Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883

New South Wales Supreme Court

CITATION : Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883

HEARING DATE(S) : 13/08/08

JUDGMENT DATE : 29 August 2008

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Preliminary discovery refused

CATCHWORDS : PROCEDURE- discovery - preliminary discovery - inability to obtain "sufficient information to decide whether or not to commence proceedings" - where explicit threat of particular proceedings already made

LEGISLATION CITED : Uniform Civil Procedure Rules 2005, rule 5.3

CATEGORY : Procedural and other rulings

Contour Building and Construction Pty Limited - Plaintiff PARTIES : Peter Kerr - First Defendant Resipro Group Pty Ltd - Second Defendant

FILE NUMBER(S) : SC 3782/08

Mr T Saunders - Plaintiff COUNSEL : Mr B DeBuse - First Defendant Mr G A Donnellan - Second Defendant

UTR Law - Plaintiff SOLICITORS : Armstrongs Solicitors Pty Limited - First Defendant Turnbull Hill Lawyers - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

FRIDAY, 29 AUGUST 2008

3782/08 CONTOUR BUILDING AND CONSTRUCTION PTY LIMITED v PETER KERR & ANOR JUDGMENT 1 By its summons filed on 11 July 2008, the plaintiff seeks relief under rule 5.3 of the Uniform Civil Procedure Rules 2005 by way of orders that the defendants give discovery to the plaintiff of documents within categories specified in the summons. 2 The application is an application for preliminary discovery and it is appropriate to set out at once the whole of rule 5.3: " 5.3 Discovery of documents from prospective defendant (cf Federal Court Rules , Order 15A, rules 6, 7 and 9) (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person ( the prospective defendant ) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.