• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Texts Cited: Practice Note SC Eq 11

Category: Procedural rulings

Parties: Andrew Elazzi (First Plaintiff)
Theresa Hatem (Second Plaintiff)
Fadi Youssef Hatem (Third Plaintiff)
KOJ Australia Pty Ltd (Fourth Plaintiff)
Antony Simon Elazzi (First Defendant)
Marc Simon Elazzi (Second Defendant)
Macquarie Learning Centre Pty Ltd (Third Defendant)
Goldstein & Rush Pty Ltd (Fourth Defendant)
Barclay Bannister Pty Ltd (Fifth Defendant)

Representation: Counsel:
A Djurdjevic / S Murray (Plaintiffs)
S Scott (First to Fifth Defendants)
Solicitors:
McLachlan Thorpe Partners (Plaintiff)
Ashurst Perkins Coie Australia (First to Fifth Defendants)

File Number(s): 2022/00343839

Publication restriction: Nil

JUDGMENT

Introduction and hearing details

1. The substantive proceedings before the Court concern a dispute between family members. The dispute is centrally between, on one hand, Andrew Elazzi (the first plaintiff), his sister Theresa Hatem (the second plaintiff), and Theresa’s husband, Fadi Youssef Hatem (the third plaintiff), and on the other hand, Antony Elazzi (the first defendant) and Marc Elazzi (the second defendant), being Andrew and Theresa’s older brothers.

2. The corporate parties, KOJ Australia Pty Ltd (KOJ) (the fourth plaintiff), Macquarie Learning Centre Pty Ltd (Macquarie Learning Centre) (the third defendant), Goldstein & Rush Pty Ltd (Goldstein & Rush) (the fourth defendant) and Barclay Bannister Pty Ltd (Barclay Bannister) (the fifth defendant), are corporate entities associated with the family. Goldstein & Rush and Macquarie Learning Centre are companies associated with Antony and Marc. Barclay Bannister is a company associated with the parents of Andrew, Theresa, Antony and Marc, although Antony and Marc appear to have been its controllers. KOJ is associated with Theresa and Fadi.

3. At its heart, the substantive proceedings concern a property development which resulted in the construction of a significant commercial building in Liverpool CBD.

4. This judgment concerns two Notices of Motion (together, the Motions).

5. The first Notice of Motion was filed by the plaintiffs on 16 February 2026 and seeks orders pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the first to fifth defendants give discovery of 87 categories of documents (Discovery Motion).

6. There is also a Notice of Motion filed by the first to fifth defendants on 18 February 2026, which seeks to set aside a Notice to Produce to Court issued by the plaintiffs to the first, second and fourth defendants on 22 December 2025 (the NTP) (Set Aside Motion).

7. I will make two initial points about how the parties will be referred to in this judgment. Firstly, while the proceedings have a sixth defendant, that defendant was not a party to the Motions. On 22 February 2023 the Registrar in Equity made orders by consent excusing the sixth defendant from further appearances until further order. Accordingly, I will refer to the first to fifth defendants as simply “the defendants” in the balance of this judgment. Secondly, as the plaintiffs and the defendants are both applicants and respondents, depending on which of the Motions is being discussed, I will refer to the parties by their role in the substantive proceedings for ease of reference.

8. The Motions were heard together over one day on 22 June 2026. Mr A Djurdjevic of counsel appeared with Mr S Murray of counsel for the plaintiffs. Ms S Scott of counsel appeared for the defendants. Each of the plaintiffs and the defendants provided me with written submissions – I will refer to these as PWS and DWS respectively. The defendants also provided separate written submissions directed towards setting aside the whole of the notice to produce (DWS NTP). Each party also made extensive oral submissions.

9. There was a Court Book of 1222 pages, which included the written submissions. All of the evidence in the Court Book, including affidavits by the solicitor on the record for the plaintiffs (Ms Juliana Ng) and the solicitor with daily conduct and carriage of the matter for the defendants (Mr Kevin Jacob), documents attached to those affidavits, and some of the affidavit evidence and documentary evidence filed and served in relation to the substantive proceedings, was admitted into evidence without objection.

10. Annexed to PWS were two tables which contained submissions from both the plaintiffs and the defendants (albeit the submissions attributable to the defendants were made some time prior to the hearing of the Motion in the exchange of correspondence between the parties’ solicitors) in relation to each proposed category of discovery and each paragraph of the NTP. There were also some proposed refinements to the discovery categories in that table. Following discussion with counsel at the time of the hearing of the Motions, an updated version of those two tables was provided to my Chambers on 7 July 2026 (the 7 July Tables) at my request. The 7 July Tables:

11. included further refinements to proposed categories and the defendants’ responses to those refinements; and

12. identified any overlap between proposed discovery categories and paragraphs of the NTP (the initially-provided tables did this also).

To the extent proposed categories of discovery or categories of the NTP are being referred to and assessed in this judgment, I am assessing the refined versions contained in the 7 July Tables I have referred to above.

