Commonwealth Bank of Australia v Iinvest Pty Limited (in liquidation) (No 8) [2017] NSWSC 401

Commonwealth Bank of Australia v Iinvest Pty Limited (in liquidation) (No 8) [2017] NSWSC 401

The cross-claimants were refused leave to further amend their cross-claim as the proposed amendments were embarrassing, expressed in overly general terms, and did not fairly arise from new evidence (emails) produced. The court ruled against broad production of the bank's whole 'file' and the entire pst email file, except for emails relating to Iinvest facilities between 1 January 2008 and the date of the notice of default in 2012, which were to be produced. Costs were awarded in the bank's favour as it was substantially successful on the contested interlocutory issues.

Parties
Applicant: James Harker-Mortlock; Second Applicant: J H M Pty Ltd; First Respondent: Iinvest Pty Ltd (in liquidation); Second Respondent: Commonwealth Bank of Australia
Jurisdiction
Australia
Judgment Date
16 March 2017
Procedural Posture
Civil / Interlocutory (ex Tempore Judgment on Notice of Motion and Amendment Application)
Outcome
Application for broad document production mostly refused; limited email production ordered; application to amend cross-claim refused; costs awarded to bank.
Legal Topics
Production of Documents, Discovery, Pleadings Amendment, Costs
Civil Procedure Production of Documents Discovery Pleadings Amendment Costs

Case Brief

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Parties

James Harker-Mortlock

Applicant

J H M Pty Ltd

Second Applicant

Iinvest Pty Ltd (in liquidation)

First Respondent

Commonwealth Bank of Australia

Second Respondent

Procedural Posture

Civil / Interlocutory (ex Tempore Judgment on Notice of Motion and Amendment Application)

Legal Issues

  1. 1 Whether additional documents (including the bank's 'file' and further emails) should be produced by the bank beyond previously agreed discovery categories
  2. 2 Whether discovery should be extended to include the entire pst (email) file of a bank officer
  3. 3 Whether the cross-claimants should be allowed to further amend their cross-claim at this stage of proceedings

Ratio Decidendi

The cross-claimants were refused leave to further amend their cross-claim as the proposed amendments were embarrassing, expressed in overly general terms, and did not fairly arise from new evidence (emails) produced. The court ruled against broad production of the bank's whole 'file' and the entire pst email file, except for emails relating to Iinvest facilities between 1 January 2008 and the date of the notice of default in 2012, which were to be produced. Costs were awarded in the bank's favour as it was substantially successful on the contested interlocutory issues.

Court Disposition

Application for broad document production mostly refused; limited email production ordered; application to amend cross-claim refused; costs awarded to bank.

Orders

  • The cross-claimants are to pay 80 per cent of the bank's costs of and incidental to the notice of motion filed on 13 March 2017.
  • The bank to produce the balance of emails contained in the pst file relating solely to the Iinvest facilities during the period 1 January 2008 and the date of the issue of the notice of default in 2012 within seven days.