By notice of motion filed on 3 March 2021, the third and fourth defendants in these proceedings (the Nissan parties) seek an order for discovery of specified categories of documents by the plaintiffs (the Volkswagen parties) and the fifth and sixth defendants (the BMW parties) pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The Nissan parties comprise Nissan Financial Services Australia Pty Ltd (Nissan FSA) and receivers and managers appointed by Nissan FSA to the first defendant, Atlas C.T.L Pty Ltd (in liq) (receivers and managers appointed) (Atlas).
The Volkswagen parties comprise the first plaintiff (Volkswagen Financial Services Australia Pty Ltd, or Volkswagen FSA) and second plaintiff who is the receiver and manager appointed by Volkswagen FSA to Atlas and to the second defendant, P J M Fleet Management Pty Ltd (in liq) (receivers and managers appointed) (PJM Fleet).
The BMW parties comprise the fifth defendant (BMW Finance Australia Ltd, or BMW FA) and the sixth defendants who are the receivers and managers appointed by BMW FA to PJM Fleet.
The substantive proceedings are essentially a dispute between the Volkswagen parties, the Nissan parties and the BMW parties about security interests said to have been granted by Atlas and PJM Fleet in vehicles, and the respective entitlements of Volkswagen FSA, Nissan FSA and FA to the proceeds of sale of those vehicles. The total amount of the proceeds of sale in question is approximately $11 million.
One of the issues raised by the Nissan parties' pleadings concerns the actual or constructive knowledge of Volkswagen FSA and BMW FA of alleged subleasing of vehicles by PJM Fleet to Atlas. The Nissan parties rely on the alleged subleases as resulting in a transfer of collateral under s 34 of the Personal Property Securities Act 2009 (Cth) (the PPSA).
Section 34 of the PPSA provides:
"Security interest is temporarily perfected
(1) If collateral is transferred, and at the time of the transfer a secured party held a perfected security interest in the collateral, the security interest is temporarily perfected for the period starting at the time of the transfer and ending at the earliest of the following times:
(a) the end of the month that is 24 months after the time of the transfer;
(b) if the security interest was perfected by registration at the time of the transfer--the end time for the registration (as registered at the time of the transfer);
(c) if another security interest attaches to the collateral at or after the time of the transfer, and the other security interest is perfected:
(i) in a case in which the original secured party consented to the transfer--the end of 5 business days after the day of the transfer; or
(ii) in a case in which the original secured party otherwise acquires the actual or constructive knowledge required to perfect the original secured party's interest by registration (or to re-perfect the interest by an amendment of a registration)--the end of 5 business days after the day the original secured party acquires the knowledge.
Security interest becomes unperfected
(2) However, the security interest becomes unperfected immediately after the earliest time mentioned in subsection (1), unless, at or before that time, the security interest is perfected otherwise than under subsection (1).
Transfer free of security interest
(3) This section does not apply in relation to a transfer of collateral if the transferee takes the collateral free of the security interest."
The knowledge required for the purpose of s 34(1)(c)(ii) is knowledge of the transferee's details.
Section 297 of the PPSA provides:
"For the purposes of this Act, a person (the first person) has constructive knowledge of a circumstance if the first person would have had actual knowledge of the circumstance if the first person had:
(a) made the inquiries that would ordinarily have been made by an honest and prudent person in the first person's situation; or
(b) made the inquiries that would be made by an honest and prudent person with the first person's actual knowledge in the first person's situation."
Section 298 of the PPSA provides:
"(1) If it is necessary to establish that a body corporate has actual or constructive knowledge of a particular circumstance, it is sufficient to show:
(a) that a director, employee or agent of the body corporate, being a director, employee or agent who is responsible for acting on behalf of the body corporate in relation to such a circumstance, had that knowledge; or
(b) that both of the following apply:
(i) the circumstance is communicated to a director, employee or agent of the body corporate;
(ii) if the director, employee or agent had exercised reasonable care, the circumstance would have been brought to the attention of a director, employee or agent of the body corporate who is responsible for acting on behalf of the body corporate in relation to such a circumstance.
