New South Wales Supreme Court CITATION : Frome Street Investments No 43 Pty Ltd & Ors v Mainrhythm Pty Ltd & Ors [2006] NSWSC 1037 HEARING DATE(S) : 26/09/06 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 09/26/2006 DECISION : Application dismissed with costs. CATCHWORDS : PROCEDURE - Discovery and Interrogatories - Whether orders for further discovery, an affidavit as to inquiries made for documents and interrogatories as to the origin of documents should be made - Defendants in possession of a copy of an undiscovered document - Evidence that plaintiffs' procedure was to return original invoice or letter seeking payment with cheque - Evidence that neither original nor copy of document in possession, custody or control of plaintiffs- Copy of another document discovered but controversy as to original Frome Street Investments No 43 Pty Ltd - 1st Plaintiff Frome Street Investments No 42 Pty Ltd - 2nd Plaintiff Wendy Lynette Randall - 3rd Plaintiff PARTIES : Mainrhythm Pty Ltd - 1st Defendant Bayview Land Development Pty Ltd - 2nd Defendant Eric Pedley Freeman - 3rd Defendant Peter Larcombe - 4th Defendant Kevin McMaster Rodgers - 6th Defendant FILE NUMBER(S) : SC 5303/02 COUNSEL : Mr R Alkadamani - Plaintiffs SOLICITORS : James Lee Solicitors - Plaintiffs Paul Bard Lawyers - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J TUESDAY 26 SEPTEMBER 2006 5303/02 FROME STREET INVESTMENTS NO 43 PTY LTD & ORS v MAINRHYTHM PTY LTD & ORS EX TEMPORE JUDGMENT 1 There is before the Court an amended Notice of Motion that in par 1 seeks further discovery from the plaintiffs by way of verified supplementary list of documents. An order that the plaintiffs serve an affidavit as to inquires made by them to identify all discoverable documents within the scope of the categories of documents with respect to which an order for discovery was made is sought in par 2. 2 The basis for the contention that the Court should order further discovery arises from the existence in the hands of the defendants of a copy of an undiscovered letter of 2 November 2001 from McGlynn & Partners Lawyers to Mrs Wendy Randall and Mr Michael Randall. The letter refers to a conference and confirms that Mr and Mrs Randall had withdrawn their instructions and instructed new solicitors to act both for them and the Randall companies. There followed confirmation that the solicitors held a series of files and documents. The letter contained the following paragraph: "The files marked with an astrix ( sic) and the documents (except C G Randall documents) are available for collection upon receipt of your cheque for $460.90 in the payment of the enclosed Frome Street Investments No 43 Pty Limited account. The remaining files are held in our off site storage facility and will take a week or two to have returned to the office, collated and made available to you for collection." 3 In an affidavit sworn by Alexander Lee, the solicitor for the plaintiffs, the deponent swore that he had been informed by Wendy Randall that the letter in question was not discovered by the plaintiffs because the plaintiffs did not have a copy or the original document. The deponent swore that he had been informed by Wendy Randall that it was her usual practice to return any original invoice or letter requiring payment with a cheque in payment of the invoice or letter in order to allow easy reference of the payment, and she did not consider the original invoice or letter to belong to her after she returned it as she did not consider it important and did not require it to be returned. The deponent had been informed by Wendy Randall that as it was her usual practice to return original invoices or letters with payment, she believed she returned the 2 November 2001 letter with a cheque for payment. 4 Mr Lee said that neither Mr Hahn nor anyone else at McGlynn & Partners produced the document to James Lee Solicitors when they made inquiries about documents. He said that he had been informed by Michael Randall that he did not have a copy or the original of the document and his practice was to give to Wendy Randall invoices or letters requiring payment for matters connected with the first and second plaintiffs. 5 Mr Lee also said that he had observed that when James Lee Solicitors received payment from Wendy Randall by cheque, she returned the original documents issued by his office. 6 The applicant referred to the fact that the letter was not only addressed to Michael Randall at a postal address but also to an email address. I was invited to draw the inference that the email existed on the hard drive of a computer in the control of Mr Randall. I am not prepared to draw that inference in light of the direct evidence of Mr Lee that he had been informed by Mr Randall that he did not have in his possession, custody or control, the original or a copy of the document. 7 In my view, the evidence before the Court establishes that the plaintiffs did not have the 21 November 2001 letter or a copy of it and were not obliged to include it in their discovery. 8 In those circumstances, an insufficient basis has been made out for the orders sought in par 1 and par 2 of the amended notice of motion. 9 Par 3 of the amended notice of motion seeks the leave of the Court to administer interrogatories. The interrogatories are designed to determine the origin of files delivered from McGlynn & Partners and others in order to trace the origin of various documents. The application is not only based upon the letter of 21 November 2001 but also upon a letter from MainRhythm Pty Ltd to McGlynn & Partners of 3 August 1994. A copy of the letter has been discovered but there is a controversy in relation to the original. 10 In my view that controversy and the letter of 21 November 2001 are insufficient to establish that there has been a failure in the discovery process by the plaintiffs and in the exercise of my discretion I decline to make an order at this stage for the administering of interrogatories. 11 I therefore dismiss the amended notice of motion. I do not propose to make an order that costs be paid immediately upon assessment or agreement as was sought. I shall simply make an order for costs. 12 I stand the matter into the long matters list. I order the applicants to pay the plaintiffs' costs thrown away by the filing of the amended notice of motion. I order the applicants to pay the plaintiffs' costs of the motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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