STM123 No. 28 Pty Ltd & Anor v Eastern Suburbs Commercial Pty Ltd & Ors

1. [1]

   SWEENEY J: In these proceedings, by a Notice of Motion filed on 16 September 2025, the Defendants sought discovery from the Plaintiffs of documents specified in six categories in Schedule A to the Notice of Motion.

2. [2]

   The parties proceeded on the basis that the Defendants’ application for discovery superseded an earlier dispute between the parties about a Notice to Produce issued on behalf of the Defendants.

3. [3]

   The Plaintiffs, while not resisting discovery altogether, objected to the Defendants’ proposed categories of documents, asserting that they were too broad, in terms of the timeframes specified or not specified relative to the timeframe of the events the subject of the proceedings, in terms of the entities in respect of which documents were sought going beyond the entities involved in the events the subject of the proceedings and going beyond the facts in issue in the proceedings. The Plaintiffs submitted that the categories of documents sought in Schedule A to the Defendants’ Notice of Motion were contrary to the objective of the “just, quick and cheap” resolution of the “real issues in the proceedings”. Counsel for the Plaintiffs submitted that the Defendants are seeking third party discovery by the breadth of the categories specified. The Plaintiffs proposed revised categories of documents as appropriate for the court to order discovery. With some limited concessions, the Defendants maintained the categories as originally sought.

4. [4]

   Rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

5. [5]

   In order to understand the facts in issue and the parties’ positions and submissions, it is necessary to summarise the subject of the proceedings and the issues in the proceedings, as disclosed in the pleadings.

6. [6]

   By further Amended Statement of Claim filed on 29 October 2024, the Plaintiffs’ claim is, in summary, as follows. The Second Plaintiff, Vaughan Rudd Blank, controlled the First Plaintiff (“No. 28”) and two other companies (“No. 26” and “No. 27”). The property the subject of the proceedings is 34-36 Hall Street, Bondi Beach (referred to as the “Property” in the parties’ documents).

7. [7]

   Companies controlled by Mr Blank owned the properties at 26 Hall Street and 30-32 Hall Street, being the two properties adjoining the Property at 34-36 Hall Street. No. 26 purchased 26 Hall Street and settlement occurred on 30 June 2021. No. 27 purchased 30-32 Hall Street and settlement occurred on 17 January 2022.

8. [8]

   The subject Property at 34-36 Hall Street was owned by a company Bioka Pty Ltd (“Bioka”). The property at 38 Hall Street, adjoining the subject Property, but on the other side from the properties owned by entities controlled by Mr Blank, had a caveat lodged over it pursuant to a call option deed in favour of Bondi Beach Ventures Pty Ltd (“BB Ventures”), a company effectively controlled by a man named Allen Linz.

9. [9]

   The First Defendant was a company which carried on the business of Richardson & Wrench, Bondi Junction (“R&W”), a commercial real estate agency. The Plaintiffs assert that the Second, Third and Fourth Defendants were directors of R&W. There is some dispute on behalf of those Defendants about the particulars of their relationship with R&W.

10. [10]

    Mr Blank asserts that on 28 July 2021 he was interested in buying the Property and that No. 28 entered into an agreement with R&W by which R&W became No. 28’s exclusive buyer’s agent, so that No. 28 could attempt to purchase the Property.

11. [11]

    The Plaintiffs’ claim is that in breach of that agreement, R&W entered into an agreement with Bioka as agent for the vendor of the Property and also entered into a buyer’s agency agreement with Mr Linz and his company.

12. [12]

    Ultimately, Mr Linz was successful in buying the subject Property.

13. [13]

    The Plaintiffs’ claim is that they suffered loss and damage as a result of their loss of opportunity to purchase the Property and the loss of opportunity to develop that Property, including the opportunity to develop the Property with either or both of the two properties owned by entities controlled by Mr Blank.

