District Court New South Wales Medium Neutral Citation: North Shore Real Estate Pty Ltd v Real Estate Property Management Services Pty Ltd [2017] NSWDC 44 Hearing dates: 6 March 2017 – 7 March 2017 Date of orders: 14 March 2017 Decision date: 14 March 2017 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Paragraphs 2, 3, 4 and 15 of the Notice to Produce dated and filed on 7 October 2016 are set aside and LJ Hooker is excused from compliance with those paragraphs; (2) Paragraphs 1 and 2 of the Notice of Motion filed 24 October 2016 are otherwise dismissed; (3) The court will hear the parties in relation to the costs of the Notice of Motion. Catchwords: Practice and procedure – Notice to Produce to the Court – principles relating to setting aside paragraphs of a Notice to Produce – apparent relevance of documents Legislation Cited: Uniform Civil Procedure Rules Australian Consumer Law Cases Cited: Azzi v Volvo [2006] NSWSC 283 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Category: Procedural and other rulings Parties: North Shore Real Estate Pty Ltd ABN 74153648625 (Plaintiff; First Cross-Defendant to the First Cross-Claim) Real Estate Property Management Services Pty Ltd (Defendant; First Cross-Claimant to the First Cross-Claim; First Defendant to the Second-Cross Claim) Leonard David Resnekov (Second Cross-Defendant to the First Cross-Claim) Stephen James Hankins (Third Cross-Defendant to the First Cross-Claim) MC Business Broking Pty Ltd ACN 158 225 873 (Fourth Cross-Defendant to the First Cross-Claim) LJ Hooker Franchising Limited ACN 003 890 453 (Fifth Cross-Defendant to the First Cross-Claim; First Cross-Claimant to the Second Cross-Claim) Representation: Counsel: J Korman (Defendant and Cross-Claimant) D Moujalli (Fifth Cross-Defendant) Solicitors: Buckingham Lawyers (Defendant; First Cross-Claimant to the First Cross-Claim; First Defendant to the Second-Cross Claim) HWL Ebsworth Lawyers (Fifth Cross-Defendant to the First Cross-Claim; First Cross-Claimant to the Second Cross-Claim) File Number(s): 2014/00328638 Judgment 1. Before me is a Notice of Motion filed on 24 October 2016 by the fifth cross-defendant, LJ Hooker Franchising Pty Ltd ("LJ Hooker"), against the defendant and cross-claimant, Real Estate Property Management Services Pty Ltd ("REPMS"), seeking the following orders: "1. That the Cross-Claimant's Notice to Produce dated and filed 7 October 2016 be set aside. 2. In the alternative paragraphs 2, 3, 4, 6, 8, 9, 9A, 10, 12, 13, 14A and 15 of the Notice to Produce be set aside. 3. The Cross-Claimant pay the fifth cross-defendant's costs of this Notice of Motion." 1. Later, LJ Hooker clarified that it no longer sought orders setting aside paragraph 14A but did seek orders setting aside paragraph 14a of the Notice to Produce. 2. The Notice to Produce filed on 7 October 2016 may be found at pages 63-68 of the affidavit of Richard Mark Hamwood sworn on 21 October 2016 which was read by LJ Hooker in support of the orders which it seeks. 3. The Notice to Produce requires the production of documents to the court and is not an inter-parties Notice to Produce. Procedural issues 1. A Notice to Produce to the court is regarded as having the same practical effect as a subpoena so that compliance with the Notice to Produce is mandatory unless production is excused by order of the court. A Notice to Produce to the court may be set aside in circumstances and on grounds equivalent to those applicable to the setting aside of subpoenas: Azzi v Volvo [2006] NSWSC 283 at [4]. In Azzi, Justice Brereton at [4] referred to the grounds upon which a subpoena could be set aside and stated that these included: 1. The subpoena seeks discovery or further discovery from a party; 2. The subpoena is oppressive; and 3. The subpoena calls for the production of documents which have no apparent relevance to the issues in the proceedings. 1. The court has the power to excuse compliance with a Notice to Produce under Part 34.2 of the Uniform Civil Procedure Rules ("UCPR"). 2. The documentation attached to the affidavit of Mr Hamwood sworn on 21 October 2016 shows that the Notice to Produce was subject to extensive correspondence between the parties and has been revised by REPMS on occasions. However, the Notice to Produce relied on remains lengthy and requires extensive production of documentation by LJ Hooker. 3. The issue for the court to determine is whether there are proper grounds to set the Notice to Produce filed 7 October 2016 aside either generally or in relation to particular paragraphs as sought by LJ Hooker in its Notice of Motion. 4. This matter has been consolidated with two other matters to be heard together commencing on 31 July 2017. 