Berhero Pty Ltd v Senibina Sentral Sdn Bhd

1. [1]

   This interlocutory judgment concerns two competing applications for discovery.

2. [2]

   The plaintiff/cross-defendant in the substantive proceedings underlying this judgment is Berhero Pty Ltd t/as Acuity Funding, incorporated in Australia. Ranjit Thambyrajah (Mr Thambyrajah) is the plaintiff’s managing and sole director. The plaintiff is represented by A Gander of counsel. The plaintiff relied on the affidavit of Mr Thambyrajah, dated 16 October 2024 (RT-A), on the affidavit of Lankan Bal, dated 22 October 2024, and on the affidavit of Christopher Elias Farah, the plaintiff’s solicitor, dated 18 March 2025.

3. [3]

   The defendants/cross-claimants are:

   1. (1)

      Senibina Sentral Sdn Bhd, incorporated in Malaysia;

   2. (2)

      Senibina Murni Sdn Bhd; incorporated in Malaysia;

   3. (3)

      Padu Panglima Sdn Bhd; incorporated in Malaysia;

   4. (4)

      Dato’ Sri Anne Teo;

   5. (5)

      Datuk Chris SW Low; and

   6. (6)

      Lt Gen (R) Dato’ Sero Panglima Zaini Bin HJ Mohd Said.

4. [4]

   The defendants are collectively referred to as the defendants.

5. [5]

   The defendants relied on three affidavits of Marc Richard Baddams, the defendants’ solicitor, dated 18 July 2023, 13 March 2025, and 28 March 2025. The defendants are represented by D A Hughes of counsel.

6. [6]

   The parties relied on a joint court book (Exhibit A).

Background

1. [7]

   The defendants are engaged in a large-scale development of land in central Kuala Lumpur. In order to fund this development, the defendants sought the services of the plaintiff, who conducts a commercial brokerage business (Acuity Funding).

2. [8]

   Mr Thambyrajah says that he holds various qualifications in mortgage broking, finance and real estate. He also holds an ‘Associate Diploma Divinity and Missions’ from Sydney Missionary and Bible College. In April 2024 he says that he was awarded a PhD in Economics by the University of Burundi, located in Bujumbura, Burundi.

3. [9]

   The principal agreements were apparently entered into in April and May of 2019, with variations apparently concluded in early 2020. For the purposes of this application only, they comprise the following documents:

   1. (1)

      Loan Term Sheet, executed on or about 18 April 2019 (CB25-31) (Loan Term Sheet);

   2. (2)

      Costs Agreement associated with the Loan Term Sheet, executed on or about 18 April 2019 (CB32-41) (Costs Agreement);

   3. (3)

      Deed of Variation in Respect of the Agreement, executed on or about 17 January 2020 (CB47-49) (Deed of Variation); and

   4. (4)

      Commission Letter executed 27 March 2020.

4. [10]

   Under the terms of the agreement, the plaintiff was to secure for the defendants an offer for funding amounting to approximately USD 210,000,000 or Malaysian Ringgit 535,000,000.

5. [11]

   Consideration (styled ‘brokerage fee’) for the plaintiff’s services was in the main composed of payment of

6. [12]

   Clause 4 of the Costs Agreement is central to this dispute. It stipulates when the consideration described above falls due. It relevantly states:

7. [13]

   Counsel for the defendants summarised the obligation as ‘the idea is that if I get you a piece of paper you have to pay me 1.5% plus 24% per annum interest’ (T28 [22]-[23]).

8. [14]

   On or about 3 July 2019, the defendants were provided with a funding proposal from Global Wise Investments Pte Ltd (Global Wise) purporting to lay out the terms of a potential loan of USD 210,000,000 to the defendants (CB42-46). On 12 February 2020, the defendants were provided with a second proposal from Global Wise in similar terms (CB50-57). On 10 March 2020 defendants were provided with a third proposal from Global Wise also in similar terms (CB60-68). The defendants never received any funds from Global Wise.