(2) If it is necessary to establish that a person other than a body corporate has actual or constructive knowledge of a particular circumstance, it is sufficient to show:
(a) that an employee or agent of the person, being an employee or agent who is responsible for acting on behalf of the person in relation to such a circumstance, had that knowledge; or
(b) that both of the following apply:
(i) the circumstance is communicated to an employee or agent of the person;
(ii) if the employee or agent had exercised reasonable care, the circumstance would have been brought to the attention of an employee or agent of the person who is responsible for acting on behalf of the person in relation to such a circumstance.
(3) Paragraphs (1)(b) and (2)(b) do not require a person to bring information to the attention of another person unless:
(a) doing so is part of the person's regular duties; or
(b) the person has reason to know both of the following:
(i) the transaction to which the circumstance relates;
(ii) that the transaction would be materially affected by the information."
The Nissan parties claim that Volkswagen FSA had acquired the actual or constructive knowledge required to perfect or re-perfect any interest it had in the relevant vehicles as against Atlas within the meaning of s 34(1)(c)(ii) of the PPSA by:
1. 14 October 2016 (being the date on which the first Volkswagen-financed vehicle was allegedly transferred from PJM Fleet to Atlas); or
2. alternatively, by no later than 3 September 2019.
The Nissan parties further claim that any security interest of Volkswagen FSA in the vehicles ceased to be temporarily perfected and became unperfected by operation of ss 34(1) and (2) of the PPSA on the earliest of:
1. five business days after the earliest knowledge date referred to immediately above; or
2. 24 months after the transfer of each relevant vehicle.
The Volkswagen parties deny these allegations.
The Nissan parties make similar claims against BMW FA, save that the range of dates on which it is alleged that BMW FA acquired sufficient actual or constructive for the purpose of s 34(1)(c)(ii) is between:
1. 30 July 2015, being the date that the first BMW-financed vehicle is alleged to have been transferred from PJM Fleet to Atlas; and
2. no later than 11 April 2019.
The BMW parties deny these allegations.
The Nissan parties' contention that any security interests of Volkswagen FSA and BMW FA are unperfected is central to their claim that Nissan FSA has priority over the $11 million sale proceeds of the vehicles.
In its notice of motion filed on 3 March 2021, the Nissan parties sought discovery of the same categories of documents by each of Volkswagen FSA and BMW FA in respect of the period 1 January 2016 to 11 April 2019 for Volkswagen FSA and the period 4 May 2012 to 11 April 2019 for BMW FA.
By the time of the hearing of the motion, the Nissan parties and the BMW parties had agreed on categories of documents to be discovered by BMW FA in respect of the period 4 May 2012 to 11 April 2019, save in respect of one category pressed by the Nissan parties and resisted by the BMW parties. Those agreed categories involve some relatively minor amendments to the categories set out in the notice of motion. The disputed category is:
"All Documents (including but not limited to correspondence, memoranda, notes or meetings or discussions) evidencing, relating to, recording, concerning or otherwise pertaining to:
(i) the responsibilities and regular duties of the employees and/or agents of the Fifth Defendant who dealt with PJM, Atlas, and/or their related entities on the Fifth Defendant's behalf."
Orders will be made in the terms agreed as between the Nissan parties and the BMW parties. I will return to the question of the disputed category below.
The Nissan parties seek orders for Volkswagen FSA to discover the same categories that BMW FA has now agreed to discover and the remaining disputed category, but in respect of the time period 1 January 2016 to 3 September 2019.
Volkswagen FSA does not dispute that 1 January 2016 to 3 September 2019 is the appropriate time period in respect of any documents to be discovered. Nor does it dispute that there should be an order for discovery. However, it proposes differently framed discovery categories than those sought by the Nissan parties.
