The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502

The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502

The Notice to Produce as served failed to identify specific documents and thus must be set aside. However, because the plaintiff faces a pending motion to dismiss and the documents sought may be directly relevant to the issue of whether a contractual relationship exists, exceptional circumstances justify permitting the plaintiff leave to serve a new Notice to Produce under UCPR r 34.1 prior to the exchange of evidence.

Jurisdiction
Australia
Judgment Date
16 May 2012
Procedural Posture
Notice of Motion Procedural Ruling / Application to Set Aside Notice to Produce Prior to Witness Statements and Pending Motion to Dismiss
Outcome
Plaintiff's Notice to Produce set aside; leave granted to serve a further Notice to Produce under UCPR r 34.1.
Legal Topics
['notice to Produce' 'discovery/disclosure' 'practice Note SC Eq 11' 'exceptional Circumstances' 'home Building Act' 'contractual Relationships']
['civil Procedure'] ['notice to Produce' 'discovery/disclosure' 'practice Note SC Eq 11' 'exceptional Circumstances' 'home Building Act' 'contractual Relationships']

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Procedural Posture

Notice of Motion Procedural Ruling / Application to Set Aside Notice to Produce Prior to Witness Statements and Pending Motion to Dismiss

Legal Issues

  1. 1 ['Whether the Notice to Produce served under UCPR r 21.10 should be set aside for not identifying specific documents' 'Whether leave should be granted for plaintiff to serve another Notice to Produce under UCPR r 34.1 prior to exchange of evidence' 'Whether exceptional circumstances exist justifying disclosure before service of evidence as required by Practice Note SC Eq 11']

Ratio Decidendi

The Notice to Produce as served failed to identify specific documents and thus must be set aside. However, because the plaintiff faces a pending motion to dismiss and the documents sought may be directly relevant to the issue of whether a contractual relationship exists, exceptional circumstances justify permitting the plaintiff leave to serve a new Notice to Produce under UCPR r 34.1 prior to the exchange of evidence.

Court Disposition

Plaintiff's Notice to Produce set aside; leave granted to serve a further Notice to Produce under UCPR r 34.1.

Orders

  • ["The plaintiff's Notice to Produce of 4 April 2012 is set aside." 'Leave is granted to the plaintiff to serve a Notice to Produce under UCPR r 34.1, returnable before the Registrar, seeking the documents described in paragraphs [2] and [3].']