14. [14]

    In the Amended Defence filed on 16 May 2025 the Defendants dispute that there was an exclusive buyer’s agency agreement between R&W and No. 28. The Defendants say that Mr Blank sent the buyer’s agency agreement document back to R&W with changes made unilaterally by him, and no agreement was entered into between them. The Defendants say that if there was an agreement between No. 28 and R&W it had ended by the time R&W were dealing with the owners of the property and BB Ventures/Mr Linz. The Defendants say that Mr Blank knew that R&W was dealing with Mr Linz and Bioka about the Property and consented or acquiesced to such. The Defendants say the Plaintiffs engaged another agent to contact the owner of the Property.

Documents sought – Category 1

1. [15]

   Category 1 of Schedule A seeks communications between the Plaintiffs and Allen Linz (whose company bought the subject Property at 34-36 Hall Street) in the following terms:

2. [16]

   The Plaintiffs’ alternative proposal for Category 1 was in the following terms:

The Defendants’ submissions

1. [17]

   The Defendants seek correspondence between the Plaintiffs and Allen Linz whose company acquired the desired Property. The Defendants say that the communications will show that Mr Blank knew Mr Linz was dealing with the Defendants in relation to the Property. The dates specified by the Defendants end on 30 September 2022, September 2022 being when Mr Linz’s entity settled the purchase of the Property.

2. [18]

   The Defendants submit that the reference to other real estate agents is relevant to the Plaintiffs’ dealings with another agent in relation to the Property. The Defendant submits that the reference to “actual, proposed or potential offers” to acquire the Property is relevant to Mr Blank’s knowledge of Mr Linz’s attempts to acquire the Property and whether Mr Blank could or would have exceeded any offer by Mr Linz on the Property.

The Plaintiffs’ submissions

1. [19]

   The Plaintiffs submitted that their highest offer of $16 million exceeded Mr Linz’s offer of $15.25 million which was accepted by the vendors. The Plaintiffs query the relevance of the documents sought in Category 1. The Plaintiffs submitted that the Defendants’ assertions that the Plaintiffs knew of R&W’s dealings with Mr Linz and agreed or acquiesced to them will not be demonstrated by communications between the Plaintiffs and Mr Linz but by communications between the Plaintiffs and the Defendants.

2. [20]

   However, the Plaintiffs agreed to give discovery in terms of its proposed Category 1, accepting that communications between the Plaintiffs and Mr Linz about development of the sites may have relevance. The Plaintiffs’ proposed end date was February 2022, the date of the contract for sale of the Property.

Consideration – Category 1

1. [21]

   Communication between the Plaintiffs and Mr Linz about the property, about any proposed development of the Property, about offers made or proposed by each about the Property, about proposals to develop any of the subject properties, and about real estate agents, appear to be relevant to the issues in the proceedings, including whether Mr Blank was aware that Mr Linz was dealing with R&W. The proposed end date in September, when the purchase of the Property was settled, seems a more appropriate date in terms of communications between Mr Blank and Mr Linz than the February 2022 date when the purchase agreement occurred.

2. [22]

   The Defendants’ drafting of documents “about” seems more apposite than the Plaintiffs’ proposed “referring to”, the latter being potentially different and narrower than the former. The Plaintiffs’ alternative form of Category 1 is neater but, apart from the subcategories excluded which I consider to be appropriate to be included, does not have any substantive difference. The Defendants agree to the Plaintiffs’ proposed exclusion of documents already served or produced, which is appropriate.

3. [23]

   Therefore I would permit the Defendants to obtain discovery of the documents in Category 1 in the form proposed by the Defendants in Schedule A, excluding any such documents already served or produced in the proceedings.

Category 2

1. [24]

   The Defendants sought income tax returns as described in Category 2 of Schedule A to the Notice of Motion as follows:

2. [25]

   The Plaintiffs’ proposed Category 2 was as follows:

3. [26]

   The Plaintiffs also sought an interim confidentiality order in terms that access to the documents produced in this category be limited to the Defendants’ barristers and solicitors and not be disclosed to the Defendants. The Plaintiffs agreed with the Defendants’ suggestion that the documents could also be disclosed to experts who were preparing reports for the parties in the proceedings.