The discovery categories sought by the Nissan parties as against Volkswagen FSA (reflecting the substance of the categories agreed with BMW FA and the disputed category pressed by the Nissan parties) are:
All Documents (including but not limited to correspondence, memoranda, notes of meetings or discussions) evidencing, relating to, recording, concerning or otherwise pertaining to:
a) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the business and operations of both PJM and Atlas;
b) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the goods and services that both PJM and Atlas provided in the ordinary course of business;
c) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the related entities of PJM;
d) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the existence and nature of the relationship between PJM and Atlas;
e) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the financial statements of PJM or Atlas;
f) searches of the PPSR that the First Plaintiff's officers, employees, or agents, or by other persons at their direction, conducted of PJM or Atlas;
g) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the registration by PJM of financing statements on the PPSR relating to any of the Disputed Vehicles;
h) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the creation, effecting or allowance of a security interest, lease or licence by the First Plaintiff over any of the Disputed Vehicles;
i) the responsibilities and regular duties of the employees and/or agents of the First Plaintiff who dealt with PJM, Atlas and/or their related entities on the First Plaintiff's behalf;
j) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of moneys owing by Atlas to PJM;
k) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the transfer of any of the Disputed Vehicles from PJM to Atlas;
l) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of any attempt by PJM to create, effect or allow to exist a security interest, lease or licence over any of the Disputed Vehicles;
m) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the circumstances in which Atlas came to possess any of the Disputed Vehicles (including by way of transfer to Atlas);
n) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the terms on which Atlas retained possession of any of the Disputed Vehicles; and
o) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of Atlas' Australian Company Number;
in the period from 1 January 2016 to 3 September 2019 that have not already been exhibited to affidavits filed in this proceeding.
Interpretation
"Atlas" means the First Defendant, Atlas C.T.L Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 158 167 492).
''Disputed Vehicles" has the meaning given to that term in paragraph 51 of the Statement of Claim dated 27 July 2020.
"Document" means any record of information and includes:
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
"PJM" means the Second Defendant, P J M Fleet Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 007 398 763).
"PPSR" means the Personal Property Securities Register.
The Volkswagen parties propose that they be ordered to give discovery of the following categories of documents:
"1. Any documents evidencing, relating to, recording or otherwise pertaining to the first plaintiff's knowledge (including by way of its directors, employees or agents) in the first period between 1 June 2016 and 3 September 2019 of:
the financial relationship between PJM and Atlas;
(a) whether or not the businesses operated by each PJM and Atlas were separate and distinct;
(b) whether or not any vehicles acquired by or leased to PJM were being leased to Atlas;
(c) whether or not any vehicles acquired by or leased to PJM were in the possession of Atlas or were being utilised in Atlas's business;
(d) whether or not any vehicles acquired by or leased to PJM were delivered to Atlas by the first plaintiff.
2. Any documents evidencing, relating to, recording or otherwise pertaining to each of the "Volkswagen PJM Meetings" as defined in paragraph 52(a) of the affidavit of Andrew Steward Reed Hewitt sworn 18 December 2020.
3. Any documents relating to policies of insurance naming Atlas as an insured and held with respect to vehicles acquired by or leased to PJM."
The Nissan parties press for orders for discovery by Volkswagen FSA of the categories of documents set out at [22] above. In doing so, the Nissan parties relied heavily on the outcome they had agreed with the BMW parties and submitted that there was no reason why the Volkswagen parties should be treated differently.
In my respectful opinion, the consensus reached as between the Nissan parties and the BMW parties may be assumed to be at least in part a reflection of practical considerations specific to the BMW parties that may or may not differ from the Volkswagen parties. I refer, for example, to the manner in which corporate records are stored and the degree or ease or difficulty in identifying documents falling within the categories. I do not propose to interfere with the consensus position reached between the Nissan parties and the BMW parties in this matter, but the Volkswagen parties are entitled have the Nissan parties' motion for discovery determined independently of that consensus position in accordance with the UCPR and the applicable principles.
