Supreme Court New South Wales Medium Neutral Citation: Owners Strata Plan 70335 v Walsh Bay Finance [2013] NSWSC 1623 Hearing dates: 18/10/2013 Decision date: 18 October 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Order made for disclosure before evidence. Question of amendments stood over. Costs reserved. Catchwords: PRACTICE & PROCEDURE - disclosure - application for disclosure - where owners strata plan was not in existence at time building contract was entered and relevant works completed - where owners strata plan was unable to identify relevant parties of the building contract and their roles - Practice Note Eq 11 - exceptional circumstances - meaning of exceptional circumstances - principles to be applied PRACTICE & PROCEDURE - application for leave to amend list statement - where application to amend made concurrently with application for disclosure - appropriate to determine application for disclosure prior to application to amend - s 56 Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Leighton International v Hodges [2012] NSWSC 458 Category: Procedural and other rulings Parties: The Owners Strata Plan No. 70335 (Plaintiff) Wash Bay Finance Pty Ltd (First defendant) Bellingham Marine Australia Pty Ltd (Second defendant) International Marina Consultants Pty Ltd (Third defendant) Steve Watson and Partners Pty Ltd (Fourth defendant) Roads and Maritime Services (Fifth defendant) Representation: Counsel: G Inatey SC / JJ Young (Plaintiff) K Gill-Herdman (Solicitor) (First defendant) V Panicker (Solicitor) (Second defendant) LI Heather (Solicitor) (Third defendant) A Horvath (Fourth defendant) LB Gotlieb (Solicitor) (Fifth defendant) Solicitors: Grace Lawyers (Plaintiff) Corrs Chambers Westgarth (First defendant) Dibbs Barker Lawyers (Second defendant) DLA Piper (Third defendant) Wilshire Web Staunton Beattie Lawyers (Fourth defendant) Maddocks (Fifth defendant) File Number(s): 2013/174411 Judgment (ex tempore - revised 18 October 2013) 1HIS HONOUR: The plaintiff is the Owners Corporation of a marina at Walsh Bay. The plaintiff came into existence on registration of the strata plan on 10 June 2003. By then, of course, the relevant work had been substantially if not completely (subject to defects) carried out. 2The plaintiff says that there are defects in the piles or pylons that support the structure. There have been attempts to rectify the defects over the last 10 years or so. At least from the plaintiff's perspective, those attempts have not succeeded. 3The plaintiff commenced these proceedings to ward off the accrual of a limitation period. It accepts that its technology and construction list statement is inadequate. It has notified the defendants of two attempts to replead it in a more satisfactory way. It appears to be common ground that more is needed than has been done so far. 4The plaintiff says that the first defendant is the builder or developer responsible for construction work. The second defendant is said to have been involved in the design and construction of the marina. The same is said of the third defendant. The fourth defendant, or perhaps more accurately its principal Mr Steve Watson, is said to have been the principal certifying authority. The fifth defendant is the owner of the harbour bed and overlying waters. It is said to have been involved in some way, which frankly I do not understand at present, in relation to the development. It is the lessor of the marina to the plaintiff. 5The difficulty that the plaintiff, as the Owners Corporation, has is that by definition it was not a party to the relevant contracts and was not even in existence when the works were done. Thus, it has no way of knowing for certain what were the precise roles of the defendants. 6Before the Court today is the plaintiff's notice of motion filed on 14 October 2013. That seeks two relevant heads of relief. The first is leave to amend, or further to amend. The second is an order for disclosure before evidence. 7Mr Inatey SC, who appeared with Mr Young of counsel for the plaintiff, submitted that it was appropriate for the application for disclosure to proceed first. With the exception of the second defendant, as I have said someone apparently involved in the design and construction, that was either accepted or not opposed. The second defendant appeared to think that the plaintiff should undertake one lot of amendments now and then, at some stage down the track after getting access to relevant documents, have another crack at getting its case right. That does not seem to me to be particularly consistent with the requirements of s 56 of the Civil Procedure Act 2005 (NSW). 8The Practice Note (PN SC Eq 11) requires exceptional circumstances before an order is made before disclosure of documents before evidence. The requirements of the Practice Note have been considered in a number of cases. 9In Leighton International v Hodges [2012] NSWSC 458 at [20], I said, amongst other things, that something is exceptional if it is out of the ordinary or unusual. Thus, I said, for an order to be made for disclosure before evidence, there should be circumstances that are not normal or are not usual. They should be circumstances that are out of the ordinary. They need not be unique. 