AMV Australia Pty Ltd v Premier Compensation Lawyers Pty Ltd

1. [1]

   The plaintiff by notice of motion filed 6 December 2019 seeks a review of the decision of the Registrar made 2 December 2019. That decision was made in relation to the plaintiff's notice of motion filed 31 October 2019 seeking preliminary discovery of some nine classes of documents referred to in that notice of motion.

2. [2]

   The basis for the plaintiff’s seeking preliminary discovery was a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 19 September 2019 marked “Without prejudice except as to costs”. The issue before the Registrar turned on whether the plaintiff was able to bring part of the letter of 19 September 2019 within the exception provided in s 131(2)(j) of the Evidence Act 1995 (NSW).

3. [3]

   That part of the letter disclosed that the defendant was no longer the principal trading entity of the firm of solicitors who had been sued, and another company was trading as the firm, with the defendant’s practice winding down. The documents sought to be discovered were various financial records which might inform the bringing of an action in reliance on s 37A of the Conveyancing Act 1919 (NSW).

Background

1. [4]

   The plaintiff is a company which carries on the business of providing solicitors with the service of arranging consultations with health practitioners for the solicitors’ clients, arranging the attendance of interpreters if required, facilitating the delivery of medico-legal reports from those health practitioners, and paying the health practitioners and interpreters for those consultations and reports.

2. [5]

   From 5 February 2014 the defendant has carried on the business of a legal practice trading as Premier Compensation Lawyers (PCL).

3. [6]

   On or about 3 March 2014 the plaintiff and the principal of the defendant, Jason Di Michiel on behalf of the defendant, entered into oral agreement for the defendant to use the medico-legal report services provided by the plaintiff. On 30 June 2014 the parties entered into a written agreement to similar effect. Thereafter from 30 June 2014 until about January 2018 the defendant gave instructions to the plaintiff to provide its services for the clients of the defendant.

4. [7]

   Under the agreement the amounts payable to the plaintiff were payable two years from the date of delivery of the medico-legal reports. The plaintiff alleges that the defendant paid fees for some, but not all, of the clients.

5. [8]

   The plaintiff filed a statement of claim on 21 March 2019. At that time, the plaintiff was seeking the sum of $848,791.16 from the defendant. The plaintiff also sought a declaration that various other amounts totalling about $200,000 would become due and payable at various dates between 1 May 2019 and 1 August 2020.

6. [9]

   The real dispute between the parties in relation to those claims by the plaintiff appeared to be the extent of the premium which the defendant was obliged to pay on top of whatever the plaintiff was charged by the doctors it engaged for the obtaining of the medico-legal reports.

7. [10]

   A further claim was made in the statement of claim for moneys pursuant to another agreement, called a disbursement services agreement, made between the plaintiff and the defendant on 15 September 2016. That claim has been resolved between the parties.

8. [11]

   Relevantly for present purposes, the statement of claim pleaded that from 5 February 2014 the defendant carried on the business of a legal practice trading as PCL. It pleaded the oral agreement and the subsequent written agreement with the defendant. It pleaded that from 30 June 2014 to January 2018 the defendant gave instructions to the plaintiff to provide the services of engaging doctors and obtaining reports from them. The defendant admitted those allegations.

9. [12]

   In the course of correspondence between the solicitors, the solicitors for the defendant sent a letter marked “Without prejudice except as to costs” on 19 September 2019 (“the 19 September letter”). The letter contained a proposal by the defendant to settle the proceedings. It relevantly said this:

10. [13]

    The solicitors then set out an offer, leaving it open for 14 days. The final paragraph of the letter was a fairly standard one where reliance was placed on Calderbank v Calderbank [1975] 3 WLR 586. The portion of the letter in italics formed the basis for the application for preliminary discovery.

11. [14]

    On 25 September 2019 the plaintiff’s solicitors wrote in response to that letter as follows:

12. [15]

    On 26 September 2019 the defendant’s solicitors replied, rejecting the legitimacy of any reliance on the letter of 19 September for any purpose other than negotiations. For that reason the defendant’s solicitors refused to respond to the questions asked.