The Defendants’ submissions

1. [27]

   The Defendants submitted that the income tax returns as they propose, in terms of the time period and entities, are relevant, and the financial capacity of the Plaintiffs, and Mr Blank’s financial position overall, are relevant to his ability to have purchased the desired Property and developed it. The Defendants relied on paragraph [12] of Mr Blank’s affidavit of 29 October 2024 in which he said that since 2007 it has been his usual practice to acquire properties for development through special purpose vehicles rather than in his own name, and to have several companies incorporated at any time for the purposes of acting as the purchaser of properties. The Defendants also relied on paragraphs [31]-[38] of Mr Blank’s affidavit in which he stated that STM No. 26 purchased 26 Hall Street for $17 million and settlement occurred on 30 June 2021 and he caused STM No. 27 to purchase 30-32 Hall Street for $17 million, the purchase concluding on 17 January 2022.

2. [28]

   The Defendants opposed the confidentiality orders sought by the Plaintiffs, on the basis that the usual Harman undertaking will apply and that the Plaintiffs and Defendants are not competitors.

3. [29]

   The Defendants submitted that the time period proposed by the Plaintiffs is too narrow, in relation to the Plaintiffs’ capacity to have purchased and developed the Property, relevant to the Plaintiffs’ claim of loss of that opportunity.

The Plaintiffs’ submissions

1. [30]

   The Plaintiffs submitted that they are prepared to provide income tax returns for the three financial years ending 30 June 2021 to 30 June 2023, and in respect of Mr Blank, STM No. 28, and No.’s 26 and 27, which purchased the adjoining properties. The Plaintiffs submitted that if the purpose of the Defendants, in seeking this category of documents, is to test Mr Blank’s financial worth and ability to have purchased the Property and developed it, that will be determined by examination of financial records at the time the opportunity existed, which is the financial years 2021 and 2022, given that Mr Blank and his entities only acquired the adjoining properties beginning in March 2021, and those two financial years are the years in which the opportunity existed for the Plaintiffs to acquire the desired Property.

2. [31]

   The Plaintiffs submitted that the Defendants’ Category 2 seeks third party discovery from irrelevant entities, and the time period from 2018 is not proximate to the opportunity to purchase the Property in 2021. The Plaintiffs submitted that financial records for the years after the opportunity to purchase the Property existed are also irrelevant.

3. [32]

   The Plaintiffs pressed for the interim confidentiality order, for the pre-trial preparation phase, not for evidence adduced at trial. The Plaintiffs submitted that the Defendants’ lawyers do not need the Defendants’ instructions in respect of the documents. The Plaintiffs also submitted that the Plaintiffs and the Defendants are in a position of competition, given their relative businesses, and that the Defendants as real estate agents in the Eastern Suburbs acting for vendors of land should not know the financial resources of the Plaintiffs. The Plaintiffs submitted that the Harman undertaking is insufficient to protect the Plaintiffs’ financial confidentiality because if the Defendants come to know that information it would be difficult for them to “un-see” it.

4. [33]

   The Plaintiffs accepted that the documents should be disclosed to experts who are retained to prepare reports for the proceedings.

Consideration – Category 2

1. [34]

   As the Plaintiffs accept, the Plaintiffs’ financial capacity to have purchased and developed the Property is relevant to an issue in the proceedings. However, as Mr Blank stated in his affidavit, he caused two entities to purchase two properties, each for the sum of $17 million, from mid-2021 until January 2022. The period sought by the Defendants, going back to 2018, has not been demonstrated by the Defendants to be relevant. Mr Blank and his entities only acquired the properties in Hall Street in 2021 and 2022. His financial position in 2018 would not necessarily throw light on his capacity to purchase properties in 2021 and 2022, which he demonstrated by purchasing the two properties in Hall Street. Nor is there any relevance apparent to the issues in the proceedings of the other entities nominated by the Defendants, beyond the two companies which purchased the properties in Hall Street and No. 28 which was intended to be used to purchase the Property, and particularly “any other company” of which Mr Blank or STM123 is a director or shareholder. That enquiry is simply too broad and has not been demonstrated to be relevant to the facts in issue in the proceedings.

2. [35]

   I am of the view that the interim confidentiality order sought in respect of these documents is appropriate given the Plaintiffs’ and Defendants’ positions and roles in the buying and selling of land in the Eastern Suburbs, including land which can be used for development.

