Supreme Court New South Wales Medium Neutral Citation: Neville's Bus Service Pty Ltd v Total Group Constructions Pty Ltd [2020] NSWSC 1433 Hearing dates: On the papers Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Notice to Produce set aside Catchwords: CIVIL PROCEDURE – notice to produce – notice seeks documents not shown on this application to have relevance to issues in proceedings Legislation Cited: Practice Note SC Eq 11 Cases Cited: ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306 Owners Corporation SO 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 Category: Procedural and other rulings Parties: Neville's Bus Service Pty Ltd (Plaintiff) Total Group Constructions (First Defendant) Jay Roberto Squillacioti (Second Defendant) Ronisch Pty Ltd (Third Defendant) Lisa May Squillaciotti (Fourth Defendant) Representation: Counsel: J Adamopoulos (Plaintiff) D P O'Connor (Defendants) Solicitors: Madison Marcus Law Firm (Plaintiff) Adams & Partners (Defendants) File Number(s): 2020/142849 Judgment 1. The plaintiff, Neville's Bus Service Pty Ltd, is the owner and operator of a bus depot at Smeaton Grange. The first defendant, Total Constructions Pty Ltd, is a construction company. 2. In 2014, Neville's Bus Service entered a building contract with Total to carry out construction works at the depot. Those works included external concrete pavement works. 3. Neville's Bus Service contends that the concrete works contain defects in that the works did not conform with specifications under the relevant contract and were not carried out in a workmanlike manner or using suitable materials. 4. The parties have agreed to engage in informal settlement discussions. 5. To facilitate those discussions, on 28 August 2020, by consent, Hammerschlag J ordered that Neville's Bus Service provide Total's expert access to the depot, that Total serve a report by the expert by 2 October 2020 and that the parties attend an informal settlement conference on 16 October 2020. 6. On 24 August 2020 Total served on Neville's Bus Service a notice to produce, requiring production of the following documents: 1. A copy of all actions, suits, claims or demands issued to Camden City Council evidencing or relating to the ingress of water from Turner Road, Smeaton Grange NSW and/or surrounding lands to 48A Bluett Drive, Smeaton Grange NSW ("The Property") for the period 31 December 2014 to date ("The Period"); 2. A copy of all documents, reports and correspondence between you, any Expert or Consultant and Camden Council evidencing or relating to water ingress onto the Property from Turner Road, Smeaton Grange NSW and/or surrounding lands for the period; 3. A copy of all plans, specifications, quotes and/or Contracts evidencing works undertaken or to be undertaken to remedy water ingress from Turner Road, Smeaton Grange NSW and/or surrounding lands for the period. 1. The notice to produce seeks material relevant to water ingress to Neville's Buses site. Neville's Bus Services makes no allegations in its Technology and Construction List Statement concerning water ingress. 2. The justification for the notice to produce is set out in an affidavit of Total's solicitor, Mr Peter Adams as follows: "Subsequent to a site inspection of the Property by Aleemax Pty Ltd, I received instructions from my clients that drainage works had and were being carried out adjacent to and at the Property by either [Neville's Bus Service] and/or Camden Council ("The Turner Road Drainage Works"). These Works were carried out in order to restrict water ingress to the Property. In August 2020, [Total's solicitors] retained a Concrete Specialist, Mahaffey Associates Pty Ltd ("The Second Expert"), to prepare a Report in contemplation of the meeting with [Neville's Bus Service] and specifically to reply to the Costin Roe Report, an Expert retained by [Neville's Bus Service]. On retaining the Second Expert, I advised the Second Expert of drainage works that were being performed in the Turner Road area and the Property. I requested an opinion from the Second Expert as to any damage that may have occurred by the water ingress onto the Property. The information in the Notice to Produce served on the Plaintiff, in my opinion, is necessary for the Second Expert to opine on whether the ingress of water from the Turner Road area could affect the structure of the pavement area located on the Property. … The information requested in the Notice to Produce could assist the Second Expert in providing an opinion as to the cause of damage to the pavement area on the Property. As far as I am aware, the Turner Road drainage works had not been carried out at the time Costin Roe had prepared their Report on behalf of the Plaintiff. If the information is not provided, further costs will be incurred in obtaining another Expert report and may have an effect on the parties reaching a settlement at the settlement meeting." 1. Thus, the basis for seeking the documents in the Notice to Produce is that: 1. someone at Total has told Mr Adams that on an unspecified date either Neville's Bus Service or Camden Council carried out drainage works to restrict water ingress to the depot; 2. Mr Adams has told Total's concrete expert about this and asked that person whether the damage of which Neville's Bus Service complains "may" have occurred as a result of water ingress to the depot; 3. the documents sought are necessary to enable the concrete expert to opine on whether "the" ingress of water "could" have affected the structure of the pavement at the depot; and 4. the documents "could" assist Total's Concrete expert providing an opinion as to the cause of damage to the pavement area. 1. Leaving aside questions such as the broad nature of the categories of documents sought [1] , and the requirements of Practice Note SC Eq 11 [2] , the difficulty there is that there is no evidence, even on information and belief, as to what connection there might be between any water ingress to the depots and the concrete pavement defects of which Neville's Bus Services complains. Mr Adams does not say that Total's concrete expert has opined that water ingress could have caused or affected the concrete pavement. 2. The Notice to Produce looks very much like a fishing expedition and seeks documents not shown on this application to have any apparent relevance to the issues in the proceedings. [3] 3. I order that: 1. The Notice to Produce served by the defendants on the plaintiff dated 24 August 2020 be set aside. 2. The defendants pay the plaintiff's costs of the plaintiff's notice of motion of 9 September 2020. 3. The matter be listed for directions on 23 October 2020. ********** Endnotes 1. Ranging over a period of almost 6 years. 2. Which requirements cannot be side-stepped by use of a Notice to Produce: Owners Corporation SO 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [21]-[24]. 3. Eg see ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306 at [30]. 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: 16 October 2020