11. For the reasons which follow, I will grant discovery for several of the proposed categories of documents, and set aside several of the categories of the NTP. This judgment will provide a determination on every category under both the Discovery Motion and Set Aside Motion.

Procedural background leading up to the Motions

12. The plaintiffs commenced these proceedings by filing a Statement of Claim (SOC) on 15 November 2022.

13. On 10 March 2023, the defendants filed a Defence and Statement of Cross-Claim.

14. On 5 May 2023, the plaintiffs filed a Defence to the Statement of Cross-Claim.

15. On 17 December 2024, the defendants filed an Amended Defence (AD).

16. It is apparent orders have been made for the service of evidence. Both parties have served their evidence in the main proceedings. There have been numerous affidavits served by the parties from 2023 to 2025. As I mentioned above, some of those affidavits and the documents exhibited to them are in evidence for the Motions.

17. Mr Ng and Mr Jacob in their respective affidavits in support of their respective motions each depose to more of the procedural history and some of the background to how the NTP and the Discovery Motion came to be, and have given to the Court some of the email exchanges between the parties’ solicitors in relation to document disclosure. It is not necessary to set that detail out in this judgment. It suffices to say that there was a prior Notice to Produce under r 21.10 of the UCPR issued by the plaintiffs in September 2025 to the defendants which was ultimately withdrawn. The prior Notice to Produce is only really relevant to my determination of the issues before me as background, given Ms Ng says that some of what was sought through the first Notice to Produce is now sought through the proposed discovery categories.

The substantive proceedings

18. The resolution of the Motions requires some understanding of the issues which are in dispute between the parties.

19. The plaintiffs’ written submissions provide quite an extensive summary of the dispute (PWS [31]-[68], in particular [41]-[68]). The defendants took no “direct issue” with the summary of the facts set out at PWS [41]-[68], except to understandably suggest there is a “gloss painted on it that comes with being a plaintiff” (TR P5 L13-33). That this summary is so long is not surprising: the SOC has 167 paragraphs, some of which have quite a few levels of subparagraphs, over 31 pages, along with three further pages of tables. In the AD, the defendants deny many paragraphs of the SOC.

20. The minutiae of the dispute as defined by the pleadings will be traversed below, to the extent it is relevant. I have had regard to the summaries of the pleadings provided by the parties in their written submissions, particularly the plaintiffs’ detailed summary, to the pleadings themselves, and to what was said orally about them by the parties. What is set out below are the essential aspects of the dispute between the parties. As the parties did in their submissions, I will refer to the family members by their first name for ease of reference without intending any disrespect or overfamiliarity.

21. The subject matter of this dispute is the development of a property located at 25-35 Scott Street, Liverpool, New South Wales (Scott Street Land). I will adopt the nomenclature of the parties by referring to the whole of the property development project as the Scott Street Project. The land and the building on it appear to be quite valuable: at one point there was an offer to purchase the land for $72,000,000.

22. There appear to have been three components to the Scott Street Project. There was the demolition of the buildings originally on the land, the development of the building now on the land (the Scott Street Building), and the ongoing leasing of parts of and potential sale of the Scott Street Building. The construction and development of the building was completed in 2018 and since that time the building has been rented out.

23. The Scott Street Land formerly comprised three separate parcels, one of which was owned by Goldstein & Rush and Barclay Bannister, and one owned by Andrew, Theresa, and Fadi. The registered proprietor of the third lot which now forms part of the Scott Street Land was Macquarie Learning Centre, though the plaintiffs say that the land was to be acquired and owned by Andrew, Antony, and Marc together as part of the Scott Street Project, subject to a partnership agreement. The plaintiffs say it is uncontroversial that each of the parties contributed land they owned to the Scott Street Project, noting however, that “just about every other significant matter is in dispute” (PWS [31]) (CB p. 365-368).

24. The core issue in dispute between the parties appears to be the proper characterisation of the relationship between the parties as regards the Scott Street Project.

25. The plaintiffs contend that the parties (each of the natural persons and the corporate parties associated with them), excluding KOJ, entered into a partnership agreement with respect to the Scott Street Project. There is a pleaded form of the partnership agreement and then there is an “alternative” partnership agreement pleaded of which the plaintiffs say is in “similar terms” to the primary pleaded partnership agreement. Alternatively, the plaintiffs plead that there was a joint endeavour agreement governed by the same terms as those of the alleged partnership. That there was a shared common intention between the parties with respect to 29 Scott Street is further pleaded in the alternative. The plaintiffs allege that by reason of either the partnership agreement (in either its main or “alternative” form) or by the joint endeavour agreement, Antony and Marc owed fiduciary duties to Andrew, Theresa and Fadi. There are some more specific pleadings about whether Antony and Marc acted for Andrew as his lawyers, and whether Antony and Marc made representations to Andrew about the acquisition of one of the individual lots which formed part of the Scott Street Land, as referred to above.

