Built NSW Pty Limited v Nique Enterprises Pty Limited [2014] NSWSC 679

Built NSW Pty Limited v Nique Enterprises Pty Limited [2014] NSWSC 679

Built NSW was entitled to preliminary discovery. It had made unsuccessful reasonable inquiries of the liquidators and respondents' solicitors, the respondents were likely to have the relevant documents, and production would not be onerous. Built NSW had an arguable basis to join the new trustee because it may be subrogated to Nique Enterprises' right to indemnity from trust assets. It also needed the trust deed to decide whether there was a term limiting or denying Nique Enterprises' indemnity and therefore whether to join Ms Monique Bihari and Ms Judith Bihari under s 197 of the Corporations Act 2001 (Cth).

Jurisdiction
Australia
Judgment Date
29 May 2014
Procedural Posture
Civil Proceedings in the Technology and Construction List Involving Breach of Subcontract and Preliminary Discovery / Interlocutory Amended Notice of Motion for Preliminary Discovery Under UCPR Rr 5.2 and 5.3
Outcome
Built NSW substantially succeeded on the amended notice of motion for preliminary discovery, and the respondents were ordered to pay the plaintiff's costs in relation to paragraph 3 of the motion.
Legal Topics
['preliminary Discovery' 'discovery of Documents From Prospective Defendant' 'discovery to Ascertain Identity of Prospective Defendant' "trustee's Right of Indemnity" "trust Creditors' Subrogation to Trustee's Indemnity" 'director Liability for Corporate Trustee Under S 197 of the Corporations Act 2001 (cth)' 'misleading or Deceptive Conduct']
['civil Procedure' 'trusts' 'corporations Law' 'australian Consumer Law' 'construction Law'] ['preliminary Discovery' 'discovery of Documents From Prospective Defendant' 'discovery to Ascertain Identity of Prospective Defendant' "trustee's Right of Indemnity" "trust Creditors' Subrogation to Trustee's Indemnity" 'director Liability for Corporate Trustee Under S 197 of the Corporations Act 2001 (cth)' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Civil Proceedings in the Technology and Construction List Involving Breach of Subcontract and Preliminary Discovery / Interlocutory Amended Notice of Motion for Preliminary Discovery Under UCPR Rr 5.2 and 5.3

Legal Issues

  1. 1 ['Whether preliminary discovery should be ordered under UCPR r 5.2 to identify the current trustee of the WT Bihari Family Trust.' "Whether Built NSW had an apparently sustainable or arguable basis for joining the new trustee to pursue subrogation to Nique Enterprises' right of indemnity against trust assets." 'Whether preliminary discovery should be ordered under UCPR r 5.3 for the trust deed to determine whether to commence proceedings against Ms Monique Tracey Bihari and Ms Judith Bihari under s 197 of the Corporations Act 2001 (Cth).' 'Whether Built NSW had made reasonable inquiries to obtain the information and documents sought.']

Ratio Decidendi

Built NSW was entitled to preliminary discovery. It had made unsuccessful reasonable inquiries of the liquidators and respondents' solicitors, the respondents were likely to have the relevant documents, and production would not be onerous. Built NSW had an arguable basis to join the new trustee because it may be subrogated to Nique Enterprises' right to indemnity from trust assets. It also needed the trust deed to decide whether there was a term limiting or denying Nique Enterprises' indemnity and therefore whether to join Ms Monique Bihari and Ms Judith Bihari under s 197 of the Corporations Act 2001 (Cth).

Court Disposition

Built NSW substantially succeeded on the amended notice of motion for preliminary discovery, and the respondents were ordered to pay the plaintiff's costs in relation to paragraph 3 of the motion.

Orders

  • ['Pursuant to UCPR r 5.2, the second defendant, Ms Monique Tracey Bihari and Ms Judith Bihari give preliminary discovery of any document which evidences the current trustee of the WT Bihari Family Trust.' 'Pursuant to UCPR r 5.3, Ms Monique Tracey Bihari and Ms Judith Bihari give preliminary discovery of any trust...