5. In essence, the case, in very general terms, revolves around the sale of the business and rent roll of an LJ Hooker franchise on the Upper North Shore of Sydney, first by North Shore Real Estate Pty Ltd to REPMS and Starley Investments Pty Ltd and then by REPMS to Watercorp Investments Pty Ltd. LJ Hooker has been brought into the proceedings as a cross-defendant in the 2014 North Shore Real Estate Pty Ltd proceedings and as a cross-defendant in the 2016 Watercorp Investments Pty Ltd proceedings. The pleadings 1. In relation to its relevance to the pleadings in the matters, LJ Hooker is sued for misleading or deceptive conduct in a Cross-Claim filed 26 November 2015 (and apparently also on 18 November 2015) by REPMS. The Cross-Claim alleges misleading or deceptive conduct by Mr Andrew McCulloch of LJ Hooker in about December 2013 (paragraphs 20-30A). Damages are sought for an alleged breach of Section 18 of the Australian Consumer Law. In addition, in the Watercorp proceedings LJ Hooker, through an employee Ms Elisha Winterford, is alleged to have been guilty of the torts of trespass and negligence by deleting business records on the hard drive on REPMS' computer on 30 January 2015 (paragraphs 51-59 of the First Cross-Claim filed on 5 September 2016). In relation to the first claim, the misleading or deceptive conduct is denied by LJ Hooker. In relation to the other Cross-Claim, while access by Ms Winterford to the computer is admitted, the torts alleged are denied by LJ Hooker. Relevant legal principles 1. Both parties relied upon written submissions and oral submissions. The legal principles to be applied in the matter were not, it appears, in substance in dispute. 2. LJ Hooker submitted as follows: 1. A Notice to Produce may be set aside if it seeks discovery, is oppressive or calls for production of documents which have no apparent relevance to the issues in the proceedings; 2. To satisfy the requirement for "apparent relevance" it must be shown that the document is likely to materially assist the case of the issuing party; 3. A Notice to Produce calling for documents "concerning" or "relating to" some topic or evidencing/establishing something is objectionable. It is oppressive because of its extreme width, thereby imposing an unacceptable burden of interpretation and evaluation on the recipient, and also because it is akin to discovery. 1. Counsel for REPMS made submissions on the legal principles as follows: 1. A Notice to Produce issued under Rule 34.1 of the UCPR plays the same role in relation to a party that is played by a subpoena in relation to a non-party; 2. Courts are more liberal in their treatment of Notices to Produce than subpoenas because they are addressed to parties rather than to strangers; 3. A Notice to Produce issued pursuant to Rule 34 is required to describe the document or category of documents sought by some description or specification; 4. A description of the subject matter of a category of documents which requires that the documents "refer" to something will be sufficient: Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 at 259; 5. In relation to relevance it is sufficient that the category of documents sought could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that it will do so: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [24]-[25]; 6. What the issues are in the substantive proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings: Portal at [25]. 1. In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Tobias JA (with whom Basten JA and Handley AJA agreed) confirmed as applicable the test stated by the trial judge to the effect that it must be shown that it is likely the documentation will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documentation will: at [9], [21]. The word "likely" in this statement of principle does not mean more likely than not but means "on the cards" or something beyond mere speculation or a fishing expedition: at [23], [25]. 2. I accept that the above submissions when read with the statements in ICAP generally state the relevant principles to be applied. A difference between the parties appeared to be in relation to the word "concerning." LJ Hooker said its use in a Notice to Produce meant the description was not sufficiently specific. REPMS submitted that its use was not necessarily fatal and the paragraph needed to be considered as a whole to see if the use of the word "concerning" meant the description was too vague. I prefer REPMS' submission on this aspect. A paragraph in a Notice to Produce must always be reviewed carefully to determine its scope and width even if a general term is used. 3. In my view, the pleadings are crucial to determine the issues in dispute between the parties. While Justice Brereton indicated in Portal at [25] that the affidavits would also be relevant, I do not understand his Honour to say that merely because a matter is referred to in an affidavit means that it immediately becomes relevant for the purposes of a Notice to Produce under Part 34 of the UCPR. However, an affidavit may set out a party's case in relation to a point where the pleadings have not been specific, for example if misleading or deceptive conduct is alleged by a party without detailed particularisation which is then provided by an affidavit which sets out the details of the misleading or deceptive conduct alleged. I believe some caution should be exercised before treating his Honour's statement as one of general application. Otherwise, a party could simply refer to a matter in an affidavit which has no real relevance to the issues in the case and then rely on it to issue a Notice to Produce if there was a denial of the material. 