The Good Living Company Pty Limited atf The Warren Duncan Trust No. 3 v Kingsmede Pty Limited [2017] NSWSC 641

The Good Living Company Pty Limited atf The Warren Duncan Trust No. 3 v Kingsmede Pty Limited [2017] NSWSC 641

The plaintiffs satisfied the requirements for preliminary discovery under UCPR Pt 5 r 5.3(1) because there is sufficient basis to infer that they may be entitled to make a claim for relief for unconscionable conduct under the Australian Consumer Law regarding the defendants' call on the bank guarantee, and the evidentiary material justifying the call is solely within the defendants' knowledge.

Parties
First Plaintiff: The Good Living Company Pty Limited atf The Warren Duncan Trust No. 3; Second Plaintiff: Kimana Pty Ltd; First Defendant: Kingsmede Pty Limited; Second Defendant: Pamiers Pty Ltd
Jurisdiction
Australia
Judgment Date
18 May 2017
Procedural Posture
Application for Preliminary Discovery / Hearing and Orders Made
Outcome
Plaintiffs' application for preliminary discovery granted; costs orders made.
Legal Topics
Preliminary Discovery, Unconscionability, Uniform Civil Procedure Rules 2005 (nsw) Pt 5 R 5.3(1), Australian Consumer Law 2010 (cth) S 20(1) and S 236
Practice and Procedure Preliminary Discovery Unconscionability Uniform Civil Procedure Rules 2005 (nsw) Pt 5 R 5.3(1) Australian Consumer Law 2010 (cth) S 20(1) and S 236

Case Brief

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Parties

The Good Living Company Pty Limited atf The Warren Duncan Trust No. 3

First Plaintiff

Kimana Pty Ltd

Second Plaintiff

Kingsmede Pty Limited

First Defendant

Pamiers Pty Ltd

Second Defendant

Procedural Posture

Application for Preliminary Discovery / Hearing and Orders Made

Legal Issues

  1. 1 Whether plaintiffs may be entitled to make a claim for relief against defendants under s 20(1) and s 236 of the Australian Consumer Law 2010 (Cth) for unconscionable conduct
  2. 2 Whether the requirements for preliminary discovery under UCPR Pt 5 r 5.3(1) are satisfied

Ratio Decidendi

The plaintiffs satisfied the requirements for preliminary discovery under UCPR Pt 5 r 5.3(1) because there is sufficient basis to infer that they may be entitled to make a claim for relief for unconscionable conduct under the Australian Consumer Law regarding the defendants' call on the bank guarantee, and the evidentiary material justifying the call is solely within the defendants' knowledge.

Court Disposition

Plaintiffs' application for preliminary discovery granted; costs orders made.

Orders

  • Within ten days, the defendants must give discovery to the plaintiffs of all documents that are or have been in their possession and relate to whether or not the plaintiffs are entitled to make a claim for relief.
  • The defendants are to pay the plaintiffs' costs of these proceedings in the amount of and capped at $10,000.