Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 921

Supreme Court New South Wales

Medium Neutral Citation: Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 921 Hearing dates: 27/06/2011 Decision date: 27 June 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Set aside paragraphs 1-3 of the notice to produce. Order defendant produce to the Court documents referred to in paragraphs 4-8 of the notice to produce. Catchwords: PRACTICE AND PROCEDURE - Notices to produce - application to set aside notice - certain paragraphs in notice relate to documents of little significance to proceedings - certain paragraph in notice fails specificity test by not calling for specific documents - certain paragraph in notice seeks documents to provide basis to cross-examine defendant witness where such evidence would be outside scope of particular witness - paragraphs set aside. Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 34.1, r 34.2 Category: Procedural and other rulings Parties: Eddie Michael Awad (first plaintiff) Karen Elizabeth Awad (second plaintiff) Twin Creeks Properties Pty Ltd (defendant) Representation: Counsel: CJ Birch SC and DS Wienberger (plaintiff) J Robson SC and D Healey (defendant) Solicitors: Thurlow Fisher Solicitors (plaintiffs) Surry Partners Lawyers Pty Ltd (defendant) File Number(s): 2009/291401

Judgment (ex tempore) 1(NSW) Uniform Civil Procedure Rules 2005, r 34.1, provides that a party may, by notice served on another party, require the other to produce to the court at any hearing in the proceedings, any specified document or thing. UCPR, r 34.1(2), provides that the other party must comply with a notice to produce by producing the notice or a copy of it, and any specified document or thing, to the court or alternatively to the registrar, at the date, time and place specified for production. UCPR, r 34.2, provides that unless the Court otherwise orders, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession. 2The defendant, by notice of motion, seeks to have the notice to produce set aside. Argument on the motion focused on specific paragraphs of the notice to produce, rather than on its effect as a whole - apart from the observation that it was served on 21 June 2011, some three clear business days before the commencement of the hearing on 27 June. 3Paragraph 1 of the notice calls for the front page of all contracts for sale entered into by the defendant to sell any of the land within Stage 2 at Twin Creeks, without limitation as to time. I can see that contracts for sale of land in Stage 2 could be relevant to valuation, which is an issue in the proceedings. The absence of any limitation as to time, however, would capture many recent sales, the relevance of which to valuation is not apparent. Although it was submitted that such contracts would also provide a basis for cross-examination of Mr Wiesener, the primary witness for the defendant, to elicit views as to the coincidence between changes in the plans for the development and changes in selling prices, it is far from apparent that that would be within the legitimate scope of Mr Wiesener's evidence as a witness. Therefore, I think paragraph 1 is too wide. 4Paragraph 2 calls for letters of demand and statements of claim issued by purchasers of lots in Twin Creeks, other than the plaintiffs' lot. This material is sought, ostensibly, to permit cross-examination of Mr Wiesener, with a view to obtaining concessions that various representations or statements were misleading or had the capacity to mislead. A concession by Mr Wiesener to that effect, based on an assertion made by a person not a party nor a witness to the proceedings would, it seems to me, be of remote, if any, significance in the context of these proceedings. 5Paragraph 3 calls for the following: All documents and reports prepared or sent by the defendant (or its agents) prior to the defendant's purchasing Twin Creeks in mid 2003 and 27 February 2006, for any of the indirect owners and/or investors of the Twin Creeks Development, including but not limited to SPP No 2 (Twin Creeks) Pty Ltd and AMP Limited, in respect of the plans and future plans and intentions of the Twin Creeks site, including but not limited to plans for future subdivision, plans for higher density requirements and feasibility studies. 6The short answer is that that paragraph fails the specificity test stipulated by UCPR, r 34.1. It does not call for a specified document or thing, but a wide range of documents, some elements of which are specified, but which is plainly extended by use of the words "including but not limited to" in two places. 7No significant objection was taken to the scope of paragraph 4, save as to its date. As I have indicated in the course of argument, the fact that a document may be prepared after the relevant date does not of itself mean that it might not contain relevant information as to the state of affairs before the relevant date. 8It was said that there were no documents to produce in answer to paragraphs 5, 6, 7 and 8. In particular, in respect of paragraph 6, which calls for the model of Twin Creeks referred to in the first plaintiff's affidavit, it is said that the relevant model has changed. The fact that there are no documents to produce in answer to a notice does not demonstrate that the notice is oppressive, vexatious or otherwise inappropriate. It simply elicits the response, "nothing to produce". 9I therefore set aside paragraphs 1, 2 and 3 of the notice to produce dated 21 June 2011. I order that the defendants produce to the Court the documents referred to in paragraphs 4, 5, 6, 7 and 8, to the extent that they are in the defendant's possession, by 12 noon on 28 June 2011.