4. Another example is where a party responds in affidavit material by putting forward a meeting or oral conversation in a different date range. There the affidavit will be relevant to determine a valid area for a Notice to Produce. 5. Also, it is important to ensure that the documents sought have a sufficient apparent connection to the issues to justify their production or inspection and that the subpoena has a legitimate forensic purpose to seek the documents and is not merely a fishing expedition or a request for discovery in another guise. Consideration of the Notice to Produce paragraphs 1. LJ Hooker submits that the paragraphs objected to are objectionable on the bases of relevance, oppressive width and ambiguity. REPMS submits that each category of documents sought could possibly throw light on an issue arising from the pleadings or affidavit material filed in these proceedings. Counsel for REPMS has annexed to his submissions a document setting out the relevance of each paragraph in the Notice to Produce and this document refers to the relevant pleadings and affidavits. 2. Whilst oppression was relied upon by LJ Hooker, the affidavit material did not in my opinion show oppression. The documents sought should readily be able to be identified using computer and email searches. It is also assumed that LJ Hooker's hard copy filing system will be well organised and maintained. The onus rests on LJ Hooker to establish oppression. It seems that it has been able to locate older emails despite the evidence suggesting that such emails may be destroyed after six months of a person leaving the employment of LJ Hooker. Paragraph 2 of the Notice to Produce 1. Paragraph 2 of the Notice to Produce is as follows: "2. All documents, including emails, other communications Emails received or sent by LJH, diary and other notes, memoranda, reports, and minutes of meetings, relating to dated or created after 19 November 2013, referring to or recording (a) REPMS' entry into a franchising agreement with LJH; and (b) Oral or other communications between Andrew McCulloch on the one hand and Real Estate Property Management Services Pty Ltd (REPMS) REPMS, Martin Pettit, Fadwa Pettit or Jason Pettit on the other; Other than documents already produced in response to the Notice to Produce served by REPMS on LJH, dated 14 January 2016." 1. LJ Hooker submits that this paragraph calls for documents referring to communications between Andrew McCulloch and persons who include Fadwa Pettit or Jason Pettit. It is submitted that these documents have no apparent relevance to the issues in the proceedings. LJ Hooker submits that the only relevant communication which is particularised by REPMS in its pleading against LJ Hooker is that between Andrew McCulloch and Martin Pettit in or around December 2013. 2. REPMS submits that the relevant pleadings and the affidavit of Andrew McCulloch dated 26 February 2016 refer to meetings in November and December 2013 at which Martin Pettit, Fadwa Pettit and Jason Pettit attended. 3. It is noted that the misleading or deceptive conduct relied upon by REPMS against LJ Hooker is alleged to have occurred in the course of a telephone conversation between Andrew McCulloch and Martin Pettit in or about December 2013. 4. Mr McCulloch refers to meetings and oral conversations in November and December 2013. It is asserted that at the meetings, Mr and Mrs Pettit and Jason Pettit also attended. 5. In my view paragraph 2 of the Notice to Produce is too wide and seeks documents which on their face are irrelevant and likely will not materially assist in the case. There are no relevant limiting criteria in the paragraph. Even taking into account Mr McCulloch's affidavit and the pleadings, the relevant conversations asserted by both REPMS and LJ Hooker only occurred in November and December 2013. The paragraph seeks documents dated or created after 19 November 2013 without imposing any limitation on the subject matter other than the identity of the participants. 6. In my view a paragraph limited to documents "referring to or recording communications between Andrew McCulloch on the one hand and Martin Pettit (whether or not other persons were present or also a party to the communications) on the other hand in November and/or December 2013" would be permissible. 