Explore Building Management Services Pty Ltd v The Owners – Strata Plan 103525 (No 2)

1. [1]

   On 19 February 2026 I heard the defendant’s motion seeking security for costs in this matter. I disposed of that motion in favour of the plaintiff, and my reasons for so doing are published in Explore Building Management Services Pty Ltd v The Owners – Strata Plan 103525 [2026] NSWSC 121. In hearing that motion, it was necessary for me to give reasons for evidentiary rulings I made. This judgment contains those reasons.

Email Chain Between Parties’ Solicitors

1. [2]

   Mr Young of learned counsel for the defendant tendered an email chain passing between the solicitors for the parties in relation to a notice to produce served by the defendant on the plaintiff seeking copies of any current service contract having been entered into at any time when the service contracts with the defendant would have remained current. Mr Zhou, solicitor, for the plaintiff, objected on the basis of relevance.

2. [3]

   The emails provide that at 4.23pm the solicitor for the plaintiff, Mr Fang, said there was no such contract in his client's possession. He then sought to clarify that response at 8.45pm explaining that there had been a change of director in about November 2025. I interpolate that change of director was to appoint, or perhaps reappoint Mr Michael Lee, and the solicitor said that he did not have custody of historic service contract documents, and without saying that there were any current service contracts extant, the solicitor pointed out that they are sensitive and confidential business information, and that there was an objection to their production for the purpose of this motion.

3. [4]

   I think that those statements are relevant, perhaps not necessarily fully in the way that Mr Young puts it, but the inability of the plaintiff to produce service contracts since the termination of its contracts with the defendant is capable of being evidence supporting the need for security in as much as there is no evidence before the Court that the company from its own resources is well and truly able to meet the costs of the litigation if it is unsuccessful. Once a document is in, it is in for all purposes, and whether it goes as far as Mr Young submits in relation to the status of Mr Lee, is a matter that can be developed, if necessary, during closing address.

4. [5]

   I will admit the email chain.

Mr Matthew Woolley Affidavit of 13 January 2026

1. [6]

   My Young seeks to read the affidavit of Mr Matthew Woolley affirmed 13 January 2026. Mr Zhou objects on the basis that where the affidavit purports to give opinion evidence, the expertise upon which that opinion is formed is not disclosed. What ensued was a long debate about its admissibility. Mr Woolley is the currently chairperson of the defendant's strata committee. He also, it is apparent from his affidavit, has some expertise in information technology, and he describes himself as a head of Global Technical Support, but he does not identify the name of the organisation in which he holds that position.

2. [7]

   The posited relevance of Mr Woolley’s opinion on this application for security to costs is that it tends to show that the plaintiff's case is not strong, and he does that by relying upon his undoubted expertise, although that expertise is not fully identified and disclosed in the body of his affidavit. Mr Young has also taken me to collateral documents relied upon by the plaintiff as constituting admissions in respect of certain material facts germane to its case. The thrust of the argument is that if Mr Woolley’s evidence is accepted at trial, the authenticity of those admissions would seriously be called into question.

3. [8]

   I bear firmly in mind that I am dealing with an interlocutory application. I am not sitting to hear the matter at trial, nor am I required in the present context to make any findings of fact relevant to the plaintiff's cause of action or the defendant's defence one way or the other. Mr Zhou has argued strongly in relation to the lack of compliance with the rules in relation to expert evidence, and also has pointed out that the inference to be drawn from Mr Woolley’s evidence, taken at its highest, involves an allegation against a third party, not the plaintiff, of what might be serious misconduct, which at the trial would attract the application of section 140(2) of the Evidence Act 1995 (NSW) giving legislative effect to, as it does, the principle discussed in the well-known case of Briginshaw v Briginshaw (1938) 60 CLR 336

4. [9]

   As I have said it is not my role to make any final determination of fact. This is not the trial and there is force in Mr Zhou's objections. However, I think the material is relevant to an impressionistic assessment of the strength of the plaintiff's case in as much as I can say from Mr Woolley’s evidence, although it would not be admissible in this form at the trial, that there is material before me from which I could infer that at the trial there will be evidence available to the defendant which if accepted would call into question the authenticity of those admissions, and I put it no higher than that.

5. [10]

   There would be, of course, a serious question about the independence of Mr Woolley as an expert where, as here, his is the only expert evidence that was put forward given that he is, in effect, the client. That maybe a matter which would detract from the weight that might otherwise be given on account of his expertise. However, I will admit it not as evidence of the truth of the matters that he asserts, but as evidence in the limited sense that I have described in accordance with the provisions of section 136 of the Evidence Act 1995 (NSW).

6. [11]

   The affidavit of Matthew Woolley of 13 January 2026 is read over Mr Zhou's objection, but limited in the manner in which I have described in my reasons.