Ace Hire Aust Pty Limited v ADI Limited [2006] NSWSC 969

New South Wales Supreme Court

CITATION : Ace Hire Aust Pty Limited v ADI Limited [2006] NSWSC 969

HEARING DATE(S) : 15/9/06 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 09/15/2006

DECISION : Order for defendant to depose as to extent of sufficiency of verified list of documents.

CATCHWORDS : Practice and Procedure - Additional discovery

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW)

Azzi v Volvo (2006) NSWSC 283 CASES CITED : British Association of Glass Bottle Manufacturers Ltd v Nettlefold (1912) AC 209 Mulley v Manifold (1959) 103 CLR 341

PARTIES : Ace Hire Aust Pty Limited (Plaintiff) ADI Limited (Defendant)

FILE NUMBER(S) : SC 50008/06

COUNSEL : Mr M Cohen (Plaintiff) Mr Orsborn (Defendant)

SOLICITORS : Cosoff Cudmore Know (Plaintiff) Steven Kouris Lawyers (Defendant)

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

EINSTEIN J

Friday 15 September 2006 ex tempore Revised 19 September 2006

50008/06 ACE HIRE AUST PTY LIMITED v ADI LIMITED

JUDGMENT

1 The original notice of motion sought an order pursuant to regulation 21.2 of the Uniform Civil Procedure Rules 2005 that the defendant provide the plaintiff with further and better discovery and an order that the defendant discover all documents enumerated by category under cover of a letter dated 23 May 2006. 2 During the hearing of the notice of motion the plaintiff's counsel sought and obtained leave to amend the notice of motion to now seek an order that the company secretary or other proper officer of the defendant depose upon affidavit to the conduct, extent and sufficiency of the verified list of documents in terms of the documents which have been produced. That application for leave to amend was not opposed. 3 The Court has before it an affidavit of Mr Kevin Rohith Pathinather sworn on 11 September 2006, being a solicitor at the firm of solicitors on the record for the plaintiff. 4 The Court also has before it a bundle of correspondence tendered by the defendant and marked as exhibit R1. The parties have also been content to respectively treat as before the Court, the lists of documents filed on the one hand by the defendants and on the other hand by the plaintiff. 5 The plaintiff claims that the relief now sought is appropriate as a result of the inadequate discovery given by the defendant and is necessary to permit the plaintiff to undertake the preparation of its evidence for trial, which it submits has been impeded by the default of the defendant in giving proper discovery. 6 The background to the matter as between May 2006 and 11 September 2006 is conveniently chronicled in paragraphs 4 to 17 inclusive of the plaintiff's submissions: "4. On 23 May 2006, the Solicitors for the Plaintiff served the list of categories of discovery required to be given by the Defendant. 5. On 2 June 2006, Bergin J made orders by consent that the time for discovery and inspection was to be extended to 21 July 2006. 6. On 21 July 2006, the Plaintiff filed its verified List of documents, but by reason that the Defendant was in default, time for compliance by the Defendant was extended by the Court to 11 August 2006. 7. On 2 August 2006, the solicitors for the Plaintiff communicated with the solicitor for the Defendant notifying the default with compliance with the timetable. 8. On 15 August 2006, the Defendant filed its verified List of Documents out of time. 9. On 18 August 2006, the solicitors for the Plaintiff notified the solicitors for the Defendant that the discovery given was deficient. 10. On 18 August 2006, the solicitor for the Defendant responded that a later reply would be provided. 11. On 22 August 2006, the solicitors for the Plaintiff were able to undertake inspection. 12. On 31 August 2005, the solicitors for the Plaintiff communicated further with the solicitors for the Defendant noting that the deficiency in discovery given by the Defendant was prejudicing the Plaintiff's preparation of its evidence. 13. On 1 September 2006, copies of documents requested from the Defendant were provided to the solicitors for the Plaintiff. 14. On 5 September 2006, the solicitors for the Defendant responded indicating that upon his instructions all relevant documents had been discovered. 15. On 6 September 2006, the solicitors for the Plaintiff communicated further with the Solicitor for the Defendant noting additional deficiencies with the discovery provided by the Defendant. 16. On 6 September 2006, the solicitor for the Defendant replied noting that a response would be provided on 8 September 2006. 17. On 11 September 2006, the solicitor for the Defendant sent a further response to the solicitor for the Plaintiff that he would revert back shortly."