Suncorp Metway v Rider Levett Bucknall [2012] NSWSC 975

Supreme Court New South Wales

Medium Neutral Citation: Suncorp Metway v Rider Levett Bucknall [2012] NSWSC 975 Hearing dates: 17/08/2012 Decision date: 17 August 2012 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Limited disclosure to be given. Catchwords: [PROCEDURE] - Practice Note SC Eq 11 - disclosure - where parties seek an order for disclosure before service of evidence - whether discovery categories too broad. Legislation Cited: Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth) Category: Procedural and other rulings Parties: Suncorp-Metway Limited (ACN 010 831 722) (Plaintiff) Rider Levett Bucknall NSW Pty Ltd (ACN 003 234 026) (Defendant) Representation: Counsel: N J Kidd (Plaintiff) A J McInerney (Defendant) Solicitors: Allens (Plaintiff) TressCox (Defendant) File Number(s): 2011/363600

Judgment (EX TEMPORE - REVISED 17 aUGUST 2012) 1HIS HONOUR: The plaintiff bank lent a large sum of money to a developer known as FTFS Holdings Pty Limited to enable it to carry out a development of a property at Five Dock. FTFS was unable to complete the development and became insolvent. The bank says that it has incurred a substantial loss.

Issues in the litigation 2Of present significance, the bank says that it was relevantly induced to lend the money to FTFS because of a report or reports prepared for it by the defendant, a firm of quantity surveyors. The defendant (RLB) reported as to the estimated cost of carrying out the development proposed by FTFS, the time to carry out that work, and other matters. According to the bank, RLB was negligent, and otherwise liable, because its report was seriously inadequate both as to the cost of construction and as to the time for completion of the development. 3RLB is no doubt in a position to defend those aspects of the case on their merits, although I note in passing that many paragraphs of RLB's list response "do not admit" the allegation to which they purport to reply. That is not consistent with the requirements for a list response set out in paras 10 and 11 of Practice Note SC Eq 3. See, in particular, para 11.2, which requires a defendant's contentions to admit or deny allegations made by the plaintiff. 4For present purposes, no complaint is made about the tactic of "not admitting" various allegations but I would not want it thought that, by passing it over, I am expressing some tacit approval of that practice. I am not. 5Of present significance, para 40 of the list response alleges that if RLB has any liability to the bank, the bank caused or contributed to the loss in respect of which it sues RLB. Detailed particulars are given of that allegation. They allege, among other things, that the bank did not follow its own procedures when it agreed to grant the loan to FTFS and when, from time to time, it agreed to vary it. 6Para 41 of the list response asserts that there are some six concurrent wrongdoers in respect of what is said to be an apportionable claim for the purposes of s 34(1) of the Civil Liability Act 2002 (NSW), and s 87C(B)(1) of the then Trade Practices Act 1974 (Cth). RLB asks the court to limit any judgment against it for no more than is whatever may be found to be its just contribution to the bank's loss and damage. 7Paras 42 and following of the list response then plead and give particulars of the matters that are said to make each of the six individuals or entities concurrent wrongdoers. 8One of the issues raised by RLB is as to the bank's reliance on its report. I am not entirely sure how that could arise, in circumstances where the bank commissioned the report for the purpose of deciding whether or not to grant the loan and, if it did, on what terms. Nonetheless, the allegation of reliance is denied.