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Wadren Pty Ltd v Probuild Constructions (Aust) Pty Ltd

Wadren Pty Ltd v Probuild Constructions (Aust) Pty Ltd

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Case Copied 29 June 2023 77 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2022 03803

BETWEEN:

WADREN PTY LTD (ACN 005 537 235) in its capacity as trustee for the HOPPERS CROSSING UNIT TRUST (ABN 83 405 769 465) & ANOR (according to the attached Schedule)	Plaintiffs
v
PROBUILD CONSTRUCTIONS (AUST) PTY LTD (ACN 095 250 945) (subject to Deed of Company Arrangement) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2022, and further written submissions in reply filed by the Plaintiffs on 29 November 2022 and by the Second Defendant on 2 December 2022 16 March 2023, and further written submissions filed by the Second Defendant on 27 March 2023 and by the Plaintiffs on 30 March 2023
DATE OF RULING:	29 June 2023
CASE MAY BE CITED AS:	Wadren Pty Ltd & Anor v Probuild Constructions (Aust) Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 348

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PRACTICE AND PROCEDURE — Preliminary discovery pursuant to rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) — Discovery sought from prospective defendant of documents evidencing confirmation of indemnity or denial of indemnity under insurance policy and of documents relevant to whether insurance funds available if claim successful — Whether sufficient information to decide whether to commence proceedings— No reasonable cause to believe there is a right to relief for breach of contract where no privity between parties — Insufficient evidence for relief based on misrepresentation, misleading or deceptive conduct – Power to order preliminary discovery is limited by the words ‘right to obtain relief’ in rule 32.05 of the Rules, which do not extend to documents relating to likelihood of recovery if claim is successful — Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust (Ruling No 1) [2014] VSC 481 —Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435.

PRACTICE AND PROCEDURE — Preliminary discovery — General discretion — Confidentiality of insurance documents — Whether Court should decline to exercise discretion under rule 32.05 of the Rules due to confidentiality — Obligation of good faith — Documents beyond those agreed or ordered to be produced are confidential — Declined to order production of such documents — Ingram v Ardent Leisure Ltd [2020] FCA 1302.

PRACTICE AND PROCEDURE — Preliminary discovery — Discovery to identify a defendant — Whether sufficient information in relation to the identity of relevant co-insurers — Plaintiff entitled to know the identity of co-insurers — Unclear whether necessary to order production as discovery orders against other party likely to disclose the identity of relevant co-insurers — Real risk that communications are commercially sensitive or legally privileged — Rule 32.03 of the Rules.

PRACTICE AND PROCEDURE — Consent orders — Consent orders should only be made when ‘all parties to a proceeding are agreed’ — Declined to make orders —Rule 59.07 of the Rules —

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: [2023] VSC 348
Decision Date: 29 June 2023

CaseChat Overview and Summary

Wadren Pty Ltd sought an order for preliminary discovery from Probuild Constructions (Aust) Pty Ltd, a prospective defendant, under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The applicant sought discovery of documents evidencing confirmation or denial of indemnity under an insurance policy, as well as documents relevant to whether insurance funds would be available if Wadren's claim were successful. The matter was before the Supreme Court of Victoria.

The court was required to determine whether there was sufficient information to decide whether to commence proceedings. The key issues were whether there was a reasonable cause to believe there was a right to relief for breach of contract, given that there was no privity between the parties, and whether there was sufficient evidence for relief based on misrepresentation, misleading, or deceptive conduct. Additionally, the court considered whether the power to order preliminary discovery was limited by the words 'right to obtain relief' in rule 32.05 of the Rules, and whether this limitation extended to documents relating to the likelihood of recovery if a claim was successful.

The court found that there was no reasonable cause to believe that there was a right to relief for breach of contract, as there was no privity between the parties. Furthermore, the evidence was insufficient for relief based on misrepresentation, misleading, or deceptive conduct. The court held that the power to order preliminary discovery was limited by the words 'right to obtain relief' in rule 32.05 of the Rules, and that this limitation did extend to documents relating to the likelihood of recovery if a claim was successful. Consequently, the court declined to exercise its discretion to order preliminary discovery due to the confidentiality of the insurance documents. The court also declined to make consent orders, as not all parties were in agreement.

The court declined to order the production of documents beyond those agreed or ordered to be produced, as they were considered confidential. The court held that the obligation of good faith required that documents beyond those agreed or ordered to be produced were confidential. The court noted that there was a real risk that the communications were commercially sensitive or legally privileged, and that discovery orders against other parties were likely to disclose the identity of relevant co-insurers. The court also declined to make consent orders, as not all parties were in agreement.

Orders