3. [36]

   I would allow the Defendants discovery, in the form of Category 2 as specified by the Plaintiffs in their Schedule. I would also order that: Until further order of the Court, access to the documents produced under Category 2 is limited to the Defendants’ barristers and solicitors, and any experts retained by them to prepare reports in relation to the proceedings. The documents and their contents are not to be disclosed to the Defendants.

Category 3

1. [37]

   The Defendants’ Category 3 is in the following terms:

2. [38]

   The Plaintiffs’ alternative version of Category 3 was in the following terms:

The Defendants’ submissions

1. [39]

   The Defendants submitted that the arrangements between Mr Blank and his related entities are relevant to the Plaintiffs’ ability to acquire and develop the Property and the Plaintiffs’ assertion that No. 28 was an undisclosed agent for Mr Blank in dealings with R&W. The Defendants submitted that there is no reason to limit the category to the period specified in the Plaintiffs’ alternative version, being the period from when Mr Blank approached the Defendants to when the Property was acquired. The Defendants submitted that documents before and after that date are relevant to whether and how the Plaintiffs would have acquired the Property and developed it. The Defendants submitted there is no evidence of undue burden.

2. [40]

   The Defendants submitted that the breadth of the category is because of Mr Blank’s stated practice of using multiple corporate entities. The Defendants submitted that seeking to understand the arrangements between Mr Blank and his entities is relevant to his assertion that No. 28 was his undisclosed agent in the agreement with the Defendants and as to the Plaintiffs’ claimed loss of the opportunity to develop the Property with either or both of the properties in Hall Street, which Mr Blank’s entities had already acquired.

The Plaintiffs’ submissions

1. [41]

   The Plaintiffs submitted that the category as particularised by the Defendants is too broad in terms of the time period and the parties, that it is seeking third party discovery and is contrary to the objective that the conduct of proceedings be “just, quick and cheap” and only necessary for the resolution of the true issues in dispute.

Consideration – Category 3

1. [42]

   Category 3 as drafted by the Defendants is too broad in seeking agreements of any and every kind between Mr Blank and effectively any company of which he is a director or shareholder. Arrangements between Mr Blank and companies beyond the three involved in the acquisition of properties in Hall Street and the proposed acquisition of the Property have not been demonstrated to have any relevance to the facts in issue in the proceedings. The nominated period back to 2016 is also too broad and is not demonstrated to have any relevance to the facts in issue in the proceedings.

2. [43]

   However the Plaintiffs’ alternative is restricted too tightly. Agreements between Mr Blank and No. 26 and No. 27 about the acquisition and proposed development of the two properties acquired in Hall Street in 2021 and 2022 may have relevance to the issues in the proceedings, as well as agreements between Mr Blank and No. 28 in respect of the proposed acquisition of the Property and the potential proposed development of all three blocks if the Property had been acquired. Also the date range proposed by the Plaintiffs is too tight and should be relaxed a little to cover the period from the beginning of 2021 until September 2022 when Mr Linz’s entity’s purchase of the Property was settled. That should not impose an undue burden on the Plaintiffs. Agreements between Mr Blank and his three relevant companies, No. 26, No. 27 and No. 28, in that date range, could have relevance to the issues in the proceedings.

3. [44]

   Therefore I would order that in Category 3 the Defendants can have discovery of any contracts or agreements entered into between Mr Blank and any of his companies No. 26, No. 27 and No. 28, and any contracts or agreements between any of those companies, in respect of the acquisition and/or proposed development of the properties at 26 Hall Street, Bondi Beach, 30-32 Hall Street, Bondi Beach, and 34-36 Hall Street, Bondi Beach between 1 January 2021 and 30 September 2022, excluding any such documents served or produced in the proceedings to date.

Category 4

1. [45]

   The Defendants’ proposed Category 4 is:

2. [46]

   The Plaintiffs’ proposed alternative is:

3. [47]

   The Plaintiffs also sought a confidentiality order in the terms previously sought, and that certain specified entries in the financial records be redacted, but accepted that if a confidentiality order was made as sought then they could not press for the redactions.