9. [15]

   On or about 20 July 2021, the plaintiff issued an invoice to the defendants for the Brokerage Fee (USD 3,150,000). On 6 December 2021, the plaintiff reissued the invoice and also a letter of demand.

10. [16]

    According to a search (CB558-563) obtained from Singapore’s Accounting and Corporate Regulatory Authority (analogous to the Australian Securities & Investments Commission), Global Wise had on 14 July 2023 a paid-up share capital of SGD 100 (CB559). Global Wise had two directors, Bal Lankan, an Australian citizen and deponent, and Felicia Tham Li Ling (Ms Tham), a Singaporean citizen.

11. [17]

    This search does not list Global Wise as a lender, under the title ‘Business Activities’ it’s ‘Primary Activity’ is listed as ‘WHOLESALE TRADE OF A VARIETY OF GOODS WITHOUT A DOMINANT PRODUCT’ (CB558). A private investigator’s report (CB582–593) commissioned by the defendants and conducted by EXELLAR (Malaysia) Sdn Bhd stated that, according to sources, ‘[Global Wise] appeared to be managed remotely from Australia’ (CB587). Another human source mentioned in the investigative report said that Global Wise

12. [18]

    On 18 April 2022, Singaporean solicitors of TSMP Law Corporation (TSMP) acting for the defendants seem to have hand delivered a letter to the offices of Global Wise to the attention of Bal Lankan and Ms Tham (CB575-577).

13. [19]

    Following this email, two phone calls occurred between a solicitor of TSMP and Ms Tham (22 April 2022 and 26 April 2022) (CB579).

14. [20]

    On 27 April 2022, Ms Tham responded by way of email to TSMP in the following words (CB578):

15. [21]

    On 29 April 2022, solicitors from TSMP responded by email to the email of Ms Tham (CB579-580).

16. [22]

    On 10 May 2022, Lankan Bal wrote to TSMP informing them that the defendants lost the benefit of the proposed funding because they failed to meet certain conditions precedent (CB581).

Pleading framework

1. [23]

   It is now necessary to briefly set out the pleading framework.

2. [24]

   On 5 May 2023, the plaintiff filed an amended Statement of Claim (ASOC). It seeks relief of over $6,500,000 for breach of contract, primarily composed of the Brokerage Fee and interest (at 2% per month as stipulated in cl 4 of the Costs Agreement) (ASOC [30]-[36]). The plaintiff also pleads that it is entitled to have 3.5% of the shares in the first, second, and third defendants transferred to it (ASOC [37]).

3. [25]

   On 31 May 2023, the defendants filed a Defence to the amended Statement of Claim (D-ASOC) where they pleaded that:

4. [26]

   On 21 November 2022, the defendants filed a ‘First Cross-Claim Statement of Cross-Claim’ (XC) seeking that the documents listed at [8] of this judgment, to the extent that they are operative at law be declared of no effect from their inception under ss 237 and 243 of the ACL (XC [1]).

5. [27]

   On 3 April 2023, the plaintiff filed a Defence to the XC (D-XC). It resisted the defendants’ substantive pleadings but pleaded in the alternative that if the defendants succeeded in their claim under the ACL, Global Wise was a concurrent wrongdoer (and hence apportionably liable) under s 87CB(3) of the Competition and Consumer Act 2010 (Cth) (D-XC [5]). It also sought to have any damages awarded for misleading or deceptive conduct reduced for contributory fault (D-XC [5b]).

6. [28]

   On 14 March 2025 the defendants filed a Notice of Motion (N/M-D) seeking discovery under r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). They sought discovery in several supercategories relating to the issues as pleaded. They sought many documents to be discovered in their native digital format. Copies of some those documents have already produced in an approximately 6,000-page exhibit of the plaintiff’s (referred to in the parties’ court documents as RT-1). There is a question of whether those documents produced in the exhibit are ‘excluded documents’ for the purposes of Pt 21 Div 1 of the UCPR.

