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Category: Procedural rulings

Parties: Ballina Island Developments Pty Ltd (Plaintiff)
Stephen Peter Hadler (First Defendant)
Mark John Stephenson (Second Defendant)
Colin Michael George (Third Defendant)
Alison Jane Muggleston (Fourth Defendant)
Catherine Maree Armstrong (Seventh Defendant)
Steven Boyd Armstrong (Eighth Defendant)
Thomas O’Brien (Ninth Defendant)
Ryan Joseph Oud (Tenth Defendant)
Sarah Jane Oud (Eleventh Defendant)
Trent John Hadler (Eighteenth Defendant)
Christopher James Muldoon (Nineteenth Defendant)
Sandra Gai Muldoon (Twentieth Defendant)
Stephen Thomas Tancred (Twenty Third Defendant)
Kylie Jayne Tancred (Twenty Fourth Defendant)
Evan James Harding (Twenty Seventh Defendant)
Clara Louise Harding (Twenty Eighth Defendant)
Marcus Anthony Da Silva (Twenty Ninth Defendant)
Elizabeth Anne Da Silva (Thirtieth Defendant)
Justin Edward Robert Ingram (Thirty First Defendant)
Clare Charlotte Ingram (Thirty Second Defendant)
Matt Richardson (Thirty Third Defendant)
Shae Patrick Hall (Thirty Fourth Defendant)
Jessica Joan Broadhurst (Thirty Fifth Defendant)
Noreen Ann Bensley (Thirty Sixth Defendant)
Sharon Elizabeth King (Fortieth Defendant)
Michael John King (Forty First Defendant)
LMH 3 Pty Ltd (Forty Second Defendant)
Rachel Lea Fysh (Forty Third Defendant)
John Ashley Barnes (Forty Fifth Defendant)
Rita Barnes (Forty Sixth Defendant)
Nutchareen Paiyaphosri (Forty Seventh Defendant)
Vicki Maree Kelly (Forty Eighth Defendant)
Timothy James Pobjoy (Forty Ninth Defendant)
Michael John Bell (Fiftieth Defendant)
Susan Louise Bell (Fifty First Defendant)
Sean Stephen Davy (Fifty Second Defendant)
Anita Golden Davy (Fifty Third Defendant)
Laura Rachel Jacobsen (Fifty Fourth Defendant)
Jared Wayne Jacobsen (Fifty Fifth Defendant)
Samuel David Capel Green (Fifty Eighth Defendant)
Kathryn Jayne Green (Fifty Ninth Defendant)
Bradley James Heard (Sixtieth Defendant)
Nicole Jenai Wallace (Sixty First Defendant)
Garry John Marshall (Seventy First Defendant)
Anna Maree Marshall (Seventy Second Defendant)
Martin Property Developments Pty Ltd (Seventy Third Defendant)
Samuel Alexander Hauville (Eightieth Defendant)
Marcelle Elva Hauville (Eighty First Defendant)

Representation: Counsel:
J Knackstredt (Plaintiff)
P Newton SC (Defendants)
Solicitors:
Macpherson Kelley (Plaintiff)
Clarissa Huegill & Associates t/as Conveyancing Plus (Defendants)

File Number(s): 2025/449539

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: These proceedings were commenced by Ballina Island Developments Pty Ltd seeking leave under s 66ZS of the Conveyancing Act 1919 to rescind contracts for the off-the-plan sale of land within a proposed subdivision at Lennox Head. The defendants are the purchasers named in the contracts in question.

2. Section 66ZS provides relevantly as follows:

66ZS Rescission under sunset clauses

…

(3) A vendor may rescind an off the plan contract under a sunset clause, but only if—

(a) each purchaser under the contract, at any time after being served with the notice under subsection (4), consents in writing to the rescission, or

(b) the vendor has obtained an order of the Supreme Court under this section permitting the vendor to rescind the contract under the sunset clause, or

(c) the regulations otherwise permit the vendor to rescind the contract under the sunset clause.

(4) It is a term of an off the plan contract that a vendor who is proposing to rescind the contract under a sunset clause must serve each purchaser under the contract notice in writing at least 28 days before the proposed rescission that specifies why the vendor is proposing to rescind the contract and the reason for the sunset event not occurring by the sunset date.

