Supreme Court New South Wales Medium Neutral Citation: Ng v Wisdom Properties Group Pty Ltd [2020] NSWSC 1359 Hearing dates: On the papers Date of orders: 06 October 2020 Decision date: 06 October 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Subpoena to produce filed 29 June 2020 served by the Defendant on Stockland set aside Catchwords: CIVIL PROCEDURE – subpoena – application to set aside – where documents sought date from 1997 to 2020 – where production of documents would not necessarily obviate need for physical investigation of site CIVIL PROCEDURE – subpoena – application to set aside – secondary purpose of subpoena to obtain evidence to justify a cross claim Category: Procedural and other rulings Parties: Paul Ng (First Plaintiff) Stella Ng (Second Plaintiff) Wisdom Property Group Pty Ltd (Defendant) Stockland Lensworth Glenmore Park Pty Ltd (Interested Party) Representation: Solicitors: Adams Lawyers (Plaintiffs) Holding Redlich (Defendant) HWL Ebsworth (Interested Party) File Number(s): 2020/166292 Judgment 1. The plaintiffs, Mr and Ms Ng, own a property in Glenmore Park. They bring these proceedings against the defendant, Wisdom Property Group, which constructed a home on the property pursuant to a building contract made on 17 December 2012. Mr and Ms Ng allege that there are structural defects in and damage to their house. 2. The proceedings were originally commenced in the NSW Civil and Administrative Tribunal and were removed to this Court in June 2020. 3. Mr and Ms Ng have served a Technology and Construction List Statement. Wisdom is yet to file its Technology and Construction List Response. 4. Wisdom contends that it is necessary for it to ascertain the correct site classification of the property to determine: 1. how to respond to Mr and Ms Ng's claims regarding the cause of damage and the scope of remedial works required; and 2. whether to make a cross-claim against a structural engineer engaged to prepare structural designs for the property. 1. Wisdom has engaged a geotechnical engineer, Mr Peter Redman, to advise them on the correct site classification of the property. 2. Mr Redman has advised Wisdom that: 1. to opine on the correct site classification, he requires information about the depth, nature and location of fill placed at the property; 2. such information "should be" contained in reports prepared at the time the fill was placed; and 3. if such reports are not available primary ground investigations are required which will be difficult to complete, because of the possible depth of fill because there is a house constructed on the property giving limited access to the necessary equipment to complete the investigation. 1. Were primary ground investigations required, they are likely to cost something in the order of $100,000. 2. In those circumstances, Wisdom has served a subpoena on Stockland Lensworth Glenmore Park Pty Ltd, the original developer of the "Glenmore Park Project", part of which involved Mr Ng's property. 3. By notice of motion filed on 25 September 2020, Stockland seeks to set aside the subpoena or, alternatively, restrict its scope. 4. The subpoena seeks production of six identified geotechnical reports [1] together with: "Any other reports or documents, dated between 1997 and 2020 containing geotechnical information regarding land that includes the area currently known as Lot 1612 in DP 1161694, which: (a) is located at 31 Binyang Avenue, Glenmore Park NSW 2745; and (b) formed part of the Stage 2 Western Precinct and Stage 16A subdivisions of the Glenmore Ridge Estate. Any correspondence which attaches or refers to the [six geotechnical reports]: (a) sent to Council or received by [Stockland] from Council between 1999 and June 2012; (b) sent to the Ngs or received by [Stockland] from the Ngs between December 2011 and June 2012; or (c) sent to [Wisdom's structural engineer] or received by [Stockland] from [Wisdom's structural engineer] between March 2012 and December 2013." 1. On behalf of Stockland, Ms Clare Roberts has sworn an affidavit in which she deposes to the steps Stockland would have to take to locate the documents sought. "Further, to my knowledge the Project commenced approximately in 2005 and was completed approximately in 2013. The documents that are being called for by the Subpoena are from well beyond 2005 dating as far as 1999, prior to the commencement of the Project. As the Project was completed in or around 2013, I am not aware of any development managers that worked on the Project during its development phase are still employed by Stockland. These previous employees may be persons who might have documents, emails or other electronic documents called for by the Subpoena. I am informed that in 2013, there were approximately 1,013 persons who were employed by Stockland … This includes persons in various teams in Stockland including but not limited to marketing, commercial, property and construction. It is unclear to me how many of the 1,013 persons within Stockland worked on the Project and may be persons who might have documents, emails or other electronic documents called for by the Subpoena. Further, I am informed that Stockland only keeps hard copy records of documents in archive for 7 years therefore documents which are called for by the Subpoena may have been destroyed. My understanding is that any documents which are kept by Stockland for more than 7 years are on a project by project basis and detailed investigation will need to be carried out to determine the extent that the documents relevant to the Subpoena are in long term archive. I am informed that the long term archives are located at Grace Records which houses documents from thousands of projects and matters over the years. As best as I can and based on preliminary searches, I estimate that it will take me approximately 40 hours to search for the documents that are called for by the subpoena." 1. In its submissions, Wisdom contended that, despite Ms Roberts' evidence, the volume of materials that it would be necessary for Stockland to review "should not be excessive", the location of six geotechnical reports sought "should also be straightforward", and that the email communications sought "will not be difficult to locate". However, these submissions do not engage with Ms Roberts' evidence. The geotechnical reports sought date from between 1999 and 2011, and the reports, documents and correspondence sought is between a date rate of 1997 and 2020. 2. In those circumstances, I accept Ms Roberts' evidence that it would take the time the subject of her evidence to locate the documents. 3. There are competing interests at play here. On the one hand, if Wisdom is not able to obtain the geotechnical reports it seeks, it will be necessary for it to conduct the primary ground investigation that Mr Redman has recommended. On the other hand, there is no evidence that Stockland still has, or is likely still to have in its possession, the six geotechnical reports referred to in the Summons. Nor is there any evidence as to what those reports are likely to contain and whether their production would in fact obviate the need for Wisdom to conduct primary ground investigations. 4. In my opinion, it would be oppressive to impose this obligation on Stockland. Further, the avowed purpose of the subpoena is not only to assist Wisdom defend the case brought against it by Mr and Ms Ng but endeavour to obtain evidence to justify a cross claim against Wisdom's structural engineer. 5. This is not an appropriate use of the subpoena. 6. I order that the subpoena to produce filed 29 June 2020 served by the Defendant on Stockland Lensworth Glenmore Park Pty Ltd be set aside. 7. I order that the Defendant pay Stockland's costs of its notice of motion of 25 September 2020. ********** Endnote 1. The subpoena calls for two further reports, but Wisdom does not press for production of these documents. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2020