The Defendants’ submissions

1. [48]

   The Defendants submitted that the documents sought in Category 4 are relevant to the Plaintiffs’ ability to acquire and develop the Property and also the loss the Plaintiffs claim which “apparently extends to Mr Blank’s loss through his various corporate entities”.

2. [49]

   The Defendants submitted the period proposed by the Plaintiffs is unduly narrow in terms of when the Property would have been acquired and developed. They submitted the other entities specified are relevant because “We don’t know what other entities might have done to support No. 28”. The Defendants submitted the categories of “loan facility documents and bank statements” counter-proposed by the Plaintiffs is too narrow and there is no evidence of the production of the documents sought by the Defendants being burdensome.

The Plaintiffs’ submissions

1. [50]

   The Plaintiffs submitted that the Defendants’ category is too broad, seeking third party discovery of financial documents for entities entirely unconnected to the proceedings and in respect of which there is no allegation they would have purchased the Property or undertaken the development.

Consideration – Category 4

1. [51]

   Although the Defendants submitted that the Plaintiffs were suggesting their loss was not limited to the Plaintiffs’ loss, the Plaintiffs’ loss particularised in paragraph [83] of the Further Amended Statement of Claim is loss by Mr Blank and/or No. 28, constituted by either the loss of increased value of the Property, or alternatively the loss of the opportunity to develop the Property with either 30-32 Hall Street or 30-32 and 26 Hall Street and the increased value of the Property following such development. Therefore the Plaintiffs’ claimed loss and damage does not go beyond Mr Blank and the three companies specified in the Plaintiffs’ proposed alternative Category 4. The Defendants’ proposed dates going back to 1 January 2016 and up to the date of this order are too broad to be relevant to the issues in the proceedings and particularly the Plaintiffs’ capacity to have bought and developed the Property, with its adjoining Properties or alone. The Plaintiffs’ proposed date range is from 28 July 2021, when the Plaintiffs began to act in pursuit of acquiring the Property, and February 2022 when Mr Linz’s entity acquired the Property and the opportunity to acquire the Property was thus lost to the Plaintiffs. For this category of documents, in relation to the Plaintiffs’ ability to acquire and potentially develop the Property, I am of the view that the Plaintiffs’ proposed date range is appropriate. Financial documents for all of the other entities specified by the Defendants in Category 4 are not relevant to the issue identified.

2. [52]

   The categories of documents specified by the Plaintiffs are too restricted. However the categories described by the Defendants are too broad. Bank statements for Mr Blank for the period, showing what he spent money on, goes beyond what is relevant and necessary for the Defendants to have to explore the issue of the Plaintiffs’ capacity to purchase and develop the Property and/or the adjoining properties.

3. [53]

   Therefore I would allow the Defendants to obtain discovery in Category 4, excluding any documents served or produced in the proceedings to date, for the period 28 July 2021 to February 2022, of documents recording the terms and amounts of any loans, bank facilities, financial facilities, mortgages or encumbrances of STM123 No. 26, STM123 No. 27 and STM123 No. 28, and in respect of Vaughan Rudd Blank, documents recording the terms and amounts of any loans, bank facilities or financial facilities used or intended to be used by him for the acquisition and/or proposed development of land during that period and bank statements for any personal accounts during that period, showing only account balances, being bank statements produced by the relevant banks as frequently as they were issued by the banks during that period.

4. [54]

   I would also order that: Until further order of the Court, access to the documents produced under Category 4 is limited to the Defendants’ barristers and solicitors, and any experts retained by them to prepare reports in relation to the proceedings. The documents and their contents are not to be disclosed to the Defendants.

Category 5

1. [55]

   Category 5 sought financial statements for Mr Blank and companies, in the Defendants’ category as follows:

2. [56]

   The Plaintiffs’ alternative category was as follows:

3. [57]

   The Plaintiffs also sought an interim confidentiality order in respect of Category 5 documents.

Submissions

1. [58]

   The parties made submissions in the same terms as made in respect of Category 4.