26. In the context of these arrangements (in the alternative), the plaintiffs say that the defendants have breached obligations owed to Andrew, Theresa, and Fadi, be they fiduciary duties or regular contractual duties referable to the terms of the alleged partnership/joint venture agreement pleaded by the plaintiffs. The breaches alleged by the plaintiffs of the pleaded agreements include:

27. a failure to pay rental income received to Andrew, Theresa and Fadi;

28. a failure to give Andrew, Theresa and Fadi the books and records of the alleged partnership; and

29. Antony and Marc causing Macquarie Learning Centre to acquire a lot of land solely, which was at Andrew’s expense as he did not obtain the one-third interest that was alleged to have been promised to him.

30. The defendants deny there was a partnership or joint endeavour between the parties, and instead plead a different agreement between the parties in respect of the Scott Street Project. As a fallback, the defendants also plead that if there was a partnership agreement or joint endeavour, then the terms of that relationship are in accordance with an agreement pleaded by the defendants. They also deny that they breached their obligations to the plaintiffs in the way pleaded by the plaintiffs.

31. There appears to be no dispute between the parties that the agreements pleaded by the parties were not in writing at any point. Given the nature of the AD, there also appears to be no dispute that there was some sort of arrangement between the parties in respect of the Scott Street Project, though evidently the terms of any agreement are a hotly contested issue, as is whether they have been breached.

32. In the midst of the Scott Street Project, the plaintiffs plead that in November 2016, Theresa, Fadi and KOJ (or any one or more of them) loaned to Antony, Marc and/or Goldstein & Rush (or any one or more of them) $1,600,000. This loan was referred to by the parties as the Nov Loan. The plaintiffs say the Nov Loan is repayable now, and the relevant borrower/s of Antony, Marc and/or Goldstein & Rush (or any one or more of them) is in breach of the loan agreement with Theresa, Fadi and KOJ (or any one or more of them) by having failed to repay most of the loan. It appears the defendants accept the sum of money was loaned to Goldstein & Rush specifically (as I read the relevant paragraph of the AD), but they say the Nov Loan was not payable until the Scott Street Building was sold. Whatever the agreed terms were regarding the Nov Loan, they were also not in writing.

33. I acknowledge that even this summary that I have provided glosses over much of the factual background to the dispute as pleaded, let alone what the defendants have put in issue through the AD. However, it should hopefully give a flavour of the fact there are a lot of factual and legal issues raised on the pleadings. This is without considering other issues which might arise on the evidence.

34. Having regard to the totality of the pleadings, and, I assume, as context to the nature and extent of the disclosures sought, the plaintiffs submit that the proceedings are factually and legally complex, and that almost every element of the proceedings is contested (PWS [7], [9]).

Legal principles

Order for discovery (Rule 21.2)

32. The plaintiffs in the Discovery Motion seek an order for discovery in relation to 87 categories (or classes) of documents pursuant to r 21.2 of the UCPR, which provides:

21.2 Order for discovery

(1) The court may order that party B must give discovery to party A of—

(a) documents within a class or classes specified in the order, or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3) Subject to subrule (2), a class of documents may be specified—

(a) by relevance to one or more facts in issue, or

(b) by description of the nature of the documents and the period within which they were brought into existence, or

(c) in such other manner as the court considers appropriate in the circumstances.

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

33. The definition of “relevant to a fact in issue” is provided in r 21.1(2) of the UCPR:

For the purposes of this Division, a document or matter is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

34. An order for discovery is a form of disclosure (PWS [3]). Relevant to any consideration of whether to make an order pursuant to r 21.2 are the terms of Practice Note SC Eq 11, entitled “Disclosure in the Equity Division” (PN 11). The material paragraphs of PN 11 are 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 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.”

35. The Court in Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 (Graphite) at [14] (per Brereton J) stated the following:

“[14] … the Practice Note provides guidance as to the practice of the Court in respect of disclosure. It is not a statute, nor is it a rule of the Court. It guides, but does not govern, the disclosure process. It must yield to the requirements of the individual case, although the importance of its purpose means that it will be in a rare case that the Court will depart from its guidance.”

See also what I said on this issue in United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156 at [54]-[65].

36. In relation to paragraph 5 of PN 11 and whether a document is “necessary” for the resolution of the real issues in dispute in the proceedings, in Graphite the Court stated the following:

“[19] Insofar as par 5 of the Practice Note provides that discovery will be ordered only where necessary, that reflects a longstanding requirement, formerly contained in the rules (and still provided, in respect of interrogatories, by UCPR r 22.1(4)), that discovery would be ordered only where it was necessary. This provision was consistently interpreted to mean, not essential, but reasonably required for the fair disposition of the matter [Schutt v Queenan & Anor [2000] NSWCA 341, [12] (Mason P); In the matter of Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241, [20]-[23]]. This has been variously described as “what is reasonably necessary for the disposing fairly of the cause or matter” [Boyle v Downs [1979] 1 NSWLR 192, 205 (Cross J); Yamazaki v Mustaca [1999] NSWSC 1083], or “necessary in the interests of a fair trial” [Percy v General Motors-Holden Pty Ltd [1975] 1 NSWLR 289, 292 (Rath J)]; or “reasonably required or legally ancillary” to the achievement of a fair trial, not “essential” but to be “subjected to the touchstone of reasonableness” [Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 (Gaudron, Gummow and Callinan JJ)]. That approach applies to the similar phrase in the Practice Note: in Leighton, McDougall J said (at [22]):

‘In the context of the practice note, the disclosure (either pre-evidence or at all) must be shown to be reasonably necessary for disposing of the matter fairly or in the interests of a fair trial.’

