Tree Logic Pty Ltd and Arborco Australia Pty Ltd v Commonwealth Bank of Australia and Bendigo and Adelaide Bank Limited
[2020] VCC 534
•4 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-01791
| Tree Logic Pty Ltd (ACN 080 021 610) and Arborco Australia Pty Ltd (ACN 606 192 545) | Applicants |
| v | |
| Commonwealth Bank of Australia (123 123 124) and Bendigo and Adelaide Bank Limited (068 049 178) | Respondents |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2020 | |
DATE OF RULING: | 4 May 2020 | |
CASE MAY BE CITED AS: | Tree Logic Pty Ltd and Arborco Australia Pty Ltd v Commonwealth Bank of Australia and Bendigo and Adelaide Bank Limited | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 534 | |
REASONS FOR RULING
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Subject: Discovery to identify defendant
Legislation Cited: Order 32.03 County Court Civil Procedure Rules 2018
Cases Cited:
Ruling:
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| Ruling on the papers |
HER HONOUR:
1 Pursuant to Order 32.03 of the County Court Civil Procedure Rules 2018 (County Court Rules) Tree Logic Pty Ltd and Arborco Australia Pty Ltd (the applicants) seek orders for discovery against the Commonwealth Bank of Australia (the Commonwealth Bank) and the Bendigo and Adelaide Bank Limited (the Bendigo Bank).
2 Order 32.03 of the County Court Rules provides that the Court may order that a corporation by an appropriate officer make discovery to the applicant of all documents which are or have been in its possession where-
(a) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called the person concerned); and
(b) It appears that some person has or is likely to have knowledge of facts, or has, or is likely to have or has had or is likely to have had in that person’s possession any document or thing, tending to assist in such ascertainment.
3 In support of its application the applicants filed affidavits made by Agnes Jean McGregor Jelley (Jelley’s affidavit), Shane Robert Ringin (Ringin’s affidavit) and William Simon Heath (Heath’s affidavit).
4 By letter dated 28 April 2020 the Commonwealth Bank confirmed that it does not intend to file any affidavits or submissions in response to the summons and will comply with the orders of the Court.
5 By letter dated 28 April 2020 the Bendigo Bank advised that it does not intend to file any affidavits or submissions in response to the summons and will comply with the orders of the Court.
6 As disclosed in Jelley’s affidavit and Ringin’s affidavit, the applicants undertook an investigation which revealed that Robyn Robinson (also known as Robyn Brown), the applicants’ recently deceased bookkeeper, had fraudulently transferred funds from the applicants’ bank accounts (fraudulent transfers).
7 The fraudulent transfers were to four bank accounts, one of which was held by the deceased bookkeeper. Despite inquiries, the applicants have not been able to identify the account holders for the other three accounts being:
(a) BSB 062-692 Account number 33273757 held at the Commonwealth Bank branch at 48 Martin Place, Sydney, NSW;
(b) BSB 063-334 Account number 10004317 being an account held at the Commonwealth Bank branch at 1410 Toorak Road, Camberwell; and
(c) BSB 633-000 Account number 140494154 being an account held at the Bendigo Bank branch at the Bendigo Centre, Bendigo.
8 I am satisfied that the applicants have made reasonable inquiries and are unable to ascertain the description of the account holder sufficiently for the purpose of commencing a proceeding in the Court against that person. I am also satisfied that it appears that each of the respondents has or is like to have or had or is likely to have had possession documents tending to assist in such ascertainment.
9 For these reasons and having regard to the matters referred to in the applicants’ affidavits, the Court orders that:
By 4pm on 18 May 2020:
(1) the Commonwealth Bank by its proper officer make discovery to the applicants of:
(a) In relation to account BSB 062-692 number 33273757:
(i) any document or record showing the identity of the account holder, including but not limited to any application to open the account;
(ii) any document or record showing persons authorised to transact on the account whether online or otherwise; and
(iii) statements for the period from 3 May 2018 to date.
(b) In relation to account BSB 063-334 number 10004317:
(i) any document or record showing the identity of the account holder, including but not limited to any application to open the account;
(ii) any document or record showing persons authorised to transact on the account whether online or otherwise; and
(iii) statements for the period from 9 February 2017 to date.
(2) the Bendigo Bank make discovery in relation to account BSB 633-000 number 140494154 of:
(i) any document or record showing the identity of the account holder, including but not limited to any application to open the account;
(ii) any document or record showing persons authorised to transact on the account whether online or otherwise; and
(iii) statements for the period from 16 December 2015 to date.
(3) Liberty to apply.
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