7. [29]

   On 18 March 2025 the plaintiff filed a Notice of Motion (N/M-P) seeking discovery under r 21.2 UCPR discovery in a similar manner, that is, organised by reference to issues identified by the pleadings. However, it also recognised categories of documents.

8. [30]

   The parties have, by agreement, limited the documents sought on discovery. The issues that remain for discovery are whether discovery of certain limited categories should be ordered and whether the order of other categories should be framed by a time period. It is necessary to have regard to the fact that the power invoked is to be exercised so as to facilitate the just, quick, and cheap resolution of the real issues in the proceedings: Civil Procedure Act 2005 (NSW) s 56.

9. [31]

   I will deal in turn with each category that is still in dispute, then I will briefly summarise the parties’ contentions, followed by my resolution.

Law of discovery

1. [32]

   Rules 21.1­­­–21.8 of the UCPR govern discovery. The relevant sections read:

Defendants’ Notice of Motion

1. [33]

   The N/M-D was first in time so I will deal with it first. By the time of the proceedings, the categories still sought by the defendants were summarised in an Aide Memoire (CB739-741). That Aide Memoire was divided into an Annexure A and an Annexure B; the categories listed in Annexure A were contested by the plaintiff whereas Annexure B was agreed except as to the native format issue. When dealing with the N/M-D, ‘A1’ will refer to category 1 of Annexure A, and ‘B1’ will refer to category 1 of Annexure B and in seriatim to the rest of the documents sought in Annexure B.

2. [34]

   Annexure B is as follows. The asterisks indicate that the native format of the documents is sought.

3. [35]

   Annexure A is as follows. These categories are grouped under headings in bold. A2 is no longer pressed (T23 [44]). A4(a) is not pressed (T25 [6]). A6, A10, A16 and A17 are agreed to. These categories have been omitted from the list below.

4. [36]

   As will become apparent, the plaintiff resists many categories in Annexure A on the basis that they are redundant and caught by the agreed Annexure B (T51 [7]-[10]). In response, the defendants say that to the extent that there is any overlap, ‘there’s no prejudice… the prejudice is minimum’ (T62 [10]-[12]).

5. [37]

   The defendants say that documents from these categories shed light on whether the plaintiff was of the view that Global Wise was a genuine lender (T41 [48]-[49]).

6. [38]

   The plaintiff submitted that all of the relevant correspondence and supporting documents sought by A1 will be caught by B1 and A1 will capture much that is irrelevant (T51 [44]-[48]): “[A1] is redundant, but potentially captures irrelevant documents, and so it’s just unnecessary and shouldn’t be allowed” (T52 [7]-[8]).

7. [39]

   A1 is significantly broader than B1. B1 captures only communications between the plaintiff and Global Wise. A1 seeks “[a]ll Documents created by the plaintiff, or relied on by the plaintiff, in the course of procuring each Funding Proposal.” It is my view that any surplus of documents caught by A1 over B1 will go centrally to the defendants’ claim for breach of contract and for misleading or deceptive conduct.

8. [40]

   As to breach of contract, it will shed light on the question of whether the plaintiff fulfilled the obligations imposed by the ‘Genuine Lender Term’, which the defendants say arises by implication (D-ASOC [17]) — for example, an internal memorandum analysing Global Wise’s capacity to produce USD 210,000,000. The same documents will also shed light on the question of whether the plaintiff engaged in misleading or deceptive conduct.

9. [41]

   I agree that there will be a large overlap between B1 and A1, it is my opinion that the surplus captured by A1 will likely be relevant to and probative of the defendants’ cross-claim.

10. [42]

    Hence, I make an order for discovery in accordance with the defendants’ Notice of Motion for category A1.

11. [43]

    Foong & Partners were a Singaporean law firm commonly retained by the parties. It was engaged by the plaintiff to draft the loan agreements. The defendants allege that this retainer of Foong & Partners by the plaintiff amounted to a representation as to the genuineness of the loan proposal (T33 [34]-[40]). Because they are commonly retained, the defendants say that there cannot be any issue of client legal privilege (T44 [26]-[27]).

