Neville’s Bus Service Pty Ltd v Total Group Constructions Pty Ltd [2020] NSWSC 1433

Neville’s Bus Service Pty Ltd v Total Group Constructions Pty Ltd [2020] NSWSC 1433

The notice to produce was set aside because there was no evidence, even on information and belief, of any connection between water ingress to the depot and the concrete pavement defects alleged by the plaintiff; the solicitor did not say that the defendants' concrete expert had opined that water ingress could have caused or affected the pavement, so the notice sought documents not shown to have apparent relevance to the issues and appeared to be a fishing expedition.

Jurisdiction
Australia
Judgment Date
16 October 2020
Procedural Posture
Civil Procedure Ruling in Equity Technology and Construction List Concerning a Notice to Produce / On the Papers; Plaintiff's Notice of Motion to Set Aside Defendants' Notice to Produce
Outcome
Notice to Produce set aside
Legal Topics
['notice to Produce' 'relevance of Documents Sought' 'fishing Expedition' 'technology and Construction List Procedure']
['civil Procedure' 'construction Law'] ['notice to Produce' 'relevance of Documents Sought' 'fishing Expedition' 'technology and Construction List Procedure']

Case Brief

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Procedural Posture

Civil Procedure Ruling in Equity Technology and Construction List Concerning a Notice to Produce / On the Papers; Plaintiff's Notice of Motion to Set Aside Defendants' Notice to Produce

Legal Issues

  1. 1 ["Whether the defendants' notice to produce seeking documents concerning water ingress should be set aside because the documents were not shown to be relevant to issues in the proceedings." 'Whether the material relied on by the defendants established a connection between alleged water ingress and the concrete pavement defects pleaded by the plaintiff.']

Ratio Decidendi

The notice to produce was set aside because there was no evidence, even on information and belief, of any connection between water ingress to the depot and the concrete pavement defects alleged by the plaintiff; the solicitor did not say that the defendants' concrete expert had opined that water ingress could have caused or affected the pavement, so the notice sought documents not shown to have apparent relevance to the issues and appeared to be a fishing expedition.

Court Disposition

Notice to Produce set aside

Orders

  • ['The Notice to Produce served by the defendants on the plaintiff dated 24 August 2020 be set aside.' "The defendants pay the plaintiff's costs of the plaintiff's notice of motion of 9 September 2020." 'The matter be listed for directions on 23 October 2020.']