Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 4)

The plaintiff, Ceerose Pty Ltd, brought these proceedings challenging adjudications made in favour of the defendant, A-Civil Aust Pty Ltd, under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”).

In the usual way, Ceerose obtained interlocutory relief restraining A-Civil from enforcing the determination, pending Ceerose’s challenge to the determination upon payment into court of the adjudicated amount.

On 21 April 2023, Darke J, following judgments delivered on 20 March 2023 [1] and on 20 April 2023, [2] ordered that the adjudications be set aside as to certain amounts (“the Disallowed Amounts”) and be confirmed as to certain amounts (“the Confirmed Amounts”).

Ceerose has now filed a Notice of Appeal. The appeal is listed for hearing commencing on 19 July 2023.

On 5 May 2023, I made orders to the effect that the money Ceerose had paid into court equal to the Disallowed Amounts be paid out to it and that a judgment entered against Ceerose in favour of A-Civil pursuant to s 25 of the Act for the whole of the adjudicated amount be set aside.

I also heard argument in relation to a Notice to Produce served by Ceerose on A-Civil.

Ceerose served its Notice to Produce in aid of its pending application for a “Grosvenor stay” in respect of payment to A-Civil of the Confirmed Amounts. Ceerose’s contention is that, because of A-Civil’s financial position, such payment would be ultimately irrecoverable should Ceerose be held entitled to the Confirmed Amounts. That application is listed for hearing before Ball J on 29 May 2023.

I directed that the parties prepare a Redfern Schedule and, on 9 May 2023, circulated a version of that Redfern Schedule populated, in a column headed “Decision”, with my decision as to the various categories of documents sought. A copy of the Redfern Schedule is attached to these reasons.

Ceerose arranged for the matter to be restored to the list before me today because of a disagreement as to the terms of a confidentiality regime for production of confidential documents and as to a dispute concerning A-Civil’s response to Item 22 in the Redfern Schedule.

The difficulty that arose in relation to Item 22 appears to have been caused by my decision to delete the word “including” from the category of documents sought in the Notice to Produce.

A-Civil adduced evidence from Mr Geoffrey Campey, a Computer Forensics Investigator, who deposed that it would not be possible, as would be required by reason of the deletion of the word “including”, to segregate from A-Civil’s MYOB file the “raw financial and other data” referrable only to the balance sheet and profit and loss statements and financial statements referred to in Category 22.

Thus, Mr Campey deposed:

In the light of Mr Campey’s evidence, it appeared to me that the sensible course was simply to order that A-Civil produce to the plaintiff’s solicitors a copy of the whole of A-Civil’s current MYOB file in the form of a .myox file.

Accordingly, earlier today, I made this order:

Counsel for A-Civil foreshadowed A-Civil would seek to challenge the making of this order. I order that that order be stayed until 5.00pm tomorrow, 16 May 2023, to enable A-Civil to take that course.

My reasons for making the order at [14] are set out in the Redfern Schedule and in these reasons.

I have also been asked to give reasons for my conclusion concerning Category 10. My reasons for allowing that category are that I accepted the submissions made by Ceerose summarised under the heading “Plaintiff’s Position” in the Redfern Schedule.

There is also a dispute between the parties as to the confidentiality regime that should be adopted in relation to the documents to be produced by A-Civil.

Ceerose and A-Civil provided competing proposals concerning the confidentiality of the documents.

I make the following order:

In relation to Order (b), A-Civil objected to disclosure of the information of material to Mr Hume of Counsel on the basis that he is not retained by Ceerose in relation to the pending Grosvenor stay application. However, Mr Hume has been briefed for Ceerose in these proceedings and I see no reason why Senior Counsel for Ceerose should be prohibited from discussing the documents to be produced by A-Civil with Mr Hume as part of his preparation for the hearing of the Grosvenor stay application.

A-Civil also objected to the material being made available to any accounting or financial experts engaged by Ceerose. I see no reason why Ceerose should not seek accounting or financial expert assistance in relation to the matter, albeit on condition that such accounting or financial expert also give an undertaking as to confidentiality.

Ceerose did not object to A-Civil’s proposal for orders (c) and (d).

Orders (e) and (f) were proposed by Ceerose. They appear to me to be sensible, although I have made an adjustment to order (e).