12. [44]

    The plaintiff submitted that A3 is also redundant, as the same documents are captured by B1 (T52 [29]-[40]). The defendants submitted that

13. [45]

    While there may be a large overlap, the communications between the plaintiff and its solicitors relating to the funding proposal are relevant to the substance of the defendants’ cross-claim. For example, there may be a document from Foong & Partners suggesting that the plaintiff take certain precautionary steps or inquiring of them as to Global Wise’s lending capacity. Such a document would not be caught by B1 and would clearly be highly probative of the defendants’ case.

14. [46]

    In Hancock v Rinehart [2016] NSWSC 12 at [7] Brereton J stated:

15. [47]

    Here, the plaintiff has not attempted to establish privilege over any of the Foong & Partners documents. For this reason, it is my view that for the purposes of this proceeding the documents caught by A3 are not protected by client-legal privilege.

16. [48]

    I make an order that discovery of the documents sought in A3 is to be given by the plaintiff.

17. [49]

    The plaintiff submitted that A4(b) could be agreed, but that it is ‘plainly redundant because it’s a subset of category B1’ (T52 [39]-[40]).

18. [50]

    As A4(b) is a subset of category B1, I make no order for discovery of documents in A4(b).

19. [51]

    The plaintiff says that A5 seeks irrelevant documents (T52 [46]-[47]).

20. [52]

    I do not agree with the plaintiff’s submission. However, A4 has fallen away and, in any event, A5 also seems to be a complete subset of B1.

21. [53]

    Hence, I make no order for discovery in accordance with A5.

22. [54]

    The defendants submitted that phone records are necessary because of the paucity of documentary evidence: “we actually need to know how many times these people phone each other in the period because there’s just nothing else” (T45 [10]-[12]). The plaintiff resists this contention saying that “there is an enormous volume of documentary material in evidence in this case” (T50 [15]-[16]) with the total number of documents being “much greater than 469” (T50 [34]-[35]). In response, the defendants say that “there are important gaps at the critical time” (T62 [16]), “where it matters … there’s nothing” (T62 [13]-[16]); and “some of the 6000 pages might generously be called guff” (T64 [48]-[49]).

23. [55]

    The plaintiff says that A7 is also unnecessary because “if there are file notes of telephone calls between Mr Thambyrajah and Mr Bal … they will be produced under B1” (T53 [5]-[8]). It goes on:

24. [56]

    In response, the defendants say that they are not asking the plaintiff to prepare a list or create any documents (T62 [36]-[37]) as “usually a phone bill contains a list” (T62 [37]-[38]).

25. [57]

    I agree with the defendants’ submissions. The frequency and timing of phone conversations between Mr Thambyrajah and Lankan Bal are relevant and will assist in understanding the interactions leading to provision of the offers. The phone records and any notes of them could be relevant to ascertaining whether the plaintiff discharged its obligation under the proposed Genuine Lender Term and whether the plaintiff engaged in misleading or deceptive conduct.

26. [58]

    An order for discovery of documents in category A7 will be made.

27. [59]

    The plaintiff says that if the five messages preceding and following the one extracted are relevant, they will be produced under B1, and so A8 is unnecessary (T53 [22]-[24]).

28. [60]

    I agree with the plaintiff’s submission. It is noted that the messages, if relevant, will also likely be captured by B7.

29. [61]

    Hence, an order for discovery of documents in category A8 will not be made.

30. [62]

    As to the supposed funding of the ‘African Power Industry’, the defendants seek documents which will help them understand if there is any documentary evidence to support the belief that Global Wise or Lankan Bal was responsible for this funding (T45 [33]-[35]).

31. [63]

    In his affidavit dated 16 October 2024, Mr Thambyrajah deposed:

32. [64]

    The defendant says to the extent that the documents sought are under A9 are relevant, they will be caught by B1, so it too is irrelevant (T53 [28]-[33]).