[See also In the matter of Mempoll, [18]; and James v Royal Bank of Scotland Group plc [2013] NSWSC 402, [16] (Stevenson J)].”

37. More broadly, the Court in Graphite (at [21]-[22]) discussed the issue of “relevance to a fact in issue”:

“[21] Aside from necessity, the touchstone for discovery is relevance to a fact in issue in the proceedings. …

[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.”

38. Also applicable to any consideration as to whether to make an order under r 21.2 are the requirements of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) (CPA). The Court must have regard to the objects of the just, quick and cheap determination of the proceedings and efficient use of available judicial and administrative resources. These principles have been relevantly applied to discovery applications: see, for instance, Lawrence v Sammut [2022] NSWSC 344 at [26]; David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Limited (No 2) [2025] NSWSC 7 (Pallas v Lendlease) at [195]-[198].

39. In considering the issues before the Court on the Discovery Motion, I am guided by legal framework and principles set out above. In particular, I note that relevant to any consideration is whether any class of document sought is relevant to a fact in issue, whether the production of that class of document is necessary for the resolution of the real issues in the proceedings, and more broadly, the consideration of whether the making of any order will facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Notice to Produce to Court (Rule 34.1)

40. The plaintiffs have served the NTP on the defendants, who in turn seek to have the NTP set aside by way of the Set Aside Motion.

41. Rule 34.1 of the UCPR relevantly provides:

34.1 Notice to produce to court

(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner—

(a) at any hearing in the proceedings or before any such examiner, or

(a1) at any time fixed by the court for the return of subpoenas, or

(b) by leave of the court, at some other specified time,

any specified document or thing.

42. It is well established that the grounds to set aside a notice to produce are the same as those which justify the setting aside of a subpoena: Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 at [91] (McColl JA); Pallas v Lendlease at [191] (McGrath J). I will accordingly refer to the authorities on setting aside notices to produce and subpoenas interchangeably.

43. 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”. As recently cited in Ballina Island Developments Pty Ltd v Hadler [2026] NSWSC 922 (per Harrison AJ) at [25], the Court in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 (Patonga) (per Barrett J) explained at [12]-[15]:

“[12] 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.

[13] 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.

[14] 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”.

[15] 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. A like principle is that the recipient of a subpoena or rule 34.1 notice to produce must not be put into a position of having to judge the legal effect of a document or its capacity to prove something. Thus, it is impermissible to require the production of, for example, any document proving or tending to prove that X was in Sydney at any time on 1 January 2009.”

44. The legal principles to be applied when a considering whether to set aside a notice to produce were helpfully summarised by the Court in Pallas v Lendlease (per McGrath J) at [191]-[200]:

“[191] It is well established that the grounds on which a notice to produce may be set aside are the same as those which justify the setting aside of a subpoena. In Azzi v Volvo [2006] NSWSC 283, Brereton J at [4] conveniently collected the relevant authorities on this principle, saying as follows:

It is now established that a notice to produce of this type may be set aside in circumstances and on grounds equivalent to those applicable to the setting aside of subpoenas [Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, Highfields Preparatory and Kindergarten School Pty Ltd v Simpson (NSWSC, Master Greenwood, 22 August 1985, unreported); Portal Software Pty Ltd v Bodsworth [2005] NSWSC 1115, [10]]. Those grounds include, relevantly that the subpoena seeks discovery or further discovery from a party [Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372; Finnie v Dalglish [1982] 1 NSWLR 400]; that the subpoena is oppressive [Commissioner for Railways v Small; Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23; Finnie v Dalglish], or that the subpoena calls for production of documents which have no apparent relevance to the issues in the proceedings [Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; Hatton v Attorney-General (2000) 158 FLR 31; Portal v Bodsworth [20]-[21]]. The grounds which I have stated are far from exclusive, and are all but instances of the court’s power to control its process, the power to set aside a subpoena being an instance of the court’s inherent jurisdiction to control its process in the case of an abuse of process. The traditional categories of cases in which subpoenas might be set aside are not the only cases in which the court will intervene, but particular examples of a broad class of case in which the court will set aside a subpoena as an abuse of process [Botany Bay Instrumentation Pty Limited v Stewart [1984] 3 NSWLR 98, 100 – 101].