13. [16]

    The defendant’s solicitors wrote again to the plaintiff’s solicitors on 1 October 2019. That letter was also marked “Without prejudice except as to costs”. The letter relevantly said:

14. [17]

    On 10 October 2019 the plaintiff’s solicitors wrote asserting that the communications commencing with the letter of 19 September 2019 fell within the exception of s 131(2)(j) of the Evidence Act, and they pointed out that the concept of fraud included transactions comprehended by s 37A of the Conveyancing Act 1919 (NSW). The letter raised a number of concerns including:

15. [18]

    The letter went on to say that there was a basis for the plaintiff to believe that it may have a claim against both the defendant and the new company under s 37A of the Conveyancing Act in respect of the transfer of assets including good will from the defendant to the new company. The letter then asked for the provision of nine categories of documents (reproduced below at [21]) so that the plaintiff could assess whether it should pursue such a claim.

The application before the Registrar

1. [19]

   When the request for such documents was refused the plaintiff filed a notice of motion on 31 October 2019 seeking discovery of the nine categories of documents. The notice of motion named as respondents Premier Lawyers Pty Ltd (formerly known as Premier Compensation Lawyers Pty Ltd) ACN 167 884 773 and Premier Compensation Lawyers (WA) Pty Ltd ACN 617 268 827 (WA) Pty Ltd. The first named respondent was identical to the defendant; it had simply changed its name on 23 March 2019. The second named respondent was the company now asserted to be trading as PCL. The second named respondent is hereinafter referred to as PCLWA. This judgment distinguishes the defendant as sued from the respondents to the motions.

2. [20]

   To the extent that PCL is a business name, it is not registered. A search at the Law Society disclosed only that “Premier Lawyers” was an incorporated legal practice, with a website www.premiercompensationlawyers.com.au.

3. [21]

   The categories of documents sought were these:

4. [22]

   The motion was heard by the Registrar on 2 December 2019. The first matter determined was whether the 19 September letter was admissible. The plaintiff appeared to accept that if privilege attached to the 19 September letter because no exception under the Act was made out, the motion for preliminary discovery could not be pursued.

5. [23]

   In her judgment of the same day, the Registrar noted the agreement between the parties that the 19 September letter fell within s 131(1)(a) of the Evidence Act. She then went on to consider whether the letter fell within the exception contained in s 131(2)(j). The Registrar said this:

6. [24]

   The result was that the plaintiff did not pursue the motion for preliminary discovery.

7. [25]

   On 6 December 2019, the plaintiff filed a notice of motion to review the Registrar’s decision.

8. [26]

   As a result of the way the plaintiff’s motion was dealt with before the Registrar, this judgment deals, first, with a review of the Registrar’s decision that the 19 September letter was privileged and, secondly, with the right of the plaintiff to obtain preliminary discovery.

Review of a Registrar’s decision

1. [27]

   The power to review a Registrar’s decision is contained in r 49.19 Uniform Civil Procedure Rules 2005 (NSW) which relevantly provides:

2. [28]

   The proper approach to exercising the review power contained in that rule is set out in Tomko v Palasty (No. 2) [2007] NSWCA 369, where Basten JA (Ipp JA agreeing and Hodgson JA agreeing with additional reasons) said:

3. [29]

   Justice Hodgson (with whose additional remarks Ipp JA agreed) said:

Legislative provisions

1. [30]

   Section 131 relevantly provides:

2. [31]

   Section 37A(1) of the Conveyancing Act provides:

3. [32]

   Rule 5.3 UCPR relevantly provides:

4. [33]

   The first issue to determine is whether the italicised words in the 19 September letter (at [12] above), and the content of the letter of 1 October 2019 (at [16] above) fall within the exception provided for in s 131(2)(j) of the Evidence Act.

Does the exception in s 131(2)(j) apply?

1. [34]

   Mr Fernon of counsel for the plaintiff submitted that the Registrar was wrong to hold that the exception in s 131(2)(j) did not apply. Mr Fernon relied on what was said by Hamilton J in Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1245. He submitted that the effect of cloaking the contents of the letter by applying “without prejudice” to it protected the alienation of assets.

2. [35]

   Mr Harding of counsel for the respondents submitted that the two letters were sent more than two years after the alleged fraud was said to have occurred and was not made in furtherance of the commission of a fraud. He submitted that the fact that the communication was the subject of a claim for “without prejudice” privilege was incapable of informing the question whether that communication itself was made in furtherance of the commission of a fraud.

3. [36]

   The important words in s 131(2)(j) are “in furtherance of the commission of a fraud”. In the first place, it must be determined what “in furtherance of” means. Secondly, it must be determined if “fraud” embraces the alienation of property as referred to in s 37A(1).