Consideration – Category 5

1. [59]

   In respect of the issues of the Plaintiffs’ capacity to have acquired the Property and potentially developed it, alone or with the adjoining properties owned by entities controlled by Mr Blank, the period dating back to 1 January 2016 extending to the date of this order proposed by the Defendants is too broad to be relevant to those issues, as is the specification of companies beyond the three relevant companies. The three financial years 2021-2023 seems appropriate as relevant to the issues in the proceedings. Although the category of documents specified by the Plaintiffs is narrower than the broad description of the Defendants, the Plaintiffs’ description seems to include the necessary and appropriate relevant documents.

2. [60]

   Therefore I would order that the Defendants can have discovery in the terms specified by the Plaintiffs and I would make a confidentiality order in the same terms as for Categories 2 and 4.

Category 6

1. [61]

   The documents sought in this category relate to proposed developments of the Property, the “Blank Development Site” which was defined to mean the properties located at 26 and 30-32 Hall Street, and the “Proposed Blank Development Site” which was defined to mean the properties located at 26, 30-32 and 34-36 Hall Street.

2. [62]

   The Defendants’ proposed category was as follows:

3. [63]

   The Defendants seek documents in relation to the actual development that Mr Blank and his entities have carried out and potential development of 34-36 Hall Street if he had acquired it. The Defendants submitted that the development of the Blank properties is relevant to the lost opportunity claim. The Plaintiffs dispute that, submitting that what the Plaintiffs contemplated in developing the two properties they owned without the Property is irrelevant, that it is relevant to mitigation.

4. [64]

   The Plaintiffs generally object to there being no time limitation in the Defendants’ proposed categories. The Defendants say there is no need for time limitations because Mr Blank may have contemplated developing the sites before he acquired the sites he did obtain and before he sought to acquire the Property, and there should not be a burden in producing documents of the kind sought even without a time limitation. The Plaintiffs propose the start date as 1 June 2021, June 2021 being when the first property in Hall Street was acquired.

5. [65]

   I consider there is merit in the Defendants’ submission that Mr Blank may have contemplated development of the three Hall Street properties before he acquired the first two and considered acquiring the Property. Therefore a June 2021 start date would be too late. If Mr Blank did consider and seek documents or advice in respect of developing the properties before that date then the documents should not be so voluminous as to place an undue burden on the Plaintiffs to produce such documents.

6. [66]

   I consider that documents in relation to developments occurring or proposed are relevant to issues in the proceedings and again production of such documents should not place too onerous a burden on the Plaintiffs to list and produce them.

Categories 6(a) and 6(b)

1. [67]

   In Category 6(a) and 6(b) the Defendants seek all documents “evidencing or recording” any development of any part of the Blank Development Site (6(a), and 6(b)), any proposed development of the Property or the Proposed Blank Development Site (being the two Blank owned sites and the Property). The Plaintiffs counter proposed any architectural and/or design plans or drawings prepared or commissioned by Mr Blank, and companies No. 26, No. 27 and/or No. 28 in respect of the Blank Development Site. The Plaintiffs submitted that providing to the Defendants the drawings showing how many apartments were proposed to be put on the sites would go directly to the loss of opportunity case. The Plaintiffs submitted that the other subcategories in Category 6 deal with other documents sought and therefore the architectural drawings and design plans are a sufficient response to Category 6(a) and 6(b). The Defendants submitted that limiting the categories to architectural and/or design plans or drawings commissioned by Mr Blank and his specified companies is too narrow and would exclude communications that may well be relevant to the issues in the proceedings.

2. [68]

   The Defendants’ subcategories 6(a) and (b) are very broadly drawn and may well include the documents sought in other subcategories in Category 6. But the Plaintiffs’ proposed subcategories 6(a) and (b) are too narrow.

3. [69]

   I would order the Defendants can have discovery in Category 6(a) of any architectural and/or design plans or drawings obtained or commissioned by Mr Blank, STM123 No. 26, No. 27 and No. 28 in respect of the Blank Development Site, any drafts of such and any communications between Mr Blank and any of the specified companies with persons or businesses in respect of such plans or drawings, excluding any such documents served or produced in the proceedings to date.

4. [70]

   I would allow the Defendants to obtain discovery in Category 6(b) of any architectural and/or design plans or drawings obtained or commissioned by Mr Blank, and any of No. 26, 27 and 28, in respect of any proposed development of the Property or the Proposed Blank Development Site (as defined), any drafts of such and communications between Mr Blank and any of the specified companies and any persons or businesses in respect of such plans or drawings, excluding any documents served or produced in the proceedings to date.