[192] The court should not permit a notice to produce to be used oppressively. In Foord v Brock [2005] NSWCA 156, Bryson JA at [61] said:

Well known limitations on the use which may be made of subpoenas appear from many decisions of the Court; significantly in Commissioner for Railways v Small (1938) 38 SR NSW 564, and a recent example in NSW Commissioner of Police v Tuxford [2002] NSWCA 139. In a similar way a Notice to Produce to another party should not be used oppressively; in proceedings conducted with pleadings where discovery and inspection are available there can be little use for a Notice to Produce except for production of documents which have been identified earlier in the proceedings.

[193] The test for whether the documents sought in a notice to produce or subpoena have a legitimate forensic purpose was stated in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, by Bell P (as the Chief Justice then was) at [65] and [68] as follows:

[65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP [Pty Ltd v Moebes [2009] NSWSC 306] at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

…

[68] There is a plain difference between “apparent relevance” and “fishing”, the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215 . The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

[194] The setting aside of a notice to produce also bears similarity with the setting aside of a subpoena in the sense that the court’s powers rest in the notion of an abuse of process. In Blacktown City Council, Bell P said at [60]:

There is a danger in using the language of “tests” for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. …

[195] In exercising the powers of the court, I must also have regard to the requirements of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) (CPA).

[196] The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.

[197] In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.

[198] In deciding whether to make an order or direction for the management of proceedings, including an order of a procedural nature, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA. By operation of s 58(2) of the CPA, the determination of the dictates of justice in a particular case requires me to have regard to the provisions of ss 56 and 57 of the CPA and gives me the discretion to have regard to such of the following matters I consider to be relevant:

(1) the degree of difficulty or complexity to which the issues in the proceedings give rise;

(2) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities;

(3) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;

(4) the degree to which the respective parties have fulfilled their duties under s 56(3);

(5) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings;

(6) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and

(7) such other matters as the court considers relevant in the circumstances of the case.

[199] These considerations in the context of setting aside a notice to produce were emphasised in Lawrence v Sammut [2022] NSWSC 344, by Lonergan J at [26]:

Every application of the powers of this Court under the UCPR must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005 (NSW). Setting aside notices to produce that seek irrelevant material facilitates that overriding purpose. To require those notices to be complied with or to allow them to remain operative, has the opposite effect of introducing prolixity, delay and irrelevance into the proceedings.

[200] In Blacktown City Council, Bell P considered the operation of the overriding purpose and the interests of justice in relation to an application to set aside a subpoena, saying at [58]:

As Moffitt P observed in Waind, writing in 1978, “concepts as to what is appropriate between parties have changed in favour of fuller disclosure of relevant matters”: at 384. Examining the question more than 40 years later, one important contemporary contextual matter that informs the Court’s consideration of the proper use of subpoenas in civil litigation is s 56 of the Civil Procedure Act and its identification of the overriding purpose of that Act and of the Uniform Civil Procedure Rules in their application to civil proceedings, namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.”

45. A Notice to Produce is a form of disclosure (PWS [3]). As such, the terms of PN 11, as set out above, will also provide guidance when considering whether to set aside any given Notice to Produce.

46. In considering the issues before the Court on the Set Aside Motion, I am guided by these principles set out above. In particular, I note that relevant to any consideration of whether to set aside is whether any document sought has apparent relevance to an issue in the proceedings, whether the production of those specified documents or things are necessary for the resolution of the real issues in the proceedings (PN 11), and whether the notice to produce is oppressive. More broadly, I have had consideration to whether the making of any order will facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Consideration

General

47. The plaintiffs have submitted that the proceedings are factually and legally complex, and that almost every element of the proceedings is contested (PWS [7], [9]). This characterisation of the proceedings was not disputed by the defendants, and I accept that characterisation.

48. The plaintiffs have also noted that, given the factual circumstances of the disputed issues, it is often the case that the defendants will have the sole possession of many of the documents that go to the facts in issue in the proceedings and, as a consequence, the disclosure of those documents is necessary for the resolution of the real issues in the proceedings (PWS [10], [11], [13]).

49. At a high level, I accept that submission. In this, in the context of factually and legally complex proceedings, and noting the defendants’ various roles under the various purported agreements, I accept the defendants are likely to be the possessors, and often the sole possessors, of various documents, as well as of classes of document, to the extent those documents exist. In making any orders, I bear these circumstances in mind. I am of the view that those circumstances militate in the direction of allowing for the disclosure of documents, as necessary for the resolution of the real issues in the proceeding.

50. In stating this, I accept the submissions of the defendants that there are documents that are not, or are not likely to be, in the sole possession of the defendants, such as, for example, the sought documents disclosing payments by the defendants to Andrew.

51. The plaintiffs submitted that “almost every significant matter of the proceedings is contested” (PWS [40]). Accompanying this submission, the plaintiffs noted the following disputed elements in the proceedings:

“(a) the nature of the relationship between the parties;

(b) the initial acquisition of the parcels of land contributed to the Scott Street Project;

(c) the negotiations and representations leading to the formation of the agreement between the parties, whether it be a partnership or joint venture;

(d) the material terms of the partnership or joint venture (including the percentage entitlements of returns to each of the parties);

(e) the performance of the partnership or joint venture by Defendants;

(f) the relative contributions of the parties;

(g) the scope of the fiduciary duties owed by the Defendants to the Plaintiffs; and

(h) the accounting of the income and expenses of the Scott Street Project.”

