Kieren Leslie Welzel v Stephen Paul Francis [2011] NSWSC 233

Supreme Court New South Wales

Medium Neutral Citation: Kieren Leslie Welzel v Stephen Paul Francis [2011] NSWSC 233 Hearing dates: 24 March 2011 Decision date: 25 March 2011 Before: Einstein J Decision: The defendant is to pay 70% of the plaintiffs' costs of the motion Catchwords: Interlocutory application Costs of Notice of Motion Negotiated settlement Scope of discovery Restrictive approach to general discovery Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Kieren Leslie Welzel (First Plaintiff) OpenIn Pty Limited (Second Plaintiff) OpenIn Holdings Pty Limited (Third Plaintiff) OpenIn Assets Pty Limited (Fourth Plaintiff) Stephen Paul Francis (Defendant) Representation: Counsel: Mr R Gration (Plaintiffs) Mr A Spencer (Defendant) Solicitors: HWL Ebsworth Lawyers (Plaintiffs) Holding Redlich (Defendant) File Number(s): 2008/00290489

Judgment

The notice of motion 1There is before the Court a notice of motion under cover of which the plaintiff seeks to recover from the defendant, the plaintiffs' costs of its amended notice of motion filed on 11 February 2011.

The nature of the proceedings 2The plaintiff seeks declaratory relief concerning a partnership business between himself and the first defendant where under the respective partners would share in the profits and bear the losses of the business in Equal shares, such that the assets of the partnership business would belong to the plaintiff and the defendant in Equal shares. 3Amongst the other claims for relief, the plaintiff claims sundry orders calculated to wind up the partnership business and to take an account of the alleged profits made by the defendant in breach of his fiduciary duty. 4The issues put forward by the plaintiff for determination include whether or not the plaintiff and the defendant conducted a partnership, if so what were the dealings and transactions of the defendant in relation to the partnership and in particular what were the dealings and transactions of the defendant in relation to the business conducted by certain companies. 5The notice of motion sought: (1)The defendant attend Court, whether in person or by video link on a date to be set, for cross examination on his affidavit verifying his List of Documents sworn 7 July 2010. (2)The defendant file and serve within 14 days, a further and better list of documents, in accordance with rule 21.2 of the Uniform Civil Procedure Rules (other than excluded documents) including documents and documents falling within the categories identified in "Schedule A" to these orders. (3)The defendant pay the plaintiff's' costs of the Motion.