7. In my view this paragraph in its current form should be set aside. Paragraph 3 of the Notice to Produce 1. Paragraph 3 of the Notice to Produce is as follows: "3. All documents relating Diary and other notes, minutes of meetings, reports, memoranda, and emails received or sent by LJH, created or dated between November 2013 and July 2014 inclusive, containing or referring to communications between LJH and Jing Peng concerning an application or prospective potential application by her Jing Peng, or a company associated with her of which Jing Peng was at the time a director, to become an LJH franchisee and/or to operate a real estate business trading as LJ Hooker Gordon, or both to become an LJH franchisee and to operate a real estate business trading as LJ Hooker Gordon, between November 2013 and July 2014 ("potential application" is a reference to a possible future application being considered or discussed by LJH or Jing Peng or both parties, before that application was actually made)." 1. Paragraph 3 relates to, in essence, communications between LJ Hooker and Jing Peng concerning an application or potential application by Jing Peng or a company associated with Jing Peng to become an LJ Hooker franchisee or to operate an LJ Hooker real estate business. The paragraph is complicated and uses the general term "concerning." 2. LJ Hooker submits that the paragraph is objectionable for the following reasons: 1. It calls for documents containing or referring to communications with Jing Peng concerning certain applications or potential applications. It is submitted that these documents have no apparent relevance to the issues in the proceedings and that nothing is pleaded about any application or potential application of the type described in paragraph 3 by Jing Peng or any company associated with her; 2. It calls for documents "concerning" nominated topics and the authorities show that the word "concerning" can be oppressive and be akin to discovery: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [20]; 3. It is additionally oppressive because it calls for documents "concerning" multiple nominated topics relating to Jing Peng; 4. The use of the word "potential" lacks specificity and is oppressive in requiring the recipient to make an assessment as to whether a document falls within that description; 5. The companies of which Jing Peng was a director are not specified; 6. The definition of director includes a "shadow director" and this requires the recipient to form a legal conclusion and is impermissible: see Patonga Beach at [21]; 7. In addition to the difficulties identified, compliance will be burdensome because LJ Hooker employed 152 personnel within the relevant time frame. 1. REPMS submits that the documents are relevant to paragraphs 13, 14 and 14H of the First Cross-Claim in the 2014 proceedings. It is said that there is a real issue in relation to what was said about Jing Peng being under an employee's restraint of trade obligation. If Jing Peng applied for an LJ Hooker franchise or even made an enquiry this would suggest there was a real risk of damage if the restraint of trade limitation did not exist. 2. In my view, the submissions made by LJ Hooker (apart from the oppression point and the "potential application" point) have force. I do not see the apparent relevance to the issues in the proceedings of the documents referred to in paragraph 3 of the Notice to Produce. Further, the Notice to Produce is oppressive and is in wide terms and the use of the word "concerning" in this context creates uncertainty and imposes an unacceptable burden of interpretation. 3. REPMS' case is a no transaction case: but for the misleading and deceptive conduct of North Shore Real Estate it would not have entered into the contract of purchase of the business. A material factor was that certain employees were subject to a restraint of trade. It is said that it was represented Jing Peng was subject to such a restraint whereas really there was no such restraint. In my view REPMS' case does not arguably require the documents sought and they are not potentially relevant. The case can clearly be put and argued without the documents sought. 4. REPMS submitted that later events may be relevant to causation and damages and thus the documents should be produced. In my view in this case the documents are not relevant to causation or damages as it is a no transaction case and thus the claim will not turn on what Jing Peng did later. The matter will turn on an assessment of the witnesses and a review of the documents in their context at the time. 5. Also the use of the expression "a company of which Jing Peng was at the time a director" would require LJ Hooker to undertakes legal searches. 6. I do not think LJ Hooker's "potential application" point should be accepted as the term is defined in the paragraph in acceptable terms. 7. Accordingly, in my view as the documents are not potentially relevant and are not likely to materially assist, paragraph 3 of the Notice to Produce should be set aside. Paragraph 4 of the Notice to Produce 1. Paragraph 4 of the Notice to Produce is as follows: "4. All documents, including Diary and other notes, minutes of meetings, reports, memoranda and emails relating received or sent by LJH referring to meetings between Lauren Kirk on the one hand, and REPMS, Martin Pettit, Fadwa Pettit or Jason Pettit on the other, dated or created between 1 February 2014 and 30 April 2014. employees in or about March 2014." 