33. [65]

    It is not certain that A9 is a subset of B1, however, I note that I will be making an order in the terms of A1 as proposed. A9 is a sub-set of A1 and so A9 is now unnecessary.

34. [66]

    Hence, an order for documents in category A9 will not be made.

35. [67]

    The main contention regarding the categories relevant to penalties relates to the appropriate time periods. The defendants say that since the Commission Letter was the last apparent contractual document executed by the parties, that is the date that the inquiry as to penalties ceases (T31 [16]-[17]). The defendants are looking for financial statements and management accounts to determine whether an interest rate of 24% per annum is a penalty clause (T31 [34]-[36]). They rely on Paciocco v Australia and New Zealand Banking Group Ltd (2018) 258 CLR 525 (‘Paciocco’) which they say is authority for the proposition that determination of whether a contractual obligation is unenforceable as a penalty involves an analysis of the obligee's internal structure and operating costs: “what's needed to understand penalty is the documents that will give my client a good understanding of the plaintiff's business model” (T46 [8]-[11]). In oral submissions it also relied on Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 (‘Andrews’) to the same effect.

36. [68]

    The plaintiff says that the Variation Deed or Commission Letter are irrelevant to the determination of the penalty issue because there is no allegation that there are penalty provisions in the Variation Deed or Commission Letter (T54 [16]-[19]). As was submitted orally, “the question of whether there's a penalty in the cost agreement is a matter of construing the cost agreement at the time it was entered into, and that is on 18 April 2019” (T54 [20]-[22]).

37. [69]

    The defendants first agreed with and accepted this contention (T54 [31]-[33]) but later reneged. The defendants say that it is an issue in the case whether the later documents (the Variation Deed and Commission Letter) form part of the parties’ contract and therefore bear on the question of a penalty (T63 [12]-[18]). The defendants also seek discovery over the longer time frame on another basis, namely that the date of the final contractual execution is not determinative because the inquiry as to whether a contractual obligation is penal can range broadly over the business. The relevant questions are: “What are the losses they [the plaintiff] suffer if someone pays a commission late? What are the losses they suffer from lateness? That’s what the law of penalties is concerned with” (T63 [41]-[44]).

38. [70]

    In Dunlop Pneumatic tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 (‘Dunlop’) at 86-87, Lord Dunedin stated:

39. [71]

    This view has found support in many Anglo-Australian judgments (see D Heydon, Heydon on Contract (Reuters, 2019) at 979 n 497 (‘Heydon on Contract’)). Dunlop was considered extensively in both Andrews and Paciocco but was not controverted in either decision. Without deciding the question of proper time of construction, which was not argued before this Court, and which is complicated by the allegation of multiple relevant contractual documents, it may be enough to look to what the Privy Council said in Philips Hong Kong Ltd v AG (Hong Kong) (1993) 61 BLR 49 at 59:

40. [72]

    It is my view therefore that although not determinative, far from being irrelevant, documents recording the plaintiff’s structure and expenditure after entry into the contract may be highly probative of the facts necessary to dispose of the penalty question. However, ultimate determination of this matter will fall elsewhere.

41. [73]

    For this reason, whatever the case may be, I do not accept that the relevant time period is by necessity limited in the way urged by the plaintiff.

42. [74]

    The plaintiff submits that the period in A11 should end on 18 April 2019 (T54 [25]-[26]). The plaintiff proposes limiting the range to the 2019 financial year, being 1 July 2018 to 30 June 2019 (T55 [8]-[16]).

43. [75]

    An order for A11 in the terms sought by the defendants will be made.

44. [76]

    A12 seeks all the plaintiff’s financial statements over three financial years. The plaintiff consents to providing the documents for the 2019 financial year (T55 [31]-[33]). The plaintiff states that documents relating to the 2020 financial year come after the execution of the contract and so are irrelevant (T55 [33]-[35]).

45. [77]

    An order for A12 in the terms sought by the defendants will be made.

