Lisec Australia Pty Ltd and Saremach Pty Ltd v Lisec Australia [2015] NSWSC 365

Lisec Australia Pty Ltd and Saremach Pty Ltd v Lisec Australia [2015] NSWSC 365

An interim preservation order was justified because the BAZ Waterjet was the property at the centre of the proceedings, its movement or dismantling could prejudice the ability to diagnose its condition and obtain expert evidence, and the parties needed a fair but limited period to prepare evidence. Preservation until 20 April 2015 was unreasonably short, but preservation until trial was unreasonably long; an order until 31 May 2015, with directions for data provision, discovery steps, and exchange of lay and expert evidence, best balanced the parties' interests.

Jurisdiction
Australia
Judgment Date
31 March 2015
Procedural Posture
Civil Commercial Proceedings Concerning the Supply of Complex Machinery / Interlocutory Application for Interim Preservation Order and Procedural Directions
Outcome
Interim preservation order granted until 31 May 2015 and ancillary procedural directions made; costs of the application costs in the cause.
Legal Topics
['interim Preservation Order' 'preservation of Property' 'discovery' 'expert Evidence' 'case Management' 'supply of Machinery']
['civil Procedure' 'commercial Law' 'contract Law'] ['interim Preservation Order' 'preservation of Property' 'discovery' 'expert Evidence' 'case Management' 'supply of Machinery']

Case Brief

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Procedural Posture

Civil Commercial Proceedings Concerning the Supply of Complex Machinery / Interlocutory Application for Interim Preservation Order and Procedural Directions

Legal Issues

  1. 1 ['Whether an interim preservation order should be made under r 25.3 of the Uniform Civil Procedure Rules 2005 (NSW) to prevent alteration, disassembly, movement or interference with the BAZ Waterjet machinery.' "If a preservation order should be made, what duration would fairly accommodate Lisec's need to obtain evidence and the FGS Group's business inconvenience." 'Whether Lisec should provide the data downloaded from the BAZ machine to FGS.' 'Whether discovery and the timetable for lay and expert evidence should be addressed before completion of evidence exchange.']

Ratio Decidendi

An interim preservation order was justified because the BAZ Waterjet was the property at the centre of the proceedings, its movement or dismantling could prejudice the ability to diagnose its condition and obtain expert evidence, and the parties needed a fair but limited period to prepare evidence. Preservation until 20 April 2015 was unreasonably short, but preservation until trial was unreasonably long; an order until 31 May 2015, with directions for data provision, discovery steps, and exchange of lay and expert evidence, best balanced the parties' interests.

Court Disposition

Interim preservation order granted until 31 May 2015 and ancillary procedural directions made; costs of the application costs in the cause.

Orders

  • ['On Lisec Australia Pty Limited giving the usual undertaking as to damages, under r 25.3 Uniform Civil Procedure Rules 2005 (NSW), Saremach Pty Limited, Core Toughened Pty Limited and Feathers Glazing Systems Pty Limited by themselves or by their employees or agents or otherwise may not do any act or take any step...