1. LJ Hooker submits that such documents have no apparent relevance to any identified issues in the proceedings. In particular, it is submitted that they cannot be relevant to the alleged misrepresentation in or about December 2013 by Andrew McCulloch or the alleged deletion of records by Elisha Winterford on 30 January 2015 which is pleaded by REPMS. 2. REPMS relies upon references in affidavits served by the parties to Lauren Kirk who was the Network Performance Manager for LJ Hooker at the time: see the affidavit of Martin Pettit sworn on 22 March 2016 at [6] and the affidavit of Christine To sworn on 4 February 2016 at [8]. 3. The issue relates to alleged advertising fees owed to LJ Hooker. 4. The relevant pleadings show that LJ Hooker alleges a collateral agreement in a meeting in or about May 2014 and confirmed by a 2 May 2014 email. 5. I cannot see the apparent relevance of the documents sought to the issues in dispute in the proceedings. I cannot see how it is on the cards that such documents will be apparently relevant to the issues in dispute. 6. The documents sought are for a period prior to the agreement which is alleged by LJ Hooker and denied by REPMS. The paragraph is not limited by way of subject matter. If it was so limited REPMS' argument would be stronger. 7. I set aside paragraph 4 of the Notice to Produce. Paragraph 6 of the Notice to Produce 1. Paragraph 6 of the Notice to Produce is as follows: 6. Emails, minutes and all other documents produced or received by LJH employees relating to the surrender of David Johnson's licence on 2 September 2011 and its cancellation on 25 October 2012. 6. Emails received or sent by LJH, memoranda, reports, diary and other notes, and minutes of director's meetings, dated or created between 1 August 2011 and 31 December 2014 referring to: a. the termination or potential termination of the franchise agreement with Johnson Prestige Realty Lindfield Pty Ltd ("potential termination" is a reference to the possible termination of the franchise agreement, before it was actually terminated); b. the closure or potential closure of the business operated by Johnson Prestige Realty Lindfield Pty Ltd and trading as LJ Hooker Lindfield ("potential closure" is a reference to the possible closure of the business, prior to its actual closure); c. the surrender of David Johnson's licence on 2 September 2011; d. the cancellation David Johnson's licence on 25 October 2012; and e. the sentencing of David Johnson and associated publicity during 2014. 1. Paragraph 6 of the Notice to Produce relates to LJ Hooker documents dated or created between 1 August 2011 and 31 December 2014 referring to the closure or potential closure of the LJ Hooker Lindfield business and the surrender and cancellation of David Johnson's real estate licence and other matters. 2. LJ Hooker submits that paragraph 6 is objectionable on the following grounds: 1. The use of the "potential" in the paragraph lacks specificity and is oppressive in requiring the recipient to make an assessment as to whether a document falls within that description; 2. The documents cannot materially assist REPMS' case in relation to any alleged misrepresentation in about December 2013 by Andrew McCulloch or any alleged deletion of records by Elisha Winterford on 30 January 2015; 3. In addition to the difficulties stated, compliance will be burdensome because of the number of LJ Hooker employees in the relevant time frame. 1. REPMS submits that the documents are very relevant to the misleading and deceptive conduct case against LJ Hooker and also refers to the particulars to paragraph 15(b) and 16(b) of the First Cross-Claim in the 2014 proceedings. 2. In my view in the light of the relevant pleadings, the paragraph seeks documents which are potentially relevant and which are on the cards to materially assist REPMS. 3. I do not consider that the use of the word "potential" lacks specificity and is oppressive as submitted by LJ Hooker because it is defined within paragraph 6 as being a reference to the "possible termination of the franchise agreement, before it was actually terminated". 4. The documents appear to be relevant to REPMS' misleading and deceptive conduct case pleaded in paragraphs 15(b) and 23-24 of the 26 November 2015 Cross-Claim as they are relevant to what in fact were the reasons behind the closure of the LJ Hooker office, what LJ Hooker knew of it and knowledge as to the effect of the closure. 5. The documents sought are limited in subject matter and date. 6. I do not think the oppression point has any substance: searches could readily be made in relation to documents referring to David Johnson and his company for the stated period. 7. Accordingly, I would not set aside paragraph 6 of the Notice to Produce. Paragraph 8 of the Notice to Produce 1. Paragraph 8 of the Notice to Produce is as follows: "8. All documents including electronic Electronic logs, screen printouts, computer records, emails and reports, evidencing or relating recording or referring to REPMS' usage or non-usage of the LJH E2 system, created or dated between 3 February 2014 and 20 February 2015." 