Commonwealth Bank of Australia v Daleport Pty Limited (in receivership) (No 2) [2015] NSWSC 1746

Commonwealth Bank of Australia v Daleport Pty Limited (in receivership) (No 2) [2015] NSWSC 1746

In determining the terms of reference for a court-appointed expert regarding the scope and necessity of further document disclosure, it is appropriate to direct the expert to opine on the relevance of additional documents sought by the defendant to the pleaded issue (alleged unwillingness or inability of the bank to lend due to funding shortages), and the need to see such documents to determine the issue, while informing the expert of the overriding procedural purpose. The ultimate question of necessity for disclosure remains for the Court's determination.

Parties
Plaintiff: Commonwealth Bank of Australia; First Defendant: Daleport Pty Ltd (in Receivership); Second Defendant: Alexander Raymond Walton
Jurisdiction
Australia
Judgment Date
23 November 2015
Procedural Posture
Interlocutory Ruling / Orders Relating to Court Appointed Expert on Discovery Motion
Outcome
Orders made as proposed for terms of reference to court-appointed expert regarding discovery scope; parties invited to seek further hearing if required.
Legal Topics
Discovery of Documents, Appointment of Court Expert, Scope of Discovery, Misleading or Deceptive Conduct
Civil Procedure Discovery of Documents Appointment of Court Expert Scope of Discovery Misleading or Deceptive Conduct

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Parties

Commonwealth Bank of Australia

Plaintiff

Daleport Pty Ltd (in Receivership)

First Defendant

Alexander Raymond Walton

Second Defendant

Procedural Posture

Interlocutory Ruling / Orders Relating to Court Appointed Expert on Discovery Motion

Legal Issues

  1. 1 What should be the appropriate terms of reference for the court-appointed expert in relation to bank's financial capacity and discovery scope?
  2. 2 Should the issue of necessity for disclosure be determined by the Court or embedded in the expert’s terms?
  3. 3 How should the fact in issue regarding the bank's alleged lack of funds be articulated for the expert's consideration?

Ratio Decidendi

In determining the terms of reference for a court-appointed expert regarding the scope and necessity of further document disclosure, it is appropriate to direct the expert to opine on the relevance of additional documents sought by the defendant to the pleaded issue (alleged unwillingness or inability of the bank to lend due to funding shortages), and the need to see such documents to determine the issue, while informing the expert of the overriding procedural purpose. The ultimate question of necessity for disclosure remains for the Court's determination.

Court Disposition

Orders made as proposed for terms of reference to court-appointed expert regarding discovery scope; parties invited to seek further hearing if required.

Orders

  • Court to appoint expert with terms: to advise on the relevance to the pleaded fact in issue (regarding bank/HBOS funding capacity) of additional documents sought by Daleport and the need to see such documents to determine the issue, with reference to the overriding purpose of the Civil Procedure Act 2005 (NSW).