46. [78]

    A13 seeks all the plaintiff’s tax returns over three financial years. The plaintiff consents to providing only the tax returns for the 2019 financial year (T55 [33]). It says that tax returns for the 2020 financial year are irrelevant (T55 [33]-[35]).

47. [79]

    An order for A13 in the terms sought by the defendants will be made.

48. [80]

    The plaintiff resists A14 in its entirety. As it refers to all clients and is not limited by time, it captures far more documents than is necessary for the defendants to run their case (T55 [37]-[43]).

49. [81]

    It is likely that the number of documents caught by this category, if any, are few. It risks generating irrelevant documents because it seeks, it seems to me, disclosure of the plaintiff’s subjective view on one of its contractual terms. The objective theory of contract which is embodied by the common law says that such views are irrelevant.

50. [82]

    The question of whether a contractual clause is penal is one which is answered by reference to objective matters.

51. [83]

    Insofar as the category seeks analyses of the plaintiff’s financial and business structure (either by the plaintiff itself or a third party), it would be speculation to say whether or not such documents exist. However, such a document may be of assistance to the defendants’ case and is therefore probative.

52. [84]

    An order for A14 in the terms sought by the defendants will not be made. In lieu, the order will be confined to any analyses of the plaintiff’s financial and business structure which cast light on the place of the interest rates which are from time to time contracted to accrue on unpaid loans.

53. [85]

    The defendants seek discovery of time sheets to determine what work the plaintiff did for them.

54. [86]

    The plaintiff opposes this category on the basis that it is not limited by time (T55 [44]-[45]). It seeks “all documents” in circumstances where the plaintiff does not use time sheets in its business, so none exist (T56 [1]-[12]). This category is too broad even if time limited (T56 [14]-[17]). Such a broad class of discovery is unnecessary to confirm that work was done (T56 [21]-[30]). The plaintiff says that this category in effect “seeks every single document” the plaintiff has (T56 [6]-[7]).

55. [87]

    The defendants accepted that April 2019 to July 2021 would be suitable to them (T46 [32]-[38]). April 2019 was when the agreement was first signed and July 2021 is the point at which, to use counsel’s words, the defendants realised they “had been taken for a ride” (T46 [37]).

56. [88]

    While A15 is cast in very broad terms and would render other categories, or parts of other categories (such as A1, A3, and many of the categories in Annexure B) redundant, and while the plaintiff says that it does not use time sheets, it would otherwise be difficult to ascertain what work the plaintiff did for the defendant and on what basis it charged the defendant.

57. [89]

    With the limitation of the time period from 1 April 2019 to 31 July 2021, I will make an order in accordance with A15.

58. [90]

    The plaintiff resists the request for the native format documents on the grounds that it would be burdensome. It says that many of the documents sought have already been produced in the plaintiff’s 6,000-page exhibit. The plaintiff states (Plaintiff’s Written Submissions in Response [10]-[12]):

59. [91]

    However, the plaintiff does not resist production of the native format documents which have not already been produced (T56 [39]-[40]); and it wouldn’t be disposed to resist a notice to produce seeking the production of “critical” documents in native format (T57 [16]–[19]).

60. [92]

    The defendants say that the plaintiff’s analysis of the process and estimation of costs are curious: “if the process was done in the normal way, none of these costs would need to be incurred … one would not need to spend much time looking at the exhibit” (T47 [23]-[24], [32]-[33]). The defendants insist that they do not ask for the native format of all documents in the exhibits to the affidavits, but only of documents which are discoverable (T64 [37]-[39]).

61. [93]

    As a matter of principle, it cannot be the case that a party be able effectively to immunise themselves from discovery of documents in their ‘native format’ by anticipating any such order and handing over physical documents by way of affidavits, exhibits or other means (I do not suggest that the plaintiff had done this).

62. [94]

    The significant matter guiding the court’s discretion here is the need to exercise the power to order discovery with a view to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

63. [95]

    The defendants’ submissions are persuasive. On the one hand, if the plaintiff attempts to give discovery by reference and having regard to the exhibit, it may very well be burdensome on account of the amount of time that would be consumed. On the other hand, if the plaintiff starts afresh the process of giving discovery, I do not see there being any greater burden providing the documents in their digital native format as opposed to hardcopy.