(5) A sunset clause cannot automatically rescind an off the plan contract and, if it purports to do so, it is to be read as if it instead permits the contract to be rescinded on or after the sunset date in accordance with this section.

(6) The Supreme Court may, on the application of a vendor under an off the plan contract, make an order permitting the vendor to rescind the contract under a sunset clause, but only if the vendor satisfies the Court that making the order is just and equitable in all the circumstances.

(7) In determining whether it is just and equitable in all the circumstances, the Court is to take the following into account—

(a) the terms of the off the plan contract,

(b) whether the vendor has acted unreasonably or in bad faith,

(c) the reason for the sunset event not occurring by the sunset date,

(d) the likely date on which the sunset event will occur,

(e) whether the subject lot has increased in value,

(f) the effect of the rescission on each purchaser,

(g) any other matter the Court considers to be relevant,

(h) any other matter prescribed by the regulations.

…

3. The defendants have issued subpoenas to Credit Connect Group Pty Ltd, ACN 002 451 827 Pty Ltd and Westpac Banking Corporation and have given a notice to produce to the plaintiff. By its notice of motion filed on 4 June 2026, the plaintiff seeks orders setting aside the notice to produce pursuant to UCPR 34.2 and/or s 61 of the Civil Procedure Act 2005 and the subpoenas pursuant to UCPR 33.4. Similar principles apply in each case: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [12]-[15].

Plaintiff’s submissions

4. The plaintiff made the following submissions.

5. First, Practice Note SC Eq 11 applies to these proceedings. It provides that disclosure cannot be ordered unless it is “necessary”, and, where it is sought prior to the service of evidence, only in “exceptional circumstances”. The plaintiff has not yet served all of its evidence. The defendants have so far not served any.

6. The term “exceptional circumstances” means something that is not regularly, routinely or normally encountered but is out of the ordinary or unusual: Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458 at [19]‑[20]; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue*; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue* [2012] NSWSC 913 at [8]-[9], [12]-[17]. This could be where, for example, the documents are necessary for the fair preparation of evidence for trial: Danihel v Manning [2012] NSWSC 556 at [16].

7. There is no evidence of exceptional circumstances here, nor any indication from the defendants as to what they might be. Broadly speaking, the documents sought relate to the financing arrangements entered into by the plaintiff with respect to the proposed development. It is not clear how that material can have an impact upon the evidence which the defendants are required to serve, much less an impact which would rise to the level of exceptional circumstances.

8. It is well-established that a subpoena, or a notice to produce, cannot be used to circumvent the requirements of the Practice Note. Such a subpoena or notice to produce may properly be regarded as an abuse of process: The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [23]‑[24]; Rinehart v Rinehart [2018] NSWSC 1102 at [53]; Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382 at [44]-[48].

9. The notice to produce and the subpoenas are an attempt to circumvent the Practice Note and ought to be regarded as such. Whilst they do not seek production in the nature of general discovery, they effectively seek all documents relating to the financing of the property and the costs incurred by the plaintiff in its development. Such documents may be the subject of a disclosure application in due course, but it is not clear why they ought to be disclosed now, and why the parties ought to be distracted in completing their evidence to allow premature disclosure to take place.

10. Secondly, expressions such as “relate to” or “in relation to” are impermissibly wide. Such language ought not be used in a subpoena or in a notice to produce where it requires the recipient to make a subjective judgment about whether or not a particular document falls within the category: Patonga at [12]-[21]; Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909 at [71].

11. The wording of the Westpac subpoena is particularly problematic. It seeks documents (in both categories 1 and 2) “relating to an application for a loan”. That is broad language and would require the recipient to engage in subject‑matter judgments about whether or not each document reviewed falls within the category. The same is true for category 3 of the ACN subpoena.

12. A further problem arises with respect to category 1 of the ACN subpoena. It requires ACN to have regard to another document (a registered mortgage) in order to make sense of that category. The registered mortgage defines “Finance Document” as including:

“(5) a document agreed to between the parties as being a ‘Finance Document’ for the purpose of this Mortgage; and

(6) a document entered into or given under or in connection with, or for the purpose of amending or novating, any document referred to in a paragraph above.”

