Butt v The Owners – Strata Plan No 71715 [2023] NSWCATCD 60

Butt v The Owners – Strata Plan No 71715 [2023] NSWCATCD 60

The OC Summons was set aside because the remaining request for expert and investigation documents was clearly fishing and appeared to be a direct search for evidence, including possibly privileged evidence, while the request for documents concerning the owners corporation's decision to retain solicitors and fee or costs disclosures was plainly irrelevant to the application as pleaded. The O'Donnell Summons was set aside because the categories lacked sufficient or reasonable particularity, used vague and abstract language, and the categories in paragraphs (2), (3) and (4) amounted to fishing expeditions.

Jurisdiction
Australia
Judgment Date
06 June 2023
Procedural Posture
Application to Set Aside Summonses to Produce Documents in a Consumer and Commercial Division Strata Proceeding / On the Papers; Respondents' Application to Set Aside Summonses Issued by the Tribunal on 6 April 2023 at the Applicant's Request
Outcome
Both summonses issued on 6 April 2023 at the applicant's request were set aside; costs were reserved.
Legal Topics
['summons to Produce Documents' 'fishing Expedition' 'reasonable Particularity' 'relevance' 'oppression' 'costs Reserved']
['practice and Procedure' 'strata Schemes'] ['summons to Produce Documents' 'fishing Expedition' 'reasonable Particularity' 'relevance' 'oppression' 'costs Reserved']

Case Brief

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Procedural Posture

Application to Set Aside Summonses to Produce Documents in a Consumer and Commercial Division Strata Proceeding / On the Papers; Respondents' Application to Set Aside Summonses Issued by the Tribunal on 6 April 2023 at the Applicant's Request

Legal Issues

  1. 1 ['Whether the summons to the first respondent should be set aside because the remaining categories sought were fishing, irrelevant, or otherwise inappropriate.' 'Whether the summons to the second respondent should be set aside because the categories lacked reasonable particularity, used vague terms, were oppressive, or amounted to fishing expeditions.' 'Whether costs should be reserved with directions for written submissions if costs are sought.']

Ratio Decidendi

The OC Summons was set aside because the remaining request for expert and investigation documents was clearly fishing and appeared to be a direct search for evidence, including possibly privileged evidence, while the request for documents concerning the owners corporation's decision to retain solicitors and fee or costs disclosures was plainly irrelevant to the application as pleaded. The O'Donnell Summons was set aside because the categories lacked sufficient or reasonable particularity, used vague and abstract language, and the categories in paragraphs (2), (3) and (4) amounted to fishing expeditions.

Court Disposition

Both summonses issued on 6 April 2023 at the applicant's request were set aside; costs were reserved.

Orders

  • ['The summons to the first respondent issued by the Tribunal on 6 April 2023 at the request of the applicant is set aside.' 'The summons to the second respondent issued by the Tribunal on 6 April 2023 at the request of the applicant is set aside.' 'Costs are reserved.' 'If either respondent seek costs, they should...