Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 3) [2024] NSWSC 163

Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 3) [2024] NSWSC 163

The motion was dismissed because MWP did not discharge its onus to show that the requested discovery was necessary for the resolution of the real issues. The categories were framed too broadly, frequently assumed the existence and scope of the alleged Temujin Partnership despite that being a principal issue, were not supported by pleaded material facts or adequate evidence, and in relation to alleged assets, third party entities, tracing and an account were premature or lacked an arguable foundation.

Jurisdiction
Australia
Judgment Date
28 February 2024
Procedural Posture
Civil Procedure Discovery Application in the Equity Division Commercial List / Notice of Motion Dated 2 February 2024 Seeking Discovery Before Service of Evidence
Outcome
The plaintiff's motion dated 2 February 2024 was dismissed with costs.
Legal Topics
['discovery' 'general Discovery' 'disclosure Before Evidence' 'practice Note SC Eq 11' 'exceptional Circumstances' 'particularisation of Pleadings' 'tracing and Accounting']
['civil Procedure' 'equity' 'partnership'] ['discovery' 'general Discovery' 'disclosure Before Evidence' 'practice Note SC Eq 11' 'exceptional Circumstances' 'particularisation of Pleadings' 'tracing and Accounting']

Case Brief

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Procedural Posture

Civil Procedure Discovery Application in the Equity Division Commercial List / Notice of Motion Dated 2 February 2024 Seeking Discovery Before Service of Evidence

Legal Issues

  1. 1 ['Whether exceptional circumstances warranted disclosure before evidence was exchanged under Practice Note SC Eq 11 Disclosure in the Equity Division.' 'Whether the discovery categories sought by the plaintiff were necessary for the resolution of the real issues in dispute.' 'Whether the plaintiff was entitled to broad discovery where the categories assumed the existence of the alleged Temujin Partnership, which was itself a principal issue in dispute.' 'Whether discovery concerning alleged partnership assets, third party entities, real property, tracing, and an account was premature or unsupported.' "Whether discovery concerning the defendant's involvement in NSW1 and ACT proceedings should be ordered before evidence."]

Ratio Decidendi

The motion was dismissed because MWP did not discharge its onus to show that the requested discovery was necessary for the resolution of the real issues. The categories were framed too broadly, frequently assumed the existence and scope of the alleged Temujin Partnership despite that being a principal issue, were not supported by pleaded material facts or adequate evidence, and in relation to alleged assets, third party entities, tracing and an account were premature or lacked an arguable foundation.

Court Disposition

The plaintiff's motion dated 2 February 2024 was dismissed with costs.

Orders

  • ["The plaintiff's motion dated 2 February 2024 be dismissed with costs." 'The matter is stood over for directions on 1 March 2024.']