13. A subpoena should identify the documents sought with “reasonable particularity”. It should not be necessary for a recipient to consult other documents in a wide-ranging and burdensome search in order to understand what is required in order to answer it: Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245 at 259. Having regard to the definitions extracted above, the subpoena to ACN does not meet this test.

14. Finally, part of the notice to produce is oppressive and unduly burdensome. Category 5 seeks a copy of all documents recording costs of the development, unlimited in time. The plaintiff’s evidence in relation to those costs was based upon a spreadsheet maintained as a business record. It summarises costs incurred over a period of almost 15 years. Locating the documents may be extremely time-consuming and therefore costly, and it may not even be possible to locate the older documents.

The defendants’ submissions

15. Pursuant to section 66ZS(4), the notices of rescission are required to specify why a vendor is proposing to rescind the contract and the reasons why the sunset event did not occur within the sunset date. Part D of the notices of rescission summarises the reasons that the sunset event “has not yet occurred”. The notices do not specifically state why the plaintiff is proposing to rescind.

16. However, Part F of the notices states that the plaintiff has incurred costs in excess of $10 million in its attempt to satisfy Council’s requirements to enable the development to proceed and the sunset event to be satisfied. The estimated costs of construction are said to have increased from approximately $12 million to more than $24 million.

17. Part G of the notices says that “Due to ongoing delays and the uncertainty as to when or if the Sunset Event will be able to be satisfied, the Vendor has previously invited the Purchaser to rescind the Contract…”.

18. The plaintiff has served an affidavit by Peter John Benson made 7 November 2025 in support of the claim for relief. The affidavit contains a voluminous exhibit. The relevant parts of the affidavit of Mr Benson identifying why he says the plaintiff is proposing to rescind the contracts are summarised in the letter from Clarissa Huegill to Macpherson Kelley dated 25 May 2026.

19. The notices of rescission and the affidavit of Mr Benson specifically refer to the costs incurred in relation to the development, loan funds and the ability to raise additional finance. In paragraph 127 of his affidavit, Mr Benson says that in September 2025, the plaintiff made an application for finance to St George Bank in an attempt to seek additional funding for the development. He says that St George Bank required further information and on 1 October 2025 he received an email from the bank’s account executive giving notice that St George Bank was not willing to accept any second mortgage being secured against the property and declined to provide any additional finance. Mr Benson says that he is concerned the plaintiff will not be in a position to raise additional finance.

20. The first mortgagee is ACN. The second mortgagee is Credit Connect. The email from St George Bank sent 1 October 2025 refers to related party loans.

21. On 6 February 2026, the plaintiff was granted leave to serve any additional lay evidence and its expert evidence by 24 April 2026. The plaintiff has not served any further lay evidence and not served any expert evidence. Notwithstanding a request by the solicitor for the defendants on 10 June 2026, the plaintiff has not responded or indicated when it will serve further evidence.

22. The requirements of s 66ZS of the Conveyancing Act, the notices of rescission and the affidavit of Mr Benson identify the real issues for determination.

23. The documents to be produced under the notice to produce and the subpoenas are required to enable the defendants to understand the cost and expenses that are said to have been incurred and are likely to be incurred by the plaintiff in relation to the development and the plaintiff’s financial capacity to meet the cost of the development in order to achieve the sunset event. The documents are necessary to enable the defendants to understand the nature of the case they have to meet and to prepare their evidence.

24. The notice to produce has been issued under UCPR 34.1. Unlike a notice to produce issued under UCPR 21.10, which is a process of discovery, a notice under UCPR 34.1 is akin to a subpoena for production: Patonga at [8] citing Norris v Kandiah [2007] NSWSC 1296 at [3].

25. Rule 34.1(1) provides that the party issuing the notice may require the other party to produce to the court “any specified document or thing.” In Patonga, Barrett J held at [12] to [15]:

“The language used in rule 34.1. – ‘specified document’ – is different. The word ‘specified’ here means, in my view, the same as ‘described’ or ‘identified’, so that a notice under rule 34.1 plays in relation to a party the role that is played under rule 33 by a subpoena in relation to a non-party.