64. [96]

    If the plaintiffs seem to be aware of the identity of the native format documents, they should produce them in that form. These documents need to be produced on discovery.

Plaintiff’s Notice of Motion

1. [97]

   The N/M-P was filed 4 days after the N/M-D and is similarly formatted. However, it is not divided into an ‘agreed category’ and a ‘contested category’. The original list of categories sought by the plaintiff were not limited by time, and the plaintiff still seeks discovery without a time limitation (T58 [39]-[40]); however, it has drafted the following list of categories in the alternative, which are all limited by time except for specific species of documents described in the subcategories (noted ‘(a)’, ‘(b)’ and so on). Orders will not be made for time periods that go beyond the plaintiff’s suggestion but will rather be limited by the time periods below.

2. [98]

   The plaintiff says that this alternative request where the general category is limited but for specific species of document “achieves a middle ground between the position [it] originally proposed and address some of [the defendants’] concerns” (T59 [6]-[7]).

3. [99]

   The defendants take issue with the structure of the plaintiff’s request. It notes that the plaintiff seeks discovery both by issue and by category, and that the categories listed under each of the five chapeaux in their terms exceed the bounds set by the chapeaux: “the listed categories are broader than the issue described in the chapeau of each category”. The defendants go on:

4. [100]

   The simultaneous and collocated prayers for discovery, on the one hand based on issue, and on the other hand based on category, especially where the categories in terms are sometimes broader than the issues indicated in the chapeaux, are somewhat confusing.

5. [101]

   It is my view that the plaintiff’s categories for discovery be disaggregated for ease of understanding. Chapeaux 1–5 which identify documents by reference to issue should not be read as limiting the scope of each of the sub-categories (a), (b), (c) and so on. Although this produces more ‘tranches’ of discovery, it still does not exceed the defendants’ ‘tranches’, so I see no problem in taking this course, especially where it enhances clarity. It will, therefore, also expedite the process of discovery.

6. [102]

   It will appear that in response to the time frames suggested by the defendants as to the five chapeaux, the plaintiff has simply returned the same dates with a six-month extension on either side:

7. [103]

   These reasons for an extension of time are not persuasive and seem somewhat arbitrary. The tranches of discovery are already relatively complex and detailed. The plaintiffs have in substance accepted that there should be a time frame on the five chapeaux (that is, excluding the subcategories) and have not given good reason why the time period acceded to by the defendants should be lengthened, arbitrarily, by a year except that the defendants’ proposed time periods are quite narrow.

8. [104]

   For this reason, in each of the five chapeaux, the defendants’ proffered time frames will be accepted.

9. [105]

   Any potential prejudice occasioned by this broad-brush approach is dramatically minimised by the fact that, as will become apparent, many of the subcategories which identify the critical documents are unlimited as to time.

10. [106]

    As to the chapeau of category 1, it seems to me that the defendants say that the period of 25 February 2019 to 18 April 2019 is appropriate. The plaintiff suggests 25 August 2018 to 25 October 2019 is proper (being an extension of 6 months on either side). The defendants’ suggestion of 25 February 2019 to 18 April 2019 is accepted.

11. [107]

    The defendant accepts that subcategories (a) and (d) be unlimited as to time, it says that (b) and (c) should be limited (T60 [31]-[40]).

12. [108]

    The documents sought by (b) (‘any board minutes or resolutions of the First, Second and Third Defendant regarding the entry into the Agreement’) are central to one of the key issues in the dispute being the capacity of the fourth to sixth defendants to bind the first to third defendants and the efficacy of any attempt. For this reason, the documents caught by 1(b) will not be limited as to time.

13. [109]

    Subcategory (c) is likely to produce much that is ultimately irrelevant. The risk of returning irrelevant material increases the further from the material time the period extends. For this reason, I accept the defendants’ suggestion of limitation to the period of time from 25 February 2019 to 18 April 2019.