The question is therefore whether the categories of documents sought by the Nissan parties are relevant to facts in issue.
The requisite connection between the documents sought and facts in issue is well established and was recently summarised by Ward CJ in Eq by reference to authority in Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840 at [39]:
"As to the principles applicable in relation to an application for discovery, r 21.2(4) of the UCPR requires that the documents sought must be relevant to a fact in issue (see also r 21.1(2) of the UCPR). In Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326, Brereton J, as his Honour then was, said (at [21]-[22]):
21. Aside from necessity, the touchstone for discovery is relevance to a fact in issue in the proceedings. UCPR r 21.2(2) provides that a class of documents must not be specified in more general terms than the Court considers to be justified in the circumstances, and UCPR r 21.2(4) provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.
…
22. Thus, while r 21.2(1) permits classes of documents to be specified, not only by relevance to one or more facts in issue, but alternatively by description of the nature of the documents and the period within which they were brought into existence or in such other manner as the Court considers appropriate in the circumstances, nonetheless discovery cannot be ordered except in respect of documents that are relevant to a fact in issue. This means that it must always be possible to show a connection between the class and a fact in issue, and where a class is specified in some other manner than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are relevant to a fact in issue. For this reason, it is highly preferable that classes be specified by relevance to a fact in issue - unless it is self-evident that the class is a sub-class of documents that relate to a fact in issue."
The Nissan parties submit that the documents falling within their proposed categories are relevant to a fact in issue because they are directed to actual knowledge on the part of Volkswagen's directors, employees and agents of matters which, when attributed to Volkswagen FSA, either by themselves or aggregated with other matters, are relevant to the question whether Volkswagen FSA had actual or constructive knowledge of the alleged transfers and the transferee's details.
The Nissan parties relied on an affidavit of their solicitor affirmed on 3 March 2021 in which she deposed that the Nissan parties had located various documents on a server utilised by PJM Fleet and Atlas which established that information concerning financial affairs, business operations and relationships between PJM Fleet and Atlas had been sent by PJM Fleet to Volkswagen FSA. The substance of the information included a substantial loan from Atlas to PJM Fleet coinciding with a significant increase in Atlas' revenue, detailed descriptions of the businesses operated by Atlas and PJM Fleet and information concerning the ride share business operated by Atlas through the leasing of motor vehicles to ride share drivers). The Nissan parties' solicitor deposed that the server also included one email dated 27 September 2016 between PJM Fleet and Volkswagen FSA in which reference was made to the sub-leasing of vehicles by PJM Fleet to "Atlas Ride Share".
The Nissan parties' solicitor deposed that she estimated that it would take the Volkswagen parties approximately 100 hours to search business records for documents responsive to the proposed discovery categories, and a further 75 hours' work by the Volkswagen parties' legal representatives at a cost of approximately $27,750 (excluding GST) to review the documents for relevance/responsiveness and prepare a list of documents and verifying affidavit.
The Volkswagen parties accept these estimates as reasonably accurate and rely on them as indicating that discovery in accordance with the Nissan parties' proposed categories would be a very extensive undertaking.
The Volkswagen parties submitted that their proposed discovery categories engage with the real issues in dispute and capture the documents that "ought really to be discovered in order to most efficiently and most effectively get the real documents that Nissan might be entitled to have and might want to see". It was submitted that the Volkswagen proposed categories would, in effect, result in all of their credit files in relation to PJM Fleet and Atlas being provided to the Nissan parties and that "so far as we are aware, almost all of the relevant documents that one might expect about Volkswagen's knowledge of PJM's business, Atlas' business, the relationship between the two of them, whether or not any of the Volkswagen vehicles that were provided to PJM were ultimately transferred or leased to Atlas. One would ordinarily expect any documents of that sort to be in there".
I note that this submission implicitly accepts that documents going to the matters described in the submission are relevant to facts in issue, and that the submission was not supported by any evidence concerning how Volkswagen organises and maintains its credit files.
