Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883

Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883

Although it was conceivable that the plaintiff may have claims against both defendants, the plaintiff's own solicitors' letters stated that the plaintiff had been advised it was entitled to commence proceedings against each defendant. Those letters showed that the plaintiff was not unable to obtain sufficient information to decide whether to commence proceedings, so the threshold requirement in rule 5.3(1)(a) was not satisfied.

Jurisdiction
Australia
Judgment Date
29 August 2008
Procedural Posture
Application for Preliminary Discovery Under Rule 5.3 of the Uniform Civil Procedure Rules 2005 / Summons Filed on 11 July 2008 Heard on 13 August 2008; Judgment on Application for Preliminary Discovery
Outcome
Preliminary discovery refused; application dismissed with costs.
Legal Topics
['preliminary Discovery' 'discovery From Prospective Defendant' 'sufficient Information to Decide Whether to Commence Proceedings']
['civil Procedure'] ['preliminary Discovery' 'discovery From Prospective Defendant' 'sufficient Information to Decide Whether to Commence Proceedings']

Case Brief

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Procedural Posture

Application for Preliminary Discovery Under Rule 5.3 of the Uniform Civil Procedure Rules 2005 / Summons Filed on 11 July 2008 Heard on 13 August 2008; Judgment on Application for Preliminary Discovery

Legal Issues

  1. 1 ['Whether the plaintiff may be entitled to make a claim for relief against each defendant.' 'Whether the plaintiff, having made reasonable inquiries, was unable to obtain sufficient information to decide whether or not to commence proceedings against each defendant.' "Whether the plaintiff's solicitors' letters of 8 February 2008 showed that the plaintiff had already decided to commence proceedings."]

Ratio Decidendi

Although it was conceivable that the plaintiff may have claims against both defendants, the plaintiff's own solicitors' letters stated that the plaintiff had been advised it was entitled to commence proceedings against each defendant. Those letters showed that the plaintiff was not unable to obtain sufficient information to decide whether to commence proceedings, so the threshold requirement in rule 5.3(1)(a) was not satisfied.

Court Disposition

Preliminary discovery refused; application dismissed with costs.

Orders

  • ['The application under rule 5.3 in relation to each defendant is dismissed with costs.']