4. [37]

   In Lewis v Nortex the question was whether a document prepared in connection with a formal mediation between the parties was admissible in evidence because it fell within s 131(2)(j) of the Evidence Act. The fraud was the promulgation by Mr Lewis of accounts for Nortex that were untrue in that the closing stock was understated. The document in respect of which privilege was claimed was written by Mr Lewis in response to challenges to those accounts made by another party. It was said that Mr Lewis was perpetuating the fraud by defending those accounts in the “without prejudice” document.

5. [38]

   In relation to the meaning of the word “furtherance”, Hamilton J said at [7]:

6. [39]

   In Amcor Limited v Barnes [2011] VSC 341 Kyrou J said:

7. [40]

   In Kaye v Woods [2016] ACTSC 87; (2016) 309 FLR 200, Mossop AsJ, having made reference to what Kyrou J said in Amcor at [58]-[59], said at [38]:

8. [41]

   In my opinion what was said by Hamilton J in Lewis v Nortex at [16] and what was said by Kyrou J in Amcor v Barnes at [60] shows that a concealment of a fraud can be in furtherance of the fraud.

9. [42]

   The Registrar makes no mention of Lewis v Nortex. Her focus was only on whether the document was prepared as part of the process or scheme of the fraud as referred to in Kaye v Woods. The Registrar was bound by Lewis v Nortex and Hamilton J’s determination that active steps to conceal the fraud or maintain concealment are sufficient for the purposes of s 131(2)(j). In any event, Mossop AsJ accepted that a sufficient connection with the fraud would be helping it or advancing it.

10. [43]

    In the present case even if it is accepted that the relevant fraud in the present matter occurred in 2017, the disclosure only in “without prejudice” correspondence in 2019 must be an attempt at concealment of that fraud. Further, the inclusion of that information in the 19 September letter was an attempt, otherwise legitimate, to pressure the plaintiff into accepting the settlement put forward. It is only by viewing the italicised words as part of the attempt to persuade the plaintiff to accept the settlement proposal, that the information comes within s 131(1)(a) in the first instance. The parties accept that the information is within s 131(1)(a). Using the information in that way is, as counsel for the plaintiff put it, “seeking to take advantage of the fraud that has been committed”. In that way there is a furtherance of the fraud.

11. [44]

    The Registrar’s decision was not merely a decision on practice and procedure. It affected substantive rights. If the letter were held to be privileged, the plaintiff would likely be deprived of any claim under s 37A. In those circumstances, the Registrar’s decision should be set aside.

12. [45]

    In Kang v Kwan & 2 Ors [2001] NSWSC 698, Santow J (as his Honour then was) was considering the issue under s 125(1)(a). Section 125 deals with loss of client legal privilege in relation to fraud and deliberate abuse of a power. The principles that apply in relation to s 125(1)(a) are relevantly the same as those that apply in relation to s 131(2)(j).

13. [46]

    His Honour said at [40]:

14. [47]

    That view is supported by the High Court’s analysis of s 37A in Marcolongo v Chen (2011) 242 CLR 546. The plurality, having held at [19] that “defraud” was designed to reproduce the meaning of the expression “delay, hinder or defraud” in the Elizabethan Statute whence s 37A is derived, went on to say:

15. [48]

    Justice Heydon, in his judgment agreeing in the outcome of the case, said at [86] and [87] that an intent to hinder or delay was capable of being a dishonest intent.

16. [49]

    The respondents had relied on what was said by Hodgson JA in Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286 at [61], that he was inclined to adhere to his earlier expressed view in Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 222, that “fraud” in s 131(2)(j) requires actual dishonesty. That view was not accepted by Santow JA who at [68] maintained the view he had expressed in Kang v Kwan. It is not entirely clear from what Mason P said at [24] which of those views his Honour supported.

17. [50]

    In my opinion, Hodgson JA’s view must now be seen in the light of the High Court’s determination that an intention to delay, hinder or defraud involves the debtor acting dishonestly, as Santow J had earlier held in Kang v Kwan.

18. [51]

    It must next be determined if there are reasonable grounds under s 131(3) for finding that fraud was committed by an alienation of property within the meaning of s 37A, so that the evidence can be adduced.