10I said also, and I wish to emphasise, that what is not required is that the circumstances be exceptional at large. They have to be exceptional in the sense that it they are sufficient to justify an order for disclosure before evidence in the circumstances of the particular case. It is thus less than helpful to look at cases where orders for disclosure have been made and to seek to apply the holding in that case to the facts of a different case. 11Nonetheless, where there are facts that are analogous, judicial reasoning in the earlier case may well illuminate the proper manner of the exercise of discretion in the case under consideration. 12In this case, there are a number of matters that in my view justify the conclusion that the circumstances are exceptional. 13The first arises from the nature of the complaints made about the defects in the plaintiff's pleadings. The defendants say that the contractual relationships, and their responsibilities, have not been adequately pleaded and particularised. It seems to me to be reasonably obvious that access to the documents sought (which in large measure comprise the relevant contractual documents) would enable the plaintiff, if it can be done at all, to meet those complaints. 14As I have noted, the plaintiff was not in existence at the relevant times and was not involved in any way (except that, by force of statute, it came to be the owner) in the relevant events. There is thus some analogy to the facts in Leighton, where the evidence satisfied me that, through reasons that could not be regarded displaying some want of care, Leighton was not in possession of all the relevant documents. 15The defendants, or some of them, have threatened to strike out the proceedings. It is obvious that the only way that the plaintiff can meet that threat is to have access to the documents that, it would appear, may enable it to meet the defendants' complaints. 16Mr Panicker, for the second defendant, submitted that this was all of the plaintiff's making, because it had commenced proceedings without obtaining an order for preliminary discovery or without issuing a subpoena. Quite how the plaintiff could issue a subpoena when there were no proceedings in existence is a matter that has not been explained. As to the former point, I accept that in an ideal world, an application for preliminary discovery might have been the way to proceed. But in circumstances where the cut-off point from a limitation perspective was approaching, the plaintiff can hardly be blamed for seeking to preserve its rights (and the rights of the proprietors from time to time as whose agent it holds the common property) by commencing proceedings. 17Mr Panicker pointed also to various matters of history relating to the plaintiff's unsuccessful attempts to get documents by notices to produce that were too widely framed. I indicated in the course of argument that I did not understand how that could be relevant to the question of exceptional circumstances. The brief opportunity to reflect in the course of giving these reasons has not assisted me to understand the point. 18The other defendants neither consented to nor opposed the application. 19In my view, having regard to the matters that I have briefly recounted, there are exceptional circumstances. They arise from a combination of factors. The plaintiff was not a party to the contract; it was not in existence at the relevant time; its understanding must be facilitated by access to the documents; and the strike-out threats can be met, if at all, once the plaintiff has access to those documents. 20In addition, it seems to me to be consistent with the purposes of s 56 that the question of amendment be considered on the basis of all relevant information properly available, rather than through the two stage process advocated by Mr Panicker. 21I conclude by saying that the documents sought have been described in a way which shows that they are a discrete class, identification and production of which should not involve massive management time or legal costs. None of the defendants, the respondents to the notice of motion, put forward before the Court any evidence of the likely costs involved. 22In the circumstances, I think it is appropriate to make the order sought and accordingly I make an order in terms of prayer 2 of the notice of motion filed on 14 October 2013. 23It will be necessary to fix a time for compliance, which I shall do after hearing from the defendants on that point. It may also be necessary to provide for directions for the further redrafted further amended list statement to be furnished once the documents have been produced and inspected and for the matter to come back if necessary for the question of amendment to be argued. [Counsel addressed.] 24I direct documents ordered to be disclosed be disclosed by Monday 4 November 2013. I direct the plaintiff to serve on the defendants its draft list statement by 26 November 2013. I list the motion on 6 December 2013. I direct the defendants to notify the plaintiff by 3 December 2013 of any objection to the amendment proposed. I note expressly that the parties accept that if the prayer for relief in respect of the amendment is pressed, another judge may deal with that. The question of the costs of today will have to come back to me. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2013