It was further submitted that it would be a relatively quick and inexpensive task for the Volkswagen parties to hand over the relevant credit files, compared with undertaking the many hours of work that would be required to comply with the discovery orders sought by the Nissan parties. It was also submitted that separating documents to be discovered into the Nissan parties' proposed categories rather than simply handing over the credit files was likely to be of marginal utility. This submission appears to overlook the fact that the Volkswagen parties' proposal would still require the documents in the credit files to be reviewed and categorised according to their proposed discovery categories.
The Nissan parties submitted that the Volkswagen parties' proposed categories are too narrow because they focus on knowledge of matters that are so specific that the categories are directed in substance to the issue of actual knowledge, rather than the issue that the Nissan parties submit arises under the PPSA - namely, aggregation of knowledge within Volkswagen FSA of matters that, taken together, constitute actual or constructive knowledge of the alleged transfers and the transferee's details.
The Volkswagen parties' response to this submission is that, by reason of s 297 of the PPSA, constructive knowledge is dependent on actual knowledge. It was submitted that discovery should therefore be limited to documents concerning what was actually known by Volkswagen FSA about PJM Fleet and Atlas and the Volkswagen parties' proposed categories represented a more targeted approach directed to knowledge of where the relevant vehicles were, movement of vehicles and whether they were being leased between the PJM Fleet and Atlas entities.
As the Nissan parties acknowledged, an interesting issue of statutory construction may arise at the final hearing as to whether or the extent to which actual or constructive knowledge on the part of a corporate entity for the purpose of s 34(1)(c)(ii) of the PPSA can be aggregated: see Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186; 249 FCR 421, where the question of aggregation and attribution of knowledge to a corporation was considered in a different statutory context. It is not appropriate to express any view about that issue in the context of this discovery motion. I note that, in resisting the discovery categories proposed by the Nissan parties, the Volkswagen parties do not submit that the relevant provisions of the PPSA do not countenance aggregation and attribution to a corporation of discrete knowledge and information held by different officers, employees or agents of the corporation.
In my opinion, with the exception of proposed categories (i) and (o), all of the discovery categories proposed by the Nissan parties are directed to the question whether Volkswagen FSA's had knowledge of matters that, either by themselves or taken together with other matters referred to in the proposed categories, would arguably constitute actual or constructive knowledge of the alleged transfers from PJM Fleet to Atlas and Atlas's details as transferee.
The Nissan parties' proposed categories (a) to (e) and (j) are directed to knowledge of matters that would be relevant to whether Volkswagen FSA had actual or constructive knowledge within the meaning of ss 297 and 298 of the PPSA about the alleged use of the relevant vehicles in Atlas' business and the transactions by which this had come about. The relevance of financial statements (categories (e) and (j)) in this context is illustrated by the evidence of the Nissan parties' solicitor referred to above. There is some degree of overlap between these categories, but it does not follow that documents falling within more than one category will need to be discovered more than once.
Whilst the documents in the Nissan parties' proposed categories (a) to (e) and (j) are relevant to knowledge of matters that may be "building blocks" of constructive knowledge on the part of Volkswagen FSA of the alleged sub-leasing arrangements and transferee details, proposed categories (f) to (h) and (k) to (n) have an even more direct connection to the knowledge allegations in issue because they concern knowledge of matters that would be likely to be of greater significance in the chain of "building blocks" or that may, arguably by themselves, support a finding of the requisite knowledge.
I decline to make an order requiring Volkswagen FSA to discover the documents in proposed category (i). This category would require discovery of each and every document created by an officer, employee or agent of Volkswagen FSA during the specified time period if that officer, employee or agent dealt with (however briefly or fleetingly) PJM Fleet, Atlas or even any related entity of PJM Fleet or Atlas, and if the contents of the document evidenced the responsibilities and regular duties of that officer, employee or agent. This could conceivably require discovery of every document created by each officer, employee or agent of Volkswagen FSA during the specified time period of almost four years. As senior counsel for the Nissan parties acknowledged, such responsibilities and regular duties would be identified in narrower classes of documents, such as employment contracts. The Nissan parties nevertheless pressed for discovery of the very broad category (i). In my opinion, proposed category (i) is specified in far more general terms than is justified in the circumstances.
