Collective Concepts Pty Ltd v SMC Gasworks Pty Ltd [2019] NSWSC 789

Collective Concepts Pty Ltd v SMC Gasworks Pty Ltd [2019] NSWSC 789

Collective Concepts had shown a reasonable basis to believe it may have claims for breach of warranty or misleading and deceptive conduct and lacked sufficient information to decide whether to sue. Financial statements, sales data, POS documents, tax returns, bank statements and employee records of the Business were reasonably capable of assisting that decision. Discovery of records for the market stall and food truck was refused because those operations were owned by another company, their separate records were unlikely to shed light on revenue attributed to the Business, and the suggestion that their revenue inflated the Business revenue was speculation.

Jurisdiction
Australia
Judgment Date
27 June 2019
Procedural Posture
Application for Preliminary Discovery Under R 5.3 of the Uniform Civil Procedure Rules 2005 (nsw) / Principal Judgment
Outcome
Application for preliminary discovery substantially granted; discovery ordered for specified Business records, but not for the market stall and food truck category; costs orders made.
Legal Topics
['preliminary Discovery' 'whether to Commence Proceedings' 'breach of Warranty' 'misleading and Deceptive Conduct' 'business Sale Agreement' 'costs']
['civil Procedure' 'equity Commercial List' 'consumer Law'] ['preliminary Discovery' 'whether to Commence Proceedings' 'breach of Warranty' 'misleading and Deceptive Conduct' 'business Sale Agreement' 'costs']

Case Brief

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Procedural Posture

Application for Preliminary Discovery Under R 5.3 of the Uniform Civil Procedure Rules 2005 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether Collective Concepts may be entitled to make a claim for relief against the defendants for breach of warranty or misleading and deceptive conduct arising from the sale of the Business.' 'Whether Collective Concepts had made reasonable inquiries but remained unable to obtain sufficient information to decide whether to commence proceedings.' 'Whether the documents sought would assist Collective Concepts to decide whether it was entitled to make such a claim for relief.' 'Whether discovery should extend to records of the market stall and food truck operated by another company.' 'Whether employee records should be discovered in relation to a possible underpayment of staff.']

Ratio Decidendi

Collective Concepts had shown a reasonable basis to believe it may have claims for breach of warranty or misleading and deceptive conduct and lacked sufficient information to decide whether to sue. Financial statements, sales data, POS documents, tax returns, bank statements and employee records of the Business were reasonably capable of assisting that decision. Discovery of records for the market stall and food truck was refused because those operations were owned by another company, their separate records were unlikely to shed light on revenue attributed to the Business, and the suggestion that their revenue inflated the Business revenue was speculation.

Court Disposition

Application for preliminary discovery substantially granted; discovery ordered for specified Business records, but not for the market stall and food truck category; costs orders made.

Orders

  • ["Within 28 days of today's date the defendants give discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) of specified documents in their possession, power, custody or control relating to the business carried on by the first defendant at Tenancy 3B, 63 Skyring Terrace, Newstead, Queensland."...