Categories 6(c) and 6(d)

1. [71]

   The Defendants seek documents “evidencing or recording” any costs of any development of any part of the Blank Development Site (6(c)) and of proposed, forecast, anticipated or estimated costs of any development of the Property or the Proposed Blank Development Site (6(d)).

2. [72]

   The Plaintiffs counter proposed in Category 6(c) records of payments made on account of the development of the Blank Development Site between 1 June 2021 until the commencement of the proceedings and in Category 6(d) any budgets, estimates or feasibility studies prepared or commissioned in respect of the Property between 28 July 2021 and February 2022 and 26 Hall Street and 30-32 Hall Street from 1 July 2021 until the commencement of the proceedings. The Defendants submitted that the Plaintiffs’ proposal is too narrow. In my view, limiting Category 6(c) to any records of payments made on account of the development of the Blank Development Site until the commencement of the proceedings is too narrow and may exclude documents which may be relevant to the issues in the proceedings. In respect of Category 6(d) there may not be recent or current documents but not putting an end date on the category, rather than limiting it to the commencement of the proceedings, should not produce too great an extra burden on the Plaintiffs, but if there are such documents in that timeframe they may be relevant to issues in the proceedings.

3. [73]

   I would allow the Defendants discovery in Category 6(c) of records of any costs of any development of the Blank Development Site, or part thereof, by Mr Blank or any of his 3 named companies, excluding any documents served or produced in the proceedings to date.

4. [74]

   I would allow the Defendants discovery in Category 6(d) of any documents recording any proposed, forecast, anticipated or estimated costs of any development of the Property, and any development of the Proposed Blank Development Site by Mr Blank or any of his 3 named companies.

Categories 6(e) and 6(f)

1. [75]

   The parties agreed that what was sought and could be disclosed in these categories was correspondence between the Plaintiffs, including by their agents, and Waverley Council in respect of proposed development of the sites. The Plaintiffs sought to place a time limit on such documents. In my view correspondence outside that narrow period of July 2021 and February 2022 may be relevant to the issues in the proceedings.

2. [76]

   I would allow in Category 6(e), discovery of any correspondence between the Plaintiffs, including by their agents, and Waverley Council, in respect of any development or proposed development by Mr Blank and/or his companies of the Blank Development Site, excluding any such documents served or produced in the proceedings to date.

3. [77]

   In respect of Category 6(f) I would allow discovery of any correspondence between the Plaintiffs, including by their agents, and Waverley Council in respect of any proposed development of the Property or the Proposed Blank Development Site, by Mr Blank and/or any of his companies, excluding any such documents already served or produced in the proceedings.

Categories 6(g) and 6(h)

1. [78]

   In Category 6(g) the Defendants sought evidence of communications between the Plaintiffs and any solicitor, town planner, engineer or consultant about any part of the Blank Development Site or any development of any part of the Blank Development Site.

2. [79]

   The Plaintiffs opposed production in Category 6(g) entirely. The Plaintiffs submitted that there is evidence of the development application that was approved by Waverley Council for the Blank Development Site and therefore any material which formed the basis on which the application was approved is irrelevant. The Plaintiffs submitted that what Mr Blank and his entities may have considered doing in respect of the Blank Development Site alone is irrelevant. That seems inconsistent with the Plaintiffs’ responses in respect of other categories seeking documents about the Blank Development Site. Limiting the documents to the development application seems too narrow.

3. [80]

   In respect of Category 6(h), which seeks documents from the same categories of professionals about the development of the Property or the Proposed Blank Development Site, the Plaintiffs objected to production of documents from solicitors. I anticipate that if I were to allow any discovery in Category 6(g) the Plaintiffs would similarly object to the production of documents recording communications with solicitors. The objection is to the production of privileged material.

4. [81]

   The Defendants submitted that a sophisticated real estate developer such as Mr Blank would use solicitors. Counsel submitted that privileged documents were not being sought. The Plaintiffs responded that even if privileged documents are not being sought, to include correspondence with solicitors would require the Plaintiffs to prepare a list of documents which are privileged and not privileged.