19. [52]

    In Bhagat v Global Custodians Limited [2002] NSWCA 160, Spigelman CJ (with whom Ipp and Brownie AJJA agreed) said at [31]:

20. [53]

    The respondents submitted on the present application that the evidence does not support any reasonably based belief that there has or may have occurred an alienation of property that was made with intent to defraud creditors. The respondents pointed to the statement in the letter of 1 October that “there has been no transfer of assets from PC to PCWA”. They submitted that the statement that there has been an alienation of property with intent to defraud creditors is nothing more than fanciful suspicion and conjecture. Counsel submitted that the “possibility” that those things may have occurred is not sufficient. Reliance in that regard was placed on the Court of Appeal’s decision in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 at [49].

21. [54]

    The respondents submitted that the evidence does not establish reasonable grounds to believe that the plaintiff may have a right of action against either respondent. They submitted that the evidence rises no higher than the following matters:

22. [55]

    In Hatfield v TCN Channel Nine Pty Ltd McColl JA summarised the key principles in relation to an application for preliminary discovery. The principles are these:

23. [56]

    In O’Connor v O’Connor [2018] NSWCA 214, Simpson AJA (with whom McColl and Macfarlan JJA agreed), having set out UCPR r 5.3(1) and definition of “claim for relief” in s 3 of the Civil Procedure Act 2005 (NSW) said:

24. [57]

    In my opinion, the matters identified at [54] above give rise to reasonable grounds for finding that an alienation of property has occurred contrary to s 37A(1). The finding is strengthened when account is taken of what appears in the letter of 1 October 2019.

25. [58]

    Although the defendant’s solicitors denied, in that letter, that there had been a transfer of assets, the information disclosed was that a new company, PCLWA, was now trading as the firm PCL. PCL can be taken to having goodwill. PCLWA has taken over “about 20 matters” to complete those matters. New instructions from clients are being accepted by PCLWA. PCL is continuing to operate from the same business premises, and has the same director. It is a reasonable inference in those circumstances that some goodwill has effectively passed to PCLWA. It seems likely also that other assets, such as equipment, would effectively be transferred so that tax deductions would be available to the new company for those items.

26. [59]

    In those circumstances, I am satisfied that the information in the 19 September letter and the 1 October letter falls within s 131(2)(j) of the Evidence Act. The evidence may be adduced on the present application for preliminary discovery.

Should preliminary discovery be ordered?

1. [60]

   Although the defendants initially argued that the present application was incompetent because it was brought in existing proceedings by notice of motion, and because it sought preliminary discovery against the existing defendant, that position was ultimately abandoned. The application was brought by notice of motion in the present proceedings by agreement. Further, as counsel for the plaintiff made clear, the discovery being sought related not to the existing claim for debt but in relation to what was said to be a claim, however formulated, arising out of the apparent alienation of the defendant’s property contrary to s 37A. Subrule (4) of r 5.3 tends to support the view that an application may be made against an existing party for a different claim for relief, or against another party for a claim for relief, in existing proceedings.

2. [61]

   The respondents raised a number of bases upon which, it was said, precluded the plaintiff from succeeding on the present application. First, the respondent submitted that r 5.3 does not permit discovery for the purpose of enabling a plaintiff to decide whether to sue third parties. Reliance was placed on what was said in Glencore International AG v Selwyn Mines Limited [2005] FCA 801; (2005) 223 ALR 238 at [11], and Morton v Nylex Ltd [2007] NSWSC 562 at [27].

3. [62]

   Secondly, the respondent submitted that r 5.3 does not permit discovery for the purpose of assessing the capacity of the proposed defendant to satisfy a judgment: Aus Steel Pty Ltd v Marco Properties Pty Ltd [2014] NSWSC 550 at [29].

4. [63]

   Thirdly, the respondent submitted that the plaintiff does not show that it does not have sufficient information to decide whether or not to commence the proceedings.

5. [64]

   Finally, the respondent submitted that there was no evidence that the documents in respect of which preliminary discovery is sought would assist the plaintiff to make the decision concerned. Associated with that submission was the further matter that the categories of documents sought to be discovered are too wide for the relevant purpose.