The requirement under rule 33 is that a subpoena to produce documents ‘identify’ the document to be produced (see rule 33.3(4)(a)), that is, cut the document out from the universe of documents by some description or specification.

It is permissible for a subpoena to call for, for example, all documents recording oral communications between A and B within a stated period and referring to a particular company: see Lane v Registrar of the Supreme Court [1981] HCA 35; (1981) 148 CLR 245. Such a subpoena satisfies the requirement that there be ‘specified with reasonable particularity the documents that are required to be produced’. These are the words of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. What is impermissible, again using the words of Jordan CJ, is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter. Jordan CJ continued:

‘It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents’.

That observation was made in relation to a non-party but it holds good in the rule 34.1 context in relation to a party upon whom a notice under that rule is served…”

26. The notice to produce issued to the plaintiff satisfies the requirements for specifying a document or thing as outlined by Barrett J in Patonga at [14]. It specifies the documents required with reasonable particularity.

27. The affidavit of Kara Thornton (at paragraphs 22 to 25) takes issue with only one paragraph of the notice to produce, namely paragraph 5. However, the costs said to be incurred by the plaintiff and the documents produced under paragraph 5 of the notice to produce are brought to play by Mr Benson in his affidavit made 7 November 2025 at paragraphs 125 and 133. It is no answer to production to point to the spreadsheet recording costs, fees and expenses (paragraph 23 affidavit of Ms Thornton). The spreadsheet does not appear to be a primary document but a summary of expenses. In order to prepare the spreadsheet, it would be necessary to have the primary documents recording the expenses. It is reasonable to expect that the documents recording the expenses are readily available to the plaintiff.

28. At paragraph 25 of her affidavit, Ms Thornton says (on information and belief) that the underlying source documents for all of the costs incurred by the plaintiff over the 12 to 13 year period may no longer be in the “plaintiff’s possession, power or control”. This statement gives rise to three matters: first, what information was relied upon by Mr Benson to make the assertions in paragraphs 135 and 133 of his affidavit that “the costs incurred by BID in respect of the Project are currently in the order of $20,696,475.24”; secondly, what documents or information were relied upon to prepare the spreadsheet; and thirdly, if the documents are not in the possession, custody or control of the plaintiff, there will be nothing to produce so that compliance with paragraph 5 of the notice to produce cannot be oppressive or burdensome.

29. The notice to produce does not subvert the intended operation of Practice Note SC Eq 11 and has not been served with the object of avoiding its operation. Rather, it is directed to the real issues and for the purpose of enabling the defendants to understand the plaintiff’s financial position, the costs the plaintiff has incurred and its ability to meet the costs of completing the development. As stated, the defendants require these documents to understand the nature of the case they have to meet and to prepare their evidence.

30. In relation to the subpoena to Westpac, the documents required are specified with reasonable particularity. They require production of documents relating to an application for a loan by or on behalf of the plaintiff in September 2025 and an application for a loan by Credit Connect made in about September 2025. In paragraph 127 of his affidavit, Mr Benson says that in September 2025 the plaintiff made an application for finance to the St George Bank. The email from St George Bank sent 1 October 2025 has the subject line “RE: Credit Connect Group” and refers to “related party loans totalling approximately $10.4 million” and “accrued interest of $7.47 million payable to Credit Connect Group P/L”.

31. As indicated, Mr Benson says: “I am concerned that BID will not be in a position to raise any additional finance for the project and that the likelihood of the project being refinanced to cover the additional costs for the project are remote.”

32. The documents required to be produced under the subpoena to Westpac will assist the defendants to assess the likelihood of the plaintiff obtaining finance to complete the project.

33. In relation to the subpoenas to ACN and Credit Connect, each subpoena specifies with reasonable particularity the documents required to be produced. Credit Connect is a related party lender and mortgagee of the plaintiff. The agreements with the plaintiff and amounts owing by it to ACN and Credit Connect are relevant to the costs met by the plaintiff in relation to the development and its ability to obtain finance to complete it.

34. The documents to be produced under each subpoena are required to enable the defendants to understand the nature of the case they have to meet and to prepare their evidence.

