Forty Two International Pty Limited v Barnes (No 2) [2011] FCA 210

Forty Two International Pty Limited v Barnes (No 2) [2011] FCA 210

Discovery of documents evidencing disbursement of moneys by respondents is warranted as it informs the applicants' election between remedies and is not sought for an improper collateral purpose. Discovery sought by respondents for categories relating to business changes in the applicants is refused, as it is speculative and not sufficiently articulated in the pleadings.

Parties
First Applicant: Forty Two International Pty Limited ACN 095 622 889; Second Applicant: Bluefreeway Limited ACN 122 262 819; Third Applicant: The Gang of 4 Pty Limited ACN 095 624 678; First Respondent: Kim Barnes; Second Respondent: Lee Hawksley
Jurisdiction
Australia
Judgment Date
11 March 2011
Procedural Posture
Application for Discovery of Documents / Interlocutory Motion: Orders on Discovery Issues
Outcome
Discovery ordered as indicated: respondents to provide discovery in respect of applicants' category (including tracing disbursements); respondents' motion for further discovery refused.
Legal Topics
Discovery, Directors' Duties, Misleading or Deceptive Conduct, Account of Profits, Damages, Pleadings Relevance
Practice and Procedure Corporations Law Contract Law Equity Discovery Directors' Duties Misleading or Deceptive Conduct Account of Profits +2 more

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Parties

Forty Two International Pty Limited ACN 095 622 889

First Applicant

Bluefreeway Limited ACN 122 262 819

Second Applicant

The Gang of 4 Pty Limited ACN 095 624 678

Third Applicant

Kim Barnes

First Respondent

Lee Hawksley

Second Respondent

Procedural Posture

Application for Discovery of Documents / Interlocutory Motion: Orders on Discovery Issues

Legal Issues

  1. 1 Whether discovery is required to inform an election between remedies
  2. 2 Whether contemplation of joining additional parties indicates a collateral or improper purpose for seeking discovery
  3. 3 Whether proper basis is established for discovery based on pleadings or speculative matters

Ratio Decidendi

Discovery of documents evidencing disbursement of moneys by respondents is warranted as it informs the applicants' election between remedies and is not sought for an improper collateral purpose. Discovery sought by respondents for categories relating to business changes in the applicants is refused, as it is speculative and not sufficiently articulated in the pleadings.

Court Disposition

Discovery ordered as indicated: respondents to provide discovery in respect of applicants' category (including tracing disbursements); respondents' motion for further discovery refused.

Orders

  • By no later than 4.00 pm on 14 March 2011 the parties are to submit to my Associate a draft of the orders they propose to give effect to these reasons.
  • The parties have leave to make submissions in writing on the question of costs, provided those submissions are no more than two pages in length and are delivered to my Associate by no later than 4.00 pm on 14 March 2011.