6. [65]

   In Glencore, Lindgren J was considering the relevantly equivalent Federal Court Rule, Order 15A r 6, which provided:

7. [66]

   Justice Lindgren said:

8. [67]

   Similarly, in Morton v Nylex White J (as his Honour then was) said at [27]:

9. [68]

   It does not seem to me that the principle against third party discovery is offended in the present case. As in Hatfield, the plaintiff was there seeking preliminary discovery against three respondents to determine whether she had a claim in defamation against any of those respondents (see at [1]). In the present case, the application is sought against both the present defendant and PCLWA in contemplation of a potential claim under s 37A. Both respondents would necessarily be defendants to such a claim because the interests of both would be affected by an order under that section. In that way, no third party discovery is involved.

10. [69]

    It may be accepted that preliminary discovery is not available only to determine if a party would be able to meet any judgment that the plaintiff obtains: Glencore at [12]; Aus Steel at [29]. The matter is not quite so simple where the prospective claim for relief relates to an improper alienation of property under s 37A. That is because the alienation of the property is closely bound up with the issue of whether, and to what extent by reason of that alienation, the prospective defendant could meet any claim.

11. [70]

    Nevertheless, it is important to keep separate the existing claim the plaintiff brings against the defendant and the prospective claim or claims for relief against that defendant and the other respondent, PCLWA. Any claim for relief under s 37A will not be a claim for damages. Rather, it would in the first instance involve the obtaining of a declaration that the alienation of the property was voidable at the instance of the plaintiff. Consequential orders may be made which would result in the property being restored to the defendant, but that would not result in an order for damages in favour of the plaintiff.

12. [71]

    It may incidentally become apparent from the provision of any documents ordered to be discovered under r 5.3, or when the proceedings under s 37A are commenced or concluded, whether the defendant has the wherewithal to pay the amount sought in the present proceedings. That, however, arises only because of the nature of the claim under s 37A. I do not consider that preliminary discovery is being sought for that purpose.

13. [72]

    In Morton v Nylex, White J said at [33]:

14. [73]

    The respondents pointed to what was said in two letters from the plaintiff’s solicitors to submit that a decision had been made that a fraud had been committed. In that regard, the respondents pointed to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 21.4 where it is said that a solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.

15. [74]

    In the letter of 25 September 2019 from the plaintiff’s solicitors to the defendant’s solicitors the following was said:

16. [75]

    In a letter of 10 October 2019, the plaintiff’s solicitors said this:

17. [76]

    What those letters establish is that the plaintiff’s solicitors had formed a view that a cause of action existed against the respondents. They did so on the basis of what had been said in the letters from the defendant’s solicitors of 19 September and 1 October. I do not consider that in writing the letters of 25 September and 10 October, the plaintiff’s solicitors breached r 21.4. The letters provided a basis for the assertion made.

18. [77]

    The distinction made by Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 and approved in O’Connor at [24] and Hatfield at [51] is important. Justice Hely said at [26](f):

19. [78]

    There is a considerable difference between deciding if a cause of action is available and a decision whether to commence proceedings based on that cause of action. One very obvious reason for that difference might be whether pursuing such a cause of action was worthwhile in the light, for example, of any damages that might be awarded. Although in the present case an action under s 37A of the Conveyancing Act would not result in an order for damages, there is likely to be a question about the extent of any alienation of property which would need to be known before a decision could properly be made whether to commence proceedings in reliance on that section.

20. [79]

    The matter may be contrasted with the position in Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883. In that case the solicitors for the plaintiff wrote to the other parties saying that they had advised that their client was entitled to commence proceedings against the prospective defendants. Justice Barrett said at [12]:

21. [80]

    If, on the other hand, Barrett J was aligning an entitlement to commence proceedings (that is, having a cause of action) with having sufficient information to do so (and I do not think his Honour was), that view would be inconsistent with the distinction made by the Court of Appeal in both Hatfield and O’Connor.

22. [81]

    The respondents submitted that the affidavit from the plaintiff’s solicitor, Ms O’Neill, has little to say about why the evidence the plaintiff seeks is required. The respondents submitted that Ms O’Neill makes no attempt to identify or set out the evidentiary foundation for the requirement that the plaintiff does not have sufficient information to commence any new proceedings. The respondents pointed, in that regard, to what was said in Morton v Nylex at [34]-[35].

23. [82]

    What Ms O’Neill does in her affidavit is to annex searches she has undertaken in relation to the firm PCL and the associated companies. She also annexed correspondence including the letter she wrote to the defendant’s solicitors dated 25 September 2019 and 10 October 2019.

