Ng v Wisdom Properties Group Pty Ltd

The plaintiffs, Mr and Ms Ng, own a property in Glenmore Park. They bring these proceedings against the defendant, Wisdom Property Group, which constructed a home on the property pursuant to a building contract made on 17 December 2012. Mr and Ms Ng allege that there are structural defects in and damage to their house.

The proceedings were originally commenced in the NSW Civil and Administrative Tribunal and were removed to this Court in June 2020.

Mr and Ms Ng have served a Technology and Construction List Statement. Wisdom is yet to file its Technology and Construction List Response.

Wisdom contends that it is necessary for it to ascertain the correct site classification of the property to determine:

Wisdom has engaged a geotechnical engineer, Mr Peter Redman, to advise them on the correct site classification of the property.

Mr Redman has advised Wisdom that:

Were primary ground investigations required, they are likely to cost something in the order of $100,000.

In those circumstances, Wisdom has served a subpoena on Stockland Lensworth Glenmore Park Pty Ltd, the original developer of the “Glenmore Park Project”, part of which involved Mr Ng’s property.

By notice of motion filed on 25 September 2020, Stockland seeks to set aside the subpoena or, alternatively, restrict its scope.

The subpoena seeks production of six identified geotechnical reports [1] together with:

On behalf of Stockland, Ms Clare Roberts has sworn an affidavit in which she deposes to the steps Stockland would have to take to locate the documents sought.

In its submissions, Wisdom contended that, despite Ms Roberts’ evidence, the volume of materials that it would be necessary for Stockland to review “should not be excessive”, the location of six geotechnical reports sought “should also be straightforward”, and that the email communications sought “will not be difficult to locate”. However, these submissions do not engage with Ms Roberts’ evidence. The geotechnical reports sought date from between 1999 and 2011, and the reports, documents and correspondence sought is between a date rate of 1997 and 2020.

In those circumstances, I accept Ms Roberts’ evidence that it would take the time the subject of her evidence to locate the documents.

There are competing interests at play here. On the one hand, if Wisdom is not able to obtain the geotechnical reports it seeks, it will be necessary for it to conduct the primary ground investigation that Mr Redman has recommended. On the other hand, there is no evidence that Stockland still has, or is likely still to have in its possession, the six geotechnical reports referred to in the Summons. Nor is there any evidence as to what those reports are likely to contain and whether their production would in fact obviate the need for Wisdom to conduct primary ground investigations.

In my opinion, it would be oppressive to impose this obligation on Stockland. Further, the avowed purpose of the subpoena is not only to assist Wisdom defend the case brought against it by Mr and Ms Ng but endeavour to obtain evidence to justify a cross claim against Wisdom’s structural engineer.

This is not an appropriate use of the subpoena.

I order that the subpoena to produce filed 29 June 2020 served by the Defendant on Stockland Lensworth Glenmore Park Pty Ltd be set aside.

I order that the Defendant pay Stockland’s costs of its notice of motion of 25 September 2020.