52. Having regard to the review of the substantive proceedings set out above (at [18]-[29]), together with the terms of the pleadings themselves, I accept that the description above broadly reflects the real issues in the proceedings to be resolved.

53. Whilst I have had regard to the entirety of the evidence before me regarding the real issues in dispute in the substantive proceedings, I will reference these eight elements where possible to determine the relevance of proposed discovery categories to the real issues in dispute, and whether their production is necessary, and the apparent relevance of the categories of the NTP.

Categories

54. For clarity, I note that the language of the UCPR refers to classes of documents with respect to orders for discovery, and specified documents or things with respect to notices to produce. However, the parties to these proceedings have referred to “categories” of documents in the same way for the Discovery Motion and Set Aside Motion. I understand “categories” to be a blanket term, and what is actually being described and sought is classes of documents in the Discovery Motion (per UCPR r 21.2) and specified documents or things in the Set Aside Motion (per UCPR r 34.1).

55. In these reasons I have retained the use of the term “category” and “categories” as used by the parties, noting however that any consideration that has been undertaken has been with reference to the precise terms of rr 21.2 and 34.1 and the associated legal principles.

56. Throughout the course of the hearing and in the 7 July Tables, both parties made a number of accommodations, with the plaintiffs agreeing not to press several categories of discovery and categories of documents to produce, and with the defendants not opposing several categories of discovery and categories of document to produce. I commend the parties for their collaboration and for their preparation of the 7 July Tables, which has significantly assisted me in resolving the remaining real issues in dispute. As already foreshadowed at [10], the following assessment is based upon the terms of the 7 July Tables.

57. Considering the 87 categories of discovery sought and the 64 categories of documents sought under the NTP, I propose to attach Annexure A and Annexure B to this judgment, which are further revised versions of the 7 July Tables. The tables at Annexure A and Annexure B contain the discovery category or category of document to produce from the 7 July Tables (respectively), the submissions of the parties, and my consideration of those submissions.

58. My reasons below contain the consideration undertaken on categories at a broad level. That is, I have grouped together categories for which I have come to similar conclusions. Annexure A and Annexure B contain my reasoning on an individual category-by-category basis. The ultimate orders I make, flowing from my consideration on each category, will be listed at the end of these reasons.

Discovery Motion

59. As explained at [55]-[56], at Annexure A is a detailed updated schedule of the categories, submissions of the parties, and the consideration by the Court in relation to each individual category. Annexure C contains the final list of the categories for which I propose to make an Order for discovery.

Categories not pressed

60. The documents within categories 17-21, 26-27, 29, 32, 51 and 60-61 are not pressed by the plaintiffs. Accordingly, I have not considered these categories and make no order in relation to them.

Categories not opposed by the defendants

61. The following categories of documents sought by the plaintiff were not opposed by the defendants: 1-3, 7-16, 24, 28, 31, 33-36, 38-41, 43, 45, 47, 49, 52, 54, 64, 67-70, 72 and 74-78.

62. I have had regard to each of those categories and am of the view that the documents sought are relevant to a fact in issue, and that the production of that class of documents is necessary for the resolution of the real issues in the proceedings.

63. Accordingly, I propose to make the order for discovery for those categories of documents.

Categories where there is no document to produce

64. For several categories the defendants have not objected the production of the category of documents, however they have stated that they have no documents to produce. Those categories are: 4-6, 37, 46, 48, 50.

65. I have had regard to each of those categories. I am of the view that the documents sought are relevant to a fact in issue, and that the production of that class of documents is necessary for the resolution of the real issues in the proceedings.

66. Accordingly, I propose to make the order for discovery sought for those categories.

67. However, in making an order for the discovery of these categories of documents, I note that the order is largely a formality, as the defendants have (helpfully) pre-emptively indicated the status of those classes of documents.

Categories either allowed or rejected

68. Below I will address the categories of documents that are opposed, noting that the category-by-category consideration is to be found in Annexure A.

69. The class of document sought within categories 22 and 23 relate to the tax returns of Goldstein & Rush, Antony and Marc. The parties have agreed to production of documents surrounding Goldstein & Rush’s tax returns (category 22(a)), and categories 22(b) and (c) were no longer pressed. The parties, however, dispute documents relating to Antony and Marc’s tax returns. I decline to make an order for discovery insofar as it relates to the tax returns of Antony and Marc, as it is not clear how their tax returns would show profit appropriated from the Scott Street Project. Consequently, I do not accept that Antony and Marc’s personal tax information would be necessary to disclose (Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 [22]-[23]). Relevance to a fact in issue is, in my view, tangential at best.

70. I am of the view that the class of documents sought within category 25 is not sufficiently tied to any pleading of fact in the SOC. I further reject this category as it is not related to a fact in issue and is speculative. I have not been persuaded that discovery of these documents is necessary for the resolution of the real issues in the proceedings.

