Zahos v Michael [2012] NSWSC 195

Zahos v Michael [2012] NSWSC 195

The documents sought from Mr Hatzistergos did not relate to any question in the existing proceedings. The existing pleadings concerned alleged transfers of Ms Michael's interests in two Newtown restaurants, not the Bexley North property or a proposed claim against Mr Michael. The proposed amendment could not itself make the documents relate to a question in the proceedings, and UCPR r 5.3 did not apply because Mr Hatzistergos was not a prospective defendant. The application for discovery under UCPR r 5.4 was therefore refused.

Jurisdiction
Australia
Judgment Date
07 March 2012
Procedural Posture
Interlocutory Application for Preliminary Discovery From a Person Who Is Not a Party to Proceedings Pursuant to R 5.4 of the Uniform Civil Procedure Rules 2005 / Notice of Motion Filed by the Plaintiff/applicant on 23 February 2012
Outcome
The application for order 1 in the Notice of Motion filed by the plaintiff/applicant on 23 February 2012 is refused.
Legal Topics
['discovery' 'preliminary Discovery' 'discovery From Non Party' 'uniform Civil Procedure Rules 2005, R 5.3' 'uniform Civil Procedure Rules 2005, R 5.4' 'questions in the Proceedings']
['practice and Procedure'] ['discovery' 'preliminary Discovery' 'discovery From Non Party' 'uniform Civil Procedure Rules 2005, R 5.3' 'uniform Civil Procedure Rules 2005, R 5.4' 'questions in the Proceedings']

Case Brief

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Procedural Posture

Interlocutory Application for Preliminary Discovery From a Person Who Is Not a Party to Proceedings Pursuant to R 5.4 of the Uniform Civil Procedure Rules 2005 / Notice of Motion Filed by the Plaintiff/applicant on 23 February 2012

Legal Issues

  1. 1 ['Whether the person against whom discovery was sought was not a party to the proceedings.' 'Whether it appeared that Mr Hatzistergos may have or have had possession of relevant documents.' 'Whether the documents sought related to any question in the proceedings for the purposes of UCPR r 5.4.' 'Whether UCPR r 5.3 assisted where Mr Hatzistergos was not a prospective defendant.']

Ratio Decidendi

The documents sought from Mr Hatzistergos did not relate to any question in the existing proceedings. The existing pleadings concerned alleged transfers of Ms Michael's interests in two Newtown restaurants, not the Bexley North property or a proposed claim against Mr Michael. The proposed amendment could not itself make the documents relate to a question in the proceedings, and UCPR r 5.3 did not apply because Mr Hatzistergos was not a prospective defendant. The application for discovery under UCPR r 5.4 was therefore refused.

Court Disposition

The application for order 1 in the Notice of Motion filed by the plaintiff/applicant on 23 February 2012 is refused.

Orders

  • ['The application for order 1 in the Notice of Motion filed by the plaintiff/applicant on 23 February 2012 is refused.' "The plaintiff/applicant is to pay the first defendant/second respondent's costs."]