35. The subpoenas have been issued for a proper forensic purpose: Secretary of Dep**artment of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65]. They are not being used as a substitute for discovery. They each seek specific categories of documents from entities that are known to have documents required for production by them: The Owners – Strata Plan No 76902 v Roads and Maritime Services ABN 76 236 371 [2017] NSWSC 528 at [20].

36. The documents required for production under the notice to produce and the subpoenas are not being used to subvert the purposes of Practice Note SC Eq 11. They relate to the real issues for determination and arise out of the notices of rescission and affidavit of Mr Benson.

Consideration

37. Practice Note SC Eq 11 applies to matters, such as the present, in the Real Property List. That Practice Note is relevantly as follows:

“Purpose

3. This Practice Note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings.

Disclosure

4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.

6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out:

the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;

the classes of documents in respect of which disclosure is sought; and

the likely cost of such disclosure.”

38. It will be recalled that the plaintiff submitted in writing that the documents sought by the defendants “may be the subject of a disclosure application in due course, but it is not clear why they ought to be disclosed now, and why the parties ought to be distracted in completing their evidence to allow premature disclosure to take place”. The plaintiff also acknowledged, in the context of Practice Note 11, that exceptional circumstances may be established where, for example, the documents are necessary for the fair preparation of evidence for trial: Danihel at [16].

39. The following things should be noted. First, the plaintiff’s expert and lay evidence has all been served. It was not suggested to me that the plaintiff wished to rely upon any further material in its case-in-chief. So much would seem in any event to be apparent from the fact that it has not taken advantage of the opportunity afforded it on 6 February 2026 when granted leave to serve its expert evidence and any additional lay evidence by 24 April 2026. I can confidently assume, therefore, that the plaintiff’s case-in-chief is ready for a hearing.

40. Secondly, the evidence served by the plaintiff reveals that its case is in or to the effect that it is now uneconomical, in the sense that it is no longer commercially viable, to proceed with the subdivision. For example, Mr Benson deposes to the following matters:

“123. As at November 2024, the estimated costs of the subdivision works have increased substantially, from the $11,578,840.65, exclusive of GST and any contingency, as detailed in the Mitchell Brandtman Report, to an estimated $24,889,585.31 exclusive of GST. At pages 1621 to 1640 of the Exhibit is a copy of a spreadsheet of updated costs prepared by SEE Civil, which contains an updated assessment of the construction and estimated costs of the project as at November 2024.

124. The updated estimate by SEE Civil, together with the spreadsheets referred to above, demonstrates that the costs of the project have increased substantially as a result of BID having to satisfy various additional requirements imposed by the Council including, but not limited to, possible re-designing the stormwater management design to incorporate a kerb and channel and piped drainage, and because of the substantial delays caused by the negotiations with Council. As at 31 March 2025, BID has already spent more than $20,696,475.24 in respect of the project, which includes loan funds of $10.4 million which was obtained by BID to fund the development. Accordingly, the project costs and expenses to date are almost double its forecasted costs at the start of the project and the subdivision works have not yet commenced. As noted above at paragraph 123, the estimated civil works costs alone have more than doubled since the commencement of the project.

125. I consider that the increase in the estimated construction costs, together with the additional costs associated with legal fees, interest and holding costs and additional consultants fees, will likely render the development uncommercial for BID, based on the current presales of the lots, given that all of the contracts for the sale of the proposed lots were exchanged on the basis of the initial estimated costs of the development in the report of Napier & Buckley dated 17 January 2018 which accompanied BID’s development application as set out in paragraph 122, now almost 8 years ago, and on the assumption that subdivision works could commence within a reasonable time. As noted above at paragraph 124, the costs incurred by BID in respect of the Project are currently in the order of $20,696,475.24 and those costs do not yet include the forecasted increased costs to undertake the civil works identified above at paragraph 123 above, namely, a further $24,889,585.31 exclusive of GST. In circumstances where the aggregate value of the stage 1 and stage 2 pre-sales are in the order of $23,000,000, as I say above, I consider the increased development costs will render the development entirely uncommercial. I address this issue further below at paragraphs 127 and 146.

126. This is particularly so in circumstances where there are still no clear timeframes for completion of the project, and it remains possible that the DA 2020/284 will lapse in December 2025 before BID is given approval from the Council to commence subdivision works.