71. I allow category 30. I note that categories 30(a) and 30(b) were not opposed, and are relevant to a fact in issue, and are necessary. Regarding category 30(c), the defendants submitted that the category lacks relevance to a fact in issue. I reject this submission. The value of these properties is relevant to the relative contributions made by the parties to the Scott Street Project and to each person’s entitlement under the defendants’ proposed metric.

72. I allow category 42, which relates to communications between tenants of the Scott Street Building and the defendants relating to non-payment of rent. I accept that the rent is contended to be an asset of the Partnership and there are allegations of the defendants withholding rent to the plaintiffs, and thus these documents are relevant to a fact in issue. I therefore accept the plaintiffs’ submission that they should be able to go behind a rental ledger and look at further documents, and that these documents are necessary for the resolution of the real issues in the proceedings.

73. In relation to the class of documents sought in categories 44, 53 and 87, I do not propose to make the order sought. I am of the view that, amongst other reasons (see Annexure A), these categories are imprecise, broad and speculative, and would be unduly onerous to comply with. In this, I have had regard to the principles cited in the CPA ss 56 to 58, and Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200 at [42].

74. I do not propose to make an order in relation to the class of documents sought within category 55. Category 55 seeks documents evidencing or explaining the application of funds received under the Nov Loan. It is not clear to me why the use of the Nov Loan is relevant to the real issues in dispute, given it is only the Nov Loan’s characterisation and terms in dispute. Even if it were, the defendants say they have given evidence of the Nov Loan’s uses, making such a category unnecessary, and the plaintiffs have not provided reasons why the current information provided is insufficient; that is, this category seems duplicative and imprecise.

75. I reject categories 56, 57, 58 and 59 and do not propose to make an order in relation to those categories. As it is not in dispute that Marc Antony Lawyers paid Andrew Elazzi, per Antony’s written evidence, this class of documents is not necessary to test the contention that Andrew was financially reliant on Marc and Antony.

76. Categories 62-63 and 65, being letters regarding terms of engagement and instructions between the defendants and solicitors, were agreed to in form but not in the time period of documents sought. I allow discovery of these classes of documents. The defendants have not opposed the form of this category of documents, and opposed only the time period of documents sought, and I accept these documents appear to be relevant and necessary to the resolution of issues in dispute, particularly PWS [40](d) and (g). Given the form of category is accepted as relevant, I am of the view that it would be relevant from 1 June 2015, on or about when the plaintiffs allege a partnership was entered into, until the commencement of these proceedings.

77. Category 66 relates to documents related to the practicing certificates of Marc and Antony. I allow discovery only as framed by the defendants (per category 66(b)), being any practicing certificate held by Marc Elazzi or Antony Elazzi from 1 January 2011 to the commencement of proceedings. Any further documents are not relevant to what fiduciary duties were owed.

78. I reject categories 71 and 73 as I accept the submission of the defendants (DWS [87]) that the disputed evidence in question, being Antony and Marc’s explanation for why Andrew has email access, is more properly tested during cross-examination and is largely a question of credibility. Thus, discovery is not necessary, and production of these documents would be excessive.

79. Categories 79-86 relate to properties known as the Leppington Property and Wilton Property. These properties are alleged by the plaintiffs to have been jointly held between Andrew, Marc, and Antony, whilst the defendants deny Andrew had any interest in the Leppington Property and dispute the characterisation of Andrew’s interest in the Wilton Property. These properties are not relevant to the Scott Street Project, but the plaintiffs allege they are relevant to the scope and nature of fiduciary obligations owed by the defendants to the plaintiffs. Against that background, I accept categories 79(a), 80 and 81 as being necessary documents to the relevant issue in dispute of the history of the relationship between Andrew and Antony and Marc. However, I reject categories 79(b) and 82-86, as it is not clear how those documents are relevant to the history of Andrew being assisted by Antony and Marc.

Set Aside Motion

80. As explained at [55]-[56], at Annexure B is a detailed schedule of the documents sought in the NTP, submissions of the parties, and consideration by the Court in relation to each individual category.

Should the whole of the NTP be set aside as an abuse of process?

81. The defendants submit that the whole of the NTP should be set aside because it is an abuse of process, oppressive, and a subversion of PN 11 (DWS NTP [1]). I reject this submission, for the following reasons.

82. Firstly, the defendants argue the NTP is an abuse of process because it effectively seeks discovery. The defendants argue the NTP should have been combined in categories of discovery, because the NTP was issued on the same day as the Discovery Motion, there is a great deal of overlap between the NTP and the Discovery Motion, and because the NTP seeks classes of documents that are identifiable but not identified, which is more appropriate for discovery (DWS NTP [10]; TR P19 L15-32). The defendants submit they should not have been put to the cost and expense of responding to the NTP as well as the Discovery Motion.

