Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2023] FCA 905

Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2023] FCA 905

The affidavit did not expressly mention any document titled "Project Sea Dragon: November Monthly Review" or "Project Sea Dragon: December Monthly Review". The general reference to "weekly and monthly progress reports" did not clearly allude to written documents or to a class including those reports, and the use of different descriptors in paragraph 14 did not remove that uncertainty. Because r 20.31 requires a direct allusion in the pleading or affidavit itself, not implication or inference, the documents were not mentioned within r 20.31(1).

Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Practice and Procedure; Production of Documents Mentioned in Affidavit Under R 20.31 of the Federal Court Rules 2011 (cth) / Interlocutory Application Filed 31 July 2023
Outcome
Although the reasons concluded that the interlocutory application filed on 31 July 2023 must be dismissed, the matter was resolved by consent before judgment was delivered and orders were made for production, with costs reserved.
Legal Topics
['production of Documents' 'notice to Produce' 'documents Mentioned in Pleadings or Affidavits' 'federal Court Rules 2011 (cth) R 20.31' 'deed of Company Arrangement']
['practice and Procedure' 'corporations and Corporate Insolvency'] ['production of Documents' 'notice to Produce' 'documents Mentioned in Pleadings or Affidavits' 'federal Court Rules 2011 (cth) R 20.31' 'deed of Company Arrangement']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure; Production of Documents Mentioned in Affidavit Under R 20.31 of the Federal Court Rules 2011 (cth) / Interlocutory Application Filed 31 July 2023

Legal Issues

  1. 1 ['Whether the report styled "Project Sea Dragon: November Monthly Review" was mentioned in Mr Cavanagh\'s affidavit within the meaning of r 20.31(1) of the Federal Court Rules 2011 (Cth).' 'Whether the report styled "Project Sea Dragon: December Monthly Review" was mentioned in Mr Cavanagh\'s affidavit within the meaning of r 20.31(1) of the Federal Court Rules 2011 (Cth).' 'Whether a general reference to receiving weekly and monthly progress reports amounted to a direct allusion to the specific documents sought.']

Ratio Decidendi

The affidavit did not expressly mention any document titled "Project Sea Dragon: November Monthly Review" or "Project Sea Dragon: December Monthly Review". The general reference to "weekly and monthly progress reports" did not clearly allude to written documents or to a class including those reports, and the use of different descriptors in paragraph 14 did not remove that uncertainty. Because r 20.31 requires a direct allusion in the pleading or affidavit itself, not implication or inference, the documents were not mentioned within r 20.31(1).

Court Disposition

Although the reasons concluded that the interlocutory application filed on 31 July 2023 must be dismissed, the matter was resolved by consent before judgment was delivered and orders were made for production, with costs reserved.

Orders

  • ["The plaintiff produce forthwith to the first and third defendants the documents described at paragraph 1(a) and (b) of the first and third defendants' application filed 31 July 2023." 'The costs of the application be reserved.']