14. [110]

    As to the chapeau of category 2, the defendants say that the period of 3 December 2019 to 17 January 2020 is appropriate. The plaintiff suggests 3 June 2019 to 17 July 2020 is proper (being an extension of 6 months on either side). The defendants’ suggestion of 3 December 2019 to 17 January 2020 is accepted.

15. [111]

    The defendant urges that subcategories (a) and (b) be limited as to time but accepts that subcategory (c) may be unlimited (T61 [21]-[22]).

16. [112]

    The documents sought by subcategory (a) (‘any board minutes or resolutions of the First, Second or Third Defendants regarding the entry into the Variation’) are central to the issues in dispute. It is imperative that these documents are disclosed. Therefore, subcategory (a) will be unlimited as to time.

17. [113]

    Subcategory (b) is likely to produce much that is ultimately irrelevant. However, there may be important documents captured by the subcategory. To strike a balance between irrelevant and relevant documents, subcategory (b) is limited to the period of 3 December 2019 to 17 January 2020.

18. [114]

    As to the chapeau of category 3, the defendants say that the period of 24 March 2020 to 27 March 2020 is appropriate. The plaintiff suggests that 24 September 2019 to 27 September 2020 is proper (being an extension of 6 months on either side). The defendants’ suggestion of 24 March 2020 to 27 March 2020 is accepted.

19. [115]

    The defendant urges that subcategories (a) and (b) be limited as to time but accepts that subcategory (c) may be unlimited (T61 [21]-[22]).

20. [116]

    As above, the documents caught by (a) are likely to be highly probative of the plaintiff’s case. Subcategory (a) will be unlimited as to time.

21. [117]

    As above, subcategory (b) is likely to produce much that is ultimately irrelevant. However, there may be important documents captured by the subcategory. To minimise prejudice on both sides, subcategory (b) is limited to the period of 24 March 2020 to 27 March 2020.

22. [118]

    As to the chapeaux of categories 4 and 5, the parties agree that the time period of 3 July 2019 to 20 August 2020 is reasonable. It is the above period for which discovery is to be given.

23. [119]

    As to the subcategories of documents sought within categories 4 and 5, the plaintiff seeks that they not be limited as to time. The defendants seek time limits. However, each of subcategories 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 5(a) and 5(b) are limited by reference to the occurrences and documents intimately connected both in theme and in time with the proceedings. Therefore, there does not seem to me to be any difference between limiting the time period or making the order unlimited as to time.

24. [120]

    Orders for subcategories 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 5(a) and 5(b) will be made in the terms submitted by the plaintiff, that is, unlimited as to time.

Costs

1. [121]

   Costs are discretionary. Normally, costs follow the event. As both parties have had some success and some failures in seeking discovery, it is my view that the appropriate order for costs is that costs be costs in the cause.

Orders

1. [122]

   The Court orders that:

   1. (1)

      As to the defendants’ lists of categories, the plaintiff is to give discovery to the defendants in the terms sought by the defendants in A1, A3, A6 (agreed), A7, A10 (agreed), A11, A12, A13, A15 (for the period from 1 April 2019 to 31 July 2021), A16 (agreed), A17 (agreed) and in the terms of all the categories in Annexure B (agreed). As to A14, the plaintiff is to give discovery to the defendants of any analyses of the plaintiff’s financial and business structure which cast light on the place of the interest rates which are from time to time are agreed to accrue on unpaid loans.

   2. (2)

      Where sought by way of asterisk, the plaintiff is to produce the documents for which discovery has been ordered in native format.

   3. (3)

      As to the plaintiff’s list of categories:

   4. (4)

      Both parties are to give discovery within 28 days.

   5. (5)

      Costs of the defendant’s Notice of Motion filed 14 March 2025 are costs in the cause.

   6. (6)

      Costs of the plaintiff’s Notice of Motion filed 18 March 2025 are costs in the cause.