24. [83]

    It is apparent from the searches carried out and the concerns expressed in the correspondence by Ms O’Neill that the plaintiff had limited information about the changed arrangements, and was seeking to find out more by the questions asked. There was no need for her to set out in her affidavit all that she had written in her letters. I reject the submission that there is no evidentiary foundation for the making of an order under r 5.3.

25. [84]

    It is significant also that the opening words of the rule are, “If it appears to the court…”. Provided there is some evidence, which I have found that there is, of a lack of information on the part of the plaintiff to make a decision about whether to commence proceedings, the test is largely an objective one: Morton v Nylex at [35]; St George Bank v Rabo at [26(g)], approved in O’Connor at [24], and see O’Connor also at [28] and [30].

26. [85]

    The plaintiff has limited information about what has occurred in order to see whether it ought to commence proceedings in reliance on s 37A. In the 19 September letter it was given only the most general information with regard to the companies and the firm. In the letter of 1 October 2019, although some further information was provided, it threw little light on the extent to which there had been an alienation of property, whether by an express or implied transfer of assets, or otherwise. Although, as I have said, an inference is available that there has been a transfer of goodwill as a result of what was disclosed, whether there has been any formal transfer of assets can only be speculation at the present time without more information.

27. [86]

    In that regard, I am satisfied from the terms of the letter from the plaintiff’s solicitors of 10 October 2019, that reasonable enquiries have been made and, as a result of the refusal of the respondent’s solicitors to provide any of that information, that the plaintiff has been unable to obtain sufficient information to decide whether or not to commence the proceedings under s 37A. I am further satisfied that the respondents may have or have had possession of documents that could assist in determining whether the plaintiff is entitled to make such a claim for relief and that inspection of those documents would assist the plaintiff to make the decision concerned. As Simpson AJA pointed out in O’Connor at [21] that decision is whether or not to commence the proceedings.

28. [87]

    The respondents submitted in their written submissions that it was neither explained nor apparent how the categories of documents sought would assist the plaintiff to make a decision whether to commence proceedings. Two matters were expressly relied upon. The first was the matter considered in the previous section of the judgment, that is, that the plaintiff had already decided that there had been an alienation of the property. The second matter was said to be that the discovery was directed to assessing the defendant’s capacity to pay any judgement in the present proceedings. I have earlier dealt with both of those matters adversely to the respondents.

29. [88]

    In oral submissions, Mr Harding pointed to the width of some of the categories to submit that it was not apparent how the documents would relevantly assist the plaintiff. Subject to a limitation in respect of the date ranges in the categories, I consider that the documents in categories (a), (b), (c), (e), (f), (g) and (h) should be discovered. They are likely to provide direct evidence of whether, and to what extent, there has been an alienation of property.

30. [89]

    However, the date ranges specified are unreasonably wide. On the information disclosed, the defendant traded as PCL until 8 February 2017. The taking on of new clients and the winding down of the defendant only commenced from that time. It will be sufficient, in respect of the defendant, if there is disclosure of accounts, financial statements, tax returns and asset registers of the defendant for the financial year from 1 July 2015 to 30 June 2016, and thereafter. The enquiry is, as Mr Fernon asserts, a comparison between the assets of the defendant before 8 February 2017 with its assets and that of PCLWA after that time. Taking the enquiry back to the time the plaintiff commenced dealing with the defendant in the June 2014 tax year extends back beyond what is necessary for present purposes.

31. [90]

    It seems to me that documents relating to the status of files identified in Annexure “A” to the statement of claim (paragraph (d) in the present motion) concern matters more particularly related to the issues in the present proceedings, and not to the issue raised by the disclosure giving rise to this present motion. The documents referred to in paragraph (i) seem to me to be too peripherally relevant to be able to assist in determining whether the plaintiff is entitled to make a claim under s 37A.

32. [91]

    Although I have cut down to a small extent the documents which must be discovered, the plaintiff has otherwise been successful in obtaining the orders it sought in both the notice of motion filed 31 October 2019 and the notice of motion filed 6 December 2019. The respondents should pay the plaintiff’s costs of those motions.

Conclusion

1. [92]

   Accordingly, I make the following orders:

   1. (1)

      Set aside the decision of the Registrar given on 2 December 2019 dismissing the plaintiff’s notice of motion filed 31 October 2019.

   2. (2)

      Order that the respondents give discovery in accordance with Rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) of the following documents:

   3. (3)

      The respondents are to pay the plaintiff’s costs of the notices of motion filed 31 October 2019 and 6 December 2019.