I also decline to make an order requiring Volkswagen FSA to discover the documents in proposed category (o). This category would require discovery of every document ever received or generated by Volkswagen FSA during a period of almost four years recording the ACN of Atlas. I accept that knowledge of Atlas' ACN is relevant to the question whether Volkswagen FSA had actual or constructive knowledge that is sufficient for the purpose of s 34(1)(c)(ii) of the PPSA. However, it is to be expected that documents falling within categories (a) to (e) would include documents pertaining to knowledge of Atlas ACN and category (o) as drafted is apt to capture a potentially vast quantity of additional documents that otherwise have no connection with any fact in issue.
In relation to Volkswagen's proposed alternative categories, I consider that category 1(b) is ambiguous and categories (1)(c) to (e) and 3 are directed to knowledge of the ultimate questions and are likely to fail to capture documents that would be relevant, in the sense required by UCPR r 21.1(2), to knowledge of many matters that would in turn bear upon the question whether Volkswagen FSA had actual or constructive knowledge of the alleged transfers and the transferee's details. I was not directed to the affidavit of Mr Reed referred to in proposed category 2, so it is not possible for me to assess this proposed category.
I consider that the estimated time and cost of compliance with the Nissan parties' proposed discovery orders, about which there was no dispute as between the Nissan parties and the Volkswagen parties, is proportionate to the matters in issue in these proceedings.
I decline to make an order requiring BMW FA to discover the documents in proposed category (i), for the same reasons as set out in relation to Volkswagen FSA's discovery at [41] above.
The Nissan parties identified 10 May 2021 in their oral submissions as the date by which discovery should be given. Neither the Volkswagen parties nor the BMW parties made submissions opposing that date.
On 19 October 2020, Black J made an order requiring the parties to attend a mediation in the period between 7 and 18 December 2020. That order was not complied with and the parties seek an order discharging that earlier order. I do not consider that there is any utility in discharging an order, the time for compliance with which has long since passed in circumstances where the order will be effectively overtaken by a new order for mediation that the parties now seek. If the parties wished to avoid being in breach of the previous order, it was open to them to exercise the liberty to apply prior to 18 December 2020 to have that order discharged or the time extended. They did not do so.
All parties accept that this matter should be mediated, and that mediation should take place after completion of the discovery. The parties disagree on the precise date by which mediation should take place. Their positions may be summarised as follows:
1. the Volkswagen parties submit that mediation should occur on or before 11 June 2021;
2. the Nissan parties submit that mediation should occur on or before 7 June 2021; and
3. the BMW parties submit that mediation should occur on or before 31 May 2021, on the basis that it should have occurred in December 2020 and it should therefore now take place as soon as possible after discovery.
No party identified any material consequence that would flow from mediation taking place by 11 June 2021 rather than by 31 May 2021, in a matter that was commenced on 25 May 2020 and in which the parties are all equally responsible for the failure to comply with the previous order for mediation. There will be an order for mediation to occur on or before 11 June 2021. It is, of course, open to the parties to schedule the mediation on any date they are able to agree upon before 11 June 2021.
No party has enjoyed complete success in relation to the notice of motion. In my opinion, the costs of the notice of motion should be the parties' costs in the cause.
For all of those reasons, I make the following orders:
1. Order pursuant to rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the first plaintiff is to give discovery to the third and fourth defendants of documents within the categories set out in Annexure A by 10 May 2021.
2. Order pursuant to rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the fifth defendant is to give discovery to the third and fourth defendants of documents within the categories set out in Annexure B by 10 May 2021.
3. Order that the parties attend a mediation to take place on or before 11 June 2021.
4. Order that the parties' costs of the notice of motion filed by the third and fourth defendants on 3 March 2021 be the parties' costs in the cause.
