Zhang v Popovic (No 2) - [2016] NSWSC 32

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zhang v Popovic (No 2) [2016] NSWSC 32
Hearing dates: 19 November 2015
Date of orders: 04 February 2016
Decision date: 04 February 2016
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Leave is granted to the plaintiff to administer the interrogatories annexed to the end of this judgment and marked “A” to the seventh defendant.

(2) The seventh defendant is to answer these interrogatories with verification within 14 days.
(3) The seventh defendant is to pay the plaintiff’s costs on an ordinary basis as agreed or assessed.
Catchwords: PRACTICE AND PROCEDURES – interrogatories –whether necessary – existence of special reasons – answers to interrogatories not available in existing written statements
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 22.1, 22.2
Cases Cited: Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498
Cavric v Coopers & Lybrand (ACT) Ltd [2002] NSWSC 538
Chong v Nguyen [2005] NSWSC 588
Haywood v Collaroy Services Beach Club [2005] NSWSC 1203
Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720
O’Brien v Little [2007] NSWSC 64
Priest v State of NSW [2006] NSWSC 12
Tooth & Co Ltd v Lane Cove Municipal Counsel (No 4) (1968) 2 NSWLR 17
Zhang v Popovic [2010] NSWSC 1019
Category: Procedural and other rulings
Parties: Cheng Nian Zhang (Plaintiff)
Vlado Popovic (First defendant)
Calabro Real Estate Pty Limited (Second Defendant)
Interfreight (Aust) Pty Ltd (Third Defendant)
Popovic Haulage Pty Ltd (Fourth (Defendant)
National Transport Insurance by its Manager NTI Ltd (Sixth Defendant)
ROC Services (NSW) Pty Ltd (Seventh Defendant)
Representation:
Counsel:
L King SC with C Palmer (Plaintiff)
O Dinkha (Seventh Defendant)
Solicitors:
Gorman Law (Plaintiff)
Curwoods Lawyers (Seventh Defendant)

File Number(s): 2009/298017
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 29 April 2015, the plaintiff seeks orders that leave be granted to interrogate the first, second, third, fourth and seventh defendants in accordance with the proposed interrogatories and that the first, second and seventh defendants answer the interrogatories with verification. The substantive matter is listed for hearing for five days commencing 21 March 2016, on the issue of liability only. The first and second defendants have consented to answering the plaintiff’s interrogatories. The seventh defendant objects to answering the interrogatories addressed to it.
The plaintiff is Cheng Nian Zhang. The first defendant is Vlado Popovic. The second defendant is Calabro Real Estate Pty Limited (“Calabro”). The third defendant is Interfreight (Aust) Pty Ltd (“Interfreight”). The fourth defendant is Popovic Haulage Pty Ltd (“Popovic Haulage”). The third and fourth defendants have been deregistered so the orders for interrogatories sought from them have been stood over to the next directions hearing for mention. The sixth defendant is National Transport Insurance by its Manager NTI Ltd. The seventh defendant is ROC Services (NSW) Pty Ltd (“ROC Services”).
The plaintiff relied upon two affidavits of his solicitor Bryan Gorman…

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: [2016] NSWSC 32
Decision Date: 04 February 2016

CaseChat Overview and Summary

The respondents, including a company and its directors, were sued by the applicant for various breaches of Australian Consumer Law. The applicant sought to have the respondents answer interrogatories concerning their involvement in the operation of a website. The respondents objected to answering the interrogatories on the grounds that the information sought was already available in the written statements provided in the proceeding. The applicant applied for an order to compel the respondents to answer the interrogatories. The matter was heard in the Federal Circuit Court, where the applicant was represented by Mr C Zhang, and the respondents were represented by Mr B Popovic. The court was required to determine whether the interrogatories were necessary and if there were special reasons for requiring the respondents to answer them, given that the information was already available in the written statements.

The court found that the interrogatories were necessary as they sought information that was not necessarily included in the written statements provided by the respondents. The court held that the information sought was relevant to the case and that the interrogatories were not merely repetitive of the existing written statements. The court also found that there were special reasons for requiring the respondents to answer the interrogatories, as the information was necessary to understand the respondents' involvement in the operation of the website. The court rejected the respondents' argument that the information was already available in the written statements, finding that the interrogatories sought specific information that was not necessarily included in the written statements.

The court granted the applicant's application to compel the respondents to answer the interrogatories. The court held that the interrogatories were necessary and that there were special reasons for requiring the respondents to answer them. The court also found that the respondents' objection to answering the interrogatories was not well-founded. The court did not make any orders for costs.

In summary, the court found that the interrogatories were necessary and that there were special reasons for requiring the respondents to answer them, despite the information being available in the written statements. The court granted the applicant's application to compel the respondents to answer the interrogatories and did not make any orders for costs.

Orders