1. This paragraph of the Notice to Produce is no longer pressed by REPMS. Paragraphs 9, 9A, 10, 12 and 13 1. Paragraphs 9, 9A, 10, 12 and 13 of the Notice to Produce are as follows: "9. All documents include emails, Emails received or sent by LJH, diary records, electronic diary records, diary and other notes, and car log books relating, dated or created between February 2014 and February 2015 inclusive, recording or referring to onsite visits and/or arrangements made in relation to_proposed onsite visits by LJH staff engaged in: a. computer support, b. computer operations, and/or c. training, and related fields d. computer support and computer operations, e. computer support and training, f. computer operations and training, or g. computer support, computer operations and training, to the premises occupied by REPMS trading as LJ Hooker Lindfield between February 2014 and February 2015 inclusive, 9A. Emails received or sent bv LJH, diary records, electronic diary records, diary and other notes, and car log books, dated or created between February 2014 and February 2015 inclusive, recording or referring to proposed onsite visits by LJH staff engaged in: a. computer support, b. computer operations, c. training, d. computer support and computer operations, e. computer support and training, f. computer operations and training, or g. computer support, computer operations and training, to the premises occupied by REPMS trading as LJ Hooker Lindfield between February 2014 and February 2015 inclusive. 10. All documents relating Emails received or sent by LJH, diary and other notes, memoranda, reports, and complaint logs, dated or created between 3 February 2014 and 20 February 2015, recording or referring to or evidencing complaints made by or on behalf of REPMS, Martin Pettit, Fadwa Pettit or Jason Pettit to Alexandra Hainsworth, Andrew McCulloch, Kylie Walsh, Lauren Kirk or David Colman between February 2014 and February 2015 inclusive. 12. All documents, including internal emails, Emails received or sent by LJH between 1 June 2014 and 31 December 2014, diary and other notes, memoranda, reports, and minutes of meetings relating created or dated between 1 June 2014 and 31 December 2014 recording or referring to the issue of a Breach Notice a notice pursuant to clause 16.2(1) of the Franchise Agreement entered into by LJH and REPMS and executed by LJH on 21 January 2014, by LJH to REPMS on or about 17 during September 2014 13. All documents, including internal-emails and Emails received or sent by LJH, diary and other notes, relating memoranda and reports, dated or created between 1 February 2016 and 30 June 2016, recording or referring to the email from David Colman to Martin Pettit annexed as Annexure "I" to the affidavit of Christine To dated 29 February 2016" 1. REPMS no longer presses these paragraphs of the Notice to Produce. Paragraphs 14 and 14A of the Notice to Produce 1. In the Notice of Motion, LJ Hooker sought to set aside paragraph 14A of the Notice to Produce. In oral submissions it was clarified that paragraph 14A of the Notice to Produce was not challenged. However, paragraph 14a of the Notice to Produce was challenged. 2. Paragraph 14a of the Notice to Produce is in the following terms: "14. All documents, including SMS text messages emails received or sent by LJH, memoranda, reports, diary and other notes, minutes of meetings internal emails and diary notes, and records of telephone conversations, dated or created between 29 January 2015 and 30 June 2015, relating referring to: a. the visit of Elisha Winterford to the premises occupied by REPMS on 30 January 2015; and/or" 1. There were no written submissions from LJ Hooker in relation to paragraph 14a. 2. In his oral submissions, counsel for LJ Hooker submitted that the paragraph was in wide terms and sought documents between 29 January 2015 and 30 June 2015 concerning the visit of Ms Winterford to the premises of REPMS and that this had no connection to any alleged deletion by Ms Winterford of documents. 3. Counsel for REPMS submitted as follows: 1. The Cross-Claim in the Watercorp proceedings at paragraphs [51]-[59] pleaded against LJ Hooker causes of action in trespass and negligence for deletion of records; 2. The Defence of LJ Hooker filed 23 September 2016 admitted Ms Winterford turned up at the relevant premises and uninstalled LJ Hooker software but claimed that no records were deleted; 3. It was "on the cards" that the documents sought in paragraph 14a of the Notice to Produce could add to the relevant material relating to the question of whether material was deleted. 1. In my view: 1. The documents sought in the paragraph are clearly specified; 2. The date range for the documents sought is clearly specified being the period 29 January 2015 to 30 June 2015; 3. The connecting word of "referring" is used which is limiting; 4. The subject matter is the visit of Ms Winterford to the premises occupied by REPMS on 30 January 2015. 