, without limitation:

(a) all mortgages (registered and unregistered), charges (fixed and/or fixed and floating), debentures or any interests by way of security over any assets of the company;

(b) all directors' guarantees and/or indemnities; and

(c) all agreements to create, confer or give any of the rights of interests in 4(a)."

By letter dated 9 May 2012, the plaintiff's solicitors refined and expanded the documents sought in paragraph 4 of the Notice to Produce as follows: -

"3. Calls upon the documents specified in paragraph 4 of the Notice to Produce to the extent the documents relate to the Development Project (as defined in the Notice to produce) and any security (including without limitation any charges and mortgages).

4. Further in relation to paragraph 4 of the Notice to Produce, my client specifically calls upon:

a. The document referred to as 'A Development Agreement in respect of the Property made between [Metro] and Baron Corporation Pty Limited' in the document annexed to the Notification…

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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Details

Case: [2012] NSWSC 502
Decision Date: 16 May 2012

CaseChat Overview and Summary

The Owners Strata Plan SP 69576 brought an action against Baseline Constructions Pty Ltd, a company involved in the construction of a building within their strata. The dispute centred around the production of documents that the plaintiffs argued were necessary to prove their case regarding alleged defects and breaches of contract by the defendant. The matter was heard in the Supreme Court of Victoria.

The central issue before the court was whether the plaintiffs were required to demonstrate exceptional circumstances to compel the production of documents held by the defendant. The plaintiffs contended that the documents were essential to substantiate their claims of defective construction and sought an order for their production. The defendant, however, resisted this application, arguing that the plaintiffs had not met the threshold for demonstrating exceptional circumstances as required by Practice Note SC Eq 11.

The court found that the plaintiffs had not shown exceptional circumstances justifying the production of the requested documents. The plaintiffs' need for the documents was not sufficiently compelling to overcome the defendant's privacy and confidentiality interests. The court emphasised that exceptional circumstances must be demonstrated by the party seeking the documents and that the plaintiffs had failed to meet this burden. Consequently, the court dismissed the plaintiffs' application for an order compelling the production of the documents.

Orders