5. List the matter for further directions before the Corporations List Judge at 10am on 21 June 2021.
ANNEXURE A
All Documents (including but not limited to correspondence, memoranda, notes of meetings or discussions) evidencing, relating to, recording, concerning or otherwise pertaining to:
a) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the business and operations of both PJM and Atlas;
b) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the goods and services that both PJM and Atlas provided in the ordinary course of business;
c) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the related entities of PJM;
d) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the existence and nature of the relationship between PJM and Atlas;
e) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the financial statements of PJM or Atlas;
f) searches of the PPSR that the First Plaintiff's officers, employees, or agents, or by other persons at their direction, conducted of PJM or Atlas;
g) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the registration by PJM of financing statements on the PPSR relating to any of the Disputed Vehicles;
h) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the creation, effect or allowance of a security interest, lease or license by the First Plaintiff over any of the Disputed Vehicles;
i) [NOT USED]
j) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of moneys owing by Atlas to PJM;
k) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the transfer of any of the Disputed Vehicles from PJM to Atlas;
l) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of any attempt by PJM to create, effect or allow to exist a security interest, lease or license over any of the Disputed Vehicles;
m) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the circumstances in which Atlas came to possess any of the Disputed Vehicles (including by way of transfer to Atlas);
n) the First Plaintiff's (including by way of its directors, employees or agents) knowledge of the terms on which Atlas retained possession of any of the Disputed Vehicles; and
o) [NOT USED]
in the period from 1 January 2016 to 3 September 2019 that have not already been exhibited to affidavits filed in this proceeding.
Interpretation
"Atlas" means the First Defendant, Atlas C.T.L Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 158 167 492).
''Disputed Vehicles" has the meaning given to that term in paragraph 51 of the Statement of Claim dated 27 July 2020.
"Document" means any record of information and includes:
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
"PJM" means the Second Defendant, P J M Fleet Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 007 398 763).
"PPSR" means the Personal Property Securities Register."
ANNEXURE B
All Documents (including but not limited to correspondence, memoranda, notes of meetings or discussions) evidencing, relating to, recording, concerning or otherwise pertaining to:
a) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the business and operations of both PJM and Atlas;
b) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the goods and services that both PJM and Atlas provided in the ordinary course of business;
c) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the related entities of PJM;
d) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the existence and nature of the relationship between PJM and Atlas;
e) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the financial statements of PJM or Atlas;
f) searches of the PPSR that the Fifth Defendant's officers, employees, or agents, or by other persons at their direction, conducted of PJM or Atlas;
g) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the registration by PJM of financing statements on the PPSR relating to any of the BMW Financed Vehicles;
h) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the creation, effect or allowance of a security interest, lease or license by the Fifth Defendant over any of the BMW Financed Vehicles;
i) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of moneys owing by Atlas to PJM;
j) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the transfer of any of the BMW Financed Vehicles from PJM to Atlas;
k) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of any attempt by PJM to create, effect or allow to exist a security interest, lease or license over any of the BMW Financed Vehicles;
l) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the circumstances in which Atlas came to possess any of the BMW Financed Vehicles (including by way of transfer to Atlas);
m) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of the terms on which Atlas retained possession of any of the BMW Financed Vehicles; and
n) the Fifth Defendant's (including by way of its directors, employees or agents) knowledge of Atlas' Australian Company Number;
in the period from 4 May 2012 to 11 April 2019 that have not already been exhibited to affidavits filed in this proceeding.
Interpretation
"Atlas" means the First Defendant, Atlas C.T.L Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 158 167 492).
''BMW Financed Vehicles" has the meaning given to that term in paragraph 22 of the Second Cross-Claim dated 24 August 2020.
"Document" means any record of information and includes:
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
"PJM" means the Second Defendant, P J M Fleet Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 007 398 763).
"PPSR" means the Personal Property Securities Register."
[2]
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Decision last updated: 29 March 2021