1. In my opinion there is a reasonable basis beyond speculation but less than more likely than not that the documents sought are potentially relevant and will materially assist REPMS' case within paragraphs [21]-[25] of ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. The narrowness of the documents sought in the light of the issues in the pleadings establishes that the category of documents provides some concrete ground for belief which takes the case beyond a mere fishing expedition. 2. I would allow paragraph 14a of the Notice to Produce and would decline to set it aside. Paragraph 15 of the Notice to Produce 1. Paragraph 15 of the Notice to Produce is in the following terms: "15. All communications, including emails, Emails and letters between LJH on the one hand, and Nexus Estate Agents, Leonard Resnekov, Stephen Hankins, and/or North Shore Real Estate Pty Ltd on the other, dated or created between 1 September 2011 and 22 December 2011 in relation referring to: a. the negotiation and formation of a franchise agreement between LJH and North Shore Real Estate Pty Ltd and/or b. The commencement or continuation of an LJH franchise to operate under the business name "LJ Hooker Lindfield" NOTE: For your assistance in retrieving documents falling within this paragraph, note that this This item includes but is not limited to email communications received and/or sent by (a) Rebecca Narayan on behalf of LJH; (b) xx@xxx; and (c) xx@xxx NOTE: In this Notice to Produce, the words "emails received or sent by LJH" are to be construed as including emails received and sent by LJH, that is, internal LJH emails being emails both sent and received by officers, employees or contractors of LJH." 1. LJ Hooker submits that paragraph 15 calls for documents relating to events which occurred more than two years prior to the alleged misleading conduct which is pleaded against it. It also asserts that it calls for documents referring to negotiations involving parties other than REPMS. It is claimed that the documents cannot assist materially REPMS on any identified issue in the proceedings. 2. Counsel for REPMS submitted: 1. It is claimed in paragraph 15 of the Cross-Claim filed on 26 November 2015 that North Shore Real Estate was aware of relevant matters during the negotiation of the sale to REPMS: see paragraph 15(b); 2. It is denied by North Shore Real Estate that it was aware of the matters set out in paragraph 15(b) of the Cross Claim in paragraph 15 of its Defence to Cross-Claim; 3. Documents annexed to the affidavit of Mr Hamwood sworn 21 October 2016 show that LJ Hooker was aware of issues relating to problems in the LJ Hooker Pymble franchise owned by Mr Johnson in 2011: see pages 42, 44, 46 and 48 of the annexures to the affidavit; 4. It was thus on the cards that the documents would be relevant to North Shore Real Estate's knowledge. 1. In interaction with the Bench it was established that the real issues that REPMS was concerned about was: 1. The knowledge of North Shore Real Estate and LJ Hooker of the David Johnson issue in 2011; and 2. The alleged granting of a nine month franchise fee "holiday" to North Shore Real Estate in 2011 which artificially inflated its earnings for that period. 1. Having identified the real issues which paragraph 15 in the Notice to Produce was directed at, in my opinion the category of documents in paragraph 15 is far too wide. It essentially amounts to a general request for documents on a topic in circumstances where documents relating to only two issues are sought. It seeks a large amount of documents in the relevant period referring to the negotiation of the new franchise/LJ Hooker business. Many of these documents will likely be irrelevant. In my view it is objectionable on that basis and amounts to a trawling exercise. The paragraph needs to be far more focussed. 2. Paragraph 15 accordingly is too wide, seeks documents which are not apparently relevant to any issue and should be set aside. Orders 1. Accordingly, it may be seen that the court considers it should set aside paragraphs 2, 3, 4 and 15 of the Notice to Produce and excuse LJ Hooker from compliance with those paragraphs. 2. The court declines to set aside paragraphs 6 and 14a of the Notice to Produce. 3. In relation to costs, the parties have each had a degree of success in relation to the orders which they have sought. I think it best in those circumstances that I hear submissions in relation to the appropriate order for costs. 4. I accordingly make the following orders: 1. Paragraphs 2, 3, 4 and 15 of the Notice to Produce dated and filed on 7 October 2016 are set aside and LJ Hooker is excused from compliance with those paragraphs; 2. Paragraphs 1 and 2 of the Notice of Motion filed 24 October 2016 are otherwise dismissed; 3. The court will hear the parties in relation to the costs of the Notice of Motion. ********** 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: 17 March 2017