5. [82]

   The Defendants seemed to contemplate privilege only in respect of the current litigation. The documents or communications may be privileged within s 118 of the Evidence Act 1995 (NSW), in relation to legal advice, and within s 119 of the Evidence Act, in relation to these proceedings.

6. [83]

   It is accepted that Mr Blank may use solicitors for conveyancing transactions and, possibly, in respect of the incorporation of companies to purchase real estate. It is difficult to see how any document between Mr Blank and/or his companies and a solicitor, which would not be the subject of a proper claim for privilege, could assist in respect of the development of the Blank Development Site, that is Category 6(g). In Category 6(h) a draft contract prepared by a solicitor in respect of the Property may be relevant to issues in the proceedings about Mr Blank’s intended or attempted purchase of the Property. However it is difficult to see how any other document would not be privileged or if not would be relevant to the issues in the proceedings. The Plaintiffs should not have to bear the burden of drawing up lists of privileged documents when it is not readily apparent how such would be of assistance to the Defendants as throwing light on any of the issues in the proceedings.

7. [84]

   In respect of Category 6(g) I consider it appropriate that the Defendants have discovery of documents between Mr Blank and his relevant companies and town planners, engineers or consultants about the development of the Blank Development Site, and without time limit, as he may have sought and obtained such advice while he was contemplating acquiring the two properties in Hall Street, and before he acquired them. I would not include solicitors for the reasons outlined above.

8. [85]

   Therefore in respect of Category 6(g) I would permit the Defendants to have discovery of any correspondence between Mr Blank and any of his companies No’s 26 and 27 with any town planner, engineer or consultant about any part of the Blank Development Site or about any development of any part of the Blank Development Site, excluding any such documents served or produced in the proceedings to date.

9. [86]

   In Category 6(h) I would permit the Defendants discovery in similar terms, excluding solicitors, but for draft contracts in respect of the Property.

10. [87]

    Therefore in respect of Category 6(h) I will permit the Defendants discovery of any correspondence between the Plaintiffs between Mr Blank and any of his companies No. 26, No. 27 or and/or No. 28 with any town planner, engineer or consultant about the Property or the Proposed Blank Development Site, or about any development of the Property or the Proposed Blank Development site, and any draft contracts provided to Mr Blank or any of his above-named companies in respect of the proposed acquisition of the Property.

Categories 6(i), 6(j) and 6(k)

1. [88]

   These categories sought valuations of the Blank Development Site (6(i)) and the Property or the Proposed Blank Development Site in (6(j)). The Plaintiffs are prepared to produce such but submitted the documents required to be produced should be limited to the period from 1 June 2021 until the commencement of the proceedings.

2. [89]

   The Plaintiffs’ position was the same in respect of Category 6(k), which seeks profit forecasts for each of the three sites.

3. [90]

   The actual documents possessed by Mr Blank and his companies may, at least in respect of the Property and the proposed Blank Development Site, not exist after the period in which the property was sold to Mr Linz, and may not exist before the time when Mr Blank began the process of acquiring the two properties in Hall Street. However if that be the case, then to leave the categories without a time limitation will not place any greater burden on the Plaintiffs.

4. [91]

   I would permit the Defendants discovery in Category 6(i) of any valuations of any part of the Blank Development Site, and for Category 6(j) any valuations of the Property or the Proposed Blank Development Site.

5. [92]

   In Category 6(k) I would permit the Defendants discovery of any profit forecasts for any part of the Blank Development Site or for the Proposed Blank Development Site.

Orders

1. [93]

   I make the following orders:

   1. (1)

      The First and Second Plaintiffs are to give discovery to the First, Second, Third and Fourth Defendants of documents within the class specified as follows:

   2. (2)

      The First and Second Plaintiffs are to serve on the First, Second, Third and Fourth Defendants a verified list of all documents referred to in Order (1) by 4 February 2026.

   3. (3)

      As each party has succeeded on these issues in about equal measure, each party should pay their own costs of this motion. If either or both parties wish to ask the Court to make a different costs order they should advise Chambers by 4 February 2026.