Ian Edward Morton & 5 Ors v Nylex Ltd & 1 Or [2007] NSWSC 562

New South Wales Supreme Court

CITATION : Ian Edward Morton & 5 Ors v Nylex Ltd & 1 Or [2007] NSWSC 562

HEARING DATE(S) : 22/05/07

JUDGMENT DATE : 4 June 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

DECISION : 1. Order that the amended summons be dismissed; 2. order that the plaintiffs pay the first defendant's costs of the proceedings.

CATCHWORDS : PRACTICE AND PROCEDURE – Preliminary discovery – Whether requirements of r 5.3(1)(a) of Uniform Civil Procedure Rules 2005 (NSW) are satisfied – Where it appears to the Court that the applicants may be entitled to make a claim for relief – Where it appears to the Court that reasonable inquiries have been made – Where relevant documentation already obtained through those inquiries – Where applicants have not disclosed what information they possess or identified what information is lacking for decision to be made – Whether it appears to the Court that applicants "unable to obtain sufficient information to decide whether or not to commence proceedings" – Objective assessment by the Court of information already possessed by the applicants is required to determine whether that information is sufficient for such a decision to be made – Requirements of r 5.3(1)(a) not satisfied – Order that application be dismissed. - (NSW) Uniform Civil Procedure Rules 2005, rules 5.3 and 5.4 - (CTH) Corporations Act 2001, ss 232 and 233

Uniform Civil Procedure Rules 2005 (NSW) LEGISLATION CITED : Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Evidence Act 1995 (NSW)

Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595 Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd, Lindgren J, Federal Court of Australia, 24 May 1996, BC 9602085 CASES CITED : St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238 Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591