127. In those circumstances, it is uncertain whether BID will be in a position to continue to fund the development. Additionally, in September 2025, BID made an application for finance to the St George Bank in an attempt to seek additional funding for the project in light of the increased costs of the project. On 26 September 2025, I received an email from Ms Lorraine Nguyen, Account Executive, St George Bank, which stated that St George Bank required additional information from BID before it would consider providing any feedback on BID’s request for finance. A copy of Ms Nguyen’s email to me on 26 September 2025 is at page 1641 of the Exhibit. On 1 October 2025, I received a further email from Ms Nguyen, in which she notified me that St George was not willing to accept any second mortgage being secured against the Property and declined to provide any additional finance to BID. A copy of the email from Ms Nguyen to me dated 1 October 2025 is at page 1642 of the Exhibit. Given the response from the St George Bank to date, I am concerned that BID will not be in a position to raise any additional finance for the project and that the likelihood of the project being refinanced to cover the additional costs of the project are remote.”

41. Thirdly, as the plaintiff has acknowledged, subject to questions concerning the potentially onerous nature of the requests, it is not in dispute that the documents in question will inevitably have to be produced at some stage. The plaintiff maintains that there is no reason why it should be required to do so now.

42. The defendants’ position in this litigation will undoubtedly be that it is not just and equitable that the plaintiff be permitted to rescind its contracts with them. Most if not all of the matters described in s 66ZS(7) will obviously be central to that determination. I perceive that the defendants’ concern is to know as soon as possible whether the plaintiff’s case has reasonable prospects of success and whether their current resolve to defend the proceedings is itself well‑founded. In my view the documents to which the defendants seek access are necessary for the fair preparation of their evidence for trial. Part of the overriding purpose, to which the Practice Note makes clear reference, is the quick and cheap resolution of the real issues in dispute in the proceedings. The sooner that the defendants have an understanding or appreciation of the way in which the plaintiff’s case is supported, or alternatively not supported, by the documents they seek, the sooner, and by necessary implication the more cheaply, they will be able to understand their position. The plaintiff effectively concedes the documents are potentially relevant and will ultimately have to be provided if they are reasonably capable of identification, location and production. Taking account of that present reality, it does not seem to me that there is any present or principled basis for delaying that process.

43. It follows that I consider the circumstances to be exceptional. However, that is not the end of the matter. Although I am not prepared to re-write the documents or things specified in the notice to produce or the subpoenas, I accept the plaintiff’s submission that words such as “relating to” or “in relation to” or cognate expressions or phrases are apt to be impermissibly wide and uncertain. Moreover, the language in the Westpac and ACN subpoenas “relating to an application for a loan” is in my view far too broad and would effectively require the recipient to engage in subject-matter judgments about whether or not each document reviewed falls within the category.

44. Category 1 of the ACN subpoena is also troublesome. The subpoena should identify the documents sought with “reasonable particularity”. I agree with the plaintiff’s submission that it should not be necessary for a recipient to consult other documents in a wide-ranging and burdensome search so as to understand what is required in order to answer it. Having regard to the definitions of “Finance Document” utilised for the purposes of this subpoena, I consider that it should be rephrased.

45. Finally, I do not consider that category 5 of the notice to produce is oppressive or unduly burdensome to the extent that it seeks a copy of all documents recording costs of the development without a temporal limitation. The plaintiff’s evidence in relation to those costs was based upon a spreadsheet maintained as a business record. It summarises costs incurred over a period of almost 15 years. The plaintiff has submitted that locating the documents may be extremely time-consuming and therefore costly, and it may not even be possible to locate the older documents. However, to the extent that the plaintiff wishes to rely upon the amount of the costs incurred, it is reasonable in my view for it to provide the documents that evidence those costs. Indeed, Mr Benson relies upon the figures he quotes as supportive of the case the plaintiff will seek to make on the just and equitable test.

46. In these circumstances, it seems to me that the best way forward is to require the defendants within a short, specified time to provide the plaintiff with any proposed amendments to the notice to produce and the subpoenas which the defendants consider take account of my findings. If no agreement can be reached among the parties as to the amendments, the matter should be listed before me by arrangement with my Associate for further argument on the extent to which the plaintiff’s concerns and my conclusions have been addressed.

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