Uni-Span Height Safety Pty Ltd v Gold Coat Guardrail Pty Ltd [2009] FCA 819

FEDERAL COURT OF AUSTRALIA

Uni-Span Height Safety Pty Ltd v Gold Coat Guardrail Pty Ltd [2009] FCA 819

PRACTICE AND PROCEDURE – pre-action discovery of documents – Order 15A rule 6 of the Federal Court Rules – alleged misrepresentation of past turnover, predicted turnover and value of the business prior to sale of business – principles to be followed when granting a pre-action discovery order – whether there is reasonable cause to believe the applicant has or may have the right to obtain relief – misunderstanding of financial evidence by the applicant – provision of evidence to the applicant by fifth respondent – investigations of director of applicant not "evidence" – whether applicant made all reasonable inquiries before applying under Order 15A rule 6(b) – no evidence that 4 of the 5 respondents were asked for the evidence sought PRACTICE AND PROCEDURE – freezing order sought against properties of fourth respondent – Order 25A rule 2 of the Federal Court Rules – principles to be followed when granting a freezing order – whether there was a risk of dissipation of assets of the fourth respondent Held: application dismissed with costs – applicant did not satisfy the requirements of Order 15A rule 6 for pre-action discovery – the applicant failed to make all reasonable inquiries before applying for pre-action discover under Order 15A rule 6 – no reasonable cause to believe on the material that there was a cause of action – applicant did not satisfy the requirements of Order 25A rule 2 for freezing order – no prima facie case established to support freezing order – no evidence of risk of frustration or inhibition of Court's process by fourth respondent if freezing order not made

Federal Court Rules O 15A r 6, O 25A r 2

Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500 cited Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 followed CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad (2001) 187 ALR 279 cited Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 followed KGL Health Pty Ltd v Mechtler [2007] FCA 1410 cited Patterson v BTR Engineering (Aust) Limited (1989) 18 NSWLR 319 cited Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 cited St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 followed UNI-SPAN HEIGHT SAFETY PTY LTD (ACN 122 411 198) v GOLD COAST GUARDRAIL PTY LTD (ACN 086 267 441), MCJC PTY LTD (ACN 122 955 186) AS TRUSTEE FOR CARTAN INVESTMENT TRUST, MICHAEL LEIGH CARTAN, JENNIFER ELIZABETH COOLEY and JOE WALSH & ASSOCIATES (A FIRM)