83. Secondly, the defendants argue the NTP lacks requisite precision. The defendants point to categories of the NTP that call for “all” or “any” of a type of document. Citing Loulach Development Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465 (Leeming JA, at [12]), the defendants say that the NTP lacks “reasonable particularity to identify what it is which is the subject of the requirement for production”.

84. Thirdly, the defendants argue the NTP is a subversion of the principles of PN 11, which provides that there should be no order for disclosure of documents unless there are “exceptional circumstances” (DWS [7]-[8]).

85. I accept most of the criticisms made by the defendants of the approach taken by the plaintiffs, noting, however, it is not unheard of for a request for discovery to occur on the same day as the service of a notice to produce (see Graphite at [10]). Certainly, it is not efficient to request 87 categories of discovery and 64 categories of documents to produce with a large amount of overlap and expect the Court to navigate this overlap unguided. I caution the parties that the approach that has been taken has not made the most efficient use of court resources, but have already acknowledged the assistance provided by the agreement on categories and other assistance where provided.

86. However, given the time that has been taken and the costs that have already been accrued to address each category of documents to produce, it would not facilitate the just, quick and cheap resolution of the real issues in dispute to set aside the NTP at this point in the proceedings, in circumstances where documents are in any event apparently relevant, necessary, sufficiently specified and not oppressive. Given I have been provided with a set of category-by-category submissions, it is more just and efficient to address the NTP on this basis, as clearly some of the documents called for have apparent relevance and may otherwise be considered necessary.

87. Regarding the second and third submissions of the defendants, whilst I accept that several categories under the NTP lack the requisite precision, this is a basis on which to set aside the individual categories, not the entirety of the NTP. Several categories are also sufficiently precise, for instance, category 32, which calls for a copy of leases in executed form.

88. Accordingly, I will not set aside the whole of the NTP. Rather, I will address the NTP on a category-by-category basis, as helpfully set out by the parties. Notwithstanding this conclusion, the criticisms about the arduous process adopted by the plaintiffs will impact the costs order I propose to make.

Categories not pressed

89. NTP categories 2, 4-6, 13(a), 14, 31, 32(a), 34-35, 43, 52 and 64 were not pressed by the plaintiffs.

90. Category 10 of the NTP was also not pressed by the plaintiff if the defendants confirmed they did not have possession, custody or power of any contract for the sale of 37 Scott Street other than the document exhibited at pages 359 to 366 of Exhibit ASE-1 (CB Tab 16/ Page 821-828) to the affidavit of Antony Simon Elazzi affirmed 7 January 2025. As the defendants confirmed they had nothing to produce, I infer this category was not pressed.

91. Similarly, Category 56 was not pressed if the Defendants have confirmed they have searched for a copy of the relevant documents and are unable to find it, which they have done.

92. Accordingly, I have not considered the above categories and make no order in relation to them, one way or the other.

Categories which overlap with discovery categories

93. Several categories of the NTP were not pressed by the plaintiffs where related categories of discovery were ordered. As I ordered discovery categories 3, 9-12, 14-16, 28, 30, 31, 40, 42, 45, 62, 63, 64, 70 and 81, NTP categories 3, 7(a), 7(d)-(e), 8, 9, 12, 15, 18-23, 25-26, 29(a), 30(a), 33, 37-42, 44-46, 48, 57, 59 and 63 are not pressed.

94. Accordingly, I have not considered the above categories and make no order in relation to them, one way or the other.

Categories not opposed by the defendants

95. I have not considered the following categories as the defendants did not seek to have the categories set aside: 16-17, 27-28, 32(b)-(e), 53-55 and 60-62.

Categories where there is no document to produce

96. For several categories of documents under the NTP the defendants did not appear to seek to have that category set aside, and rather, informed the plaintiffs that the defendants had no documents to produce. I will therefore not undertake a consideration as to whether to set aside these categories, noting however their inclusion in the NTP is largely a formality as there will be no further time or costs required to respond to them. Those categories are: 1, 11, 13(b) and 24.

Categories either allowed or set aside

97. Below I will address the categories of documents that are sought to be set aside, noting that category-by-category consideration is to be found in Annexure B.

98. Category 7(b)-(c) relates to property valuations referenced in the AD. The defendants submitted both that this category lacked requisite specificity, and that the paragraphs of the AD do not plead the existence of any valuations. I accept that paragraph 18(c)(iv)(3) refers to the mortgage broking business of Mortgage Traders [18(c)(iv)(3)(a)(ii)] and the assets of the childcare business at 18 Pine Road Casula [18(c)(iv)(3)(a)(iii)]. Such values have apparent relevance to PWS [40](d) and are sufficiently specific that they are not an abuse of process. I will not set aside these categories of the notice to produce.

99. Categories 29(a) and 30(a) are no longer pressed. Regarding categories 29(b), 30(b), and 36 the defendants will agree to produce “the bank statement recording the receipt of the $1 million on 23 October 2017”, “the bank statement recording the repayment of $1 million on 9 November 2017”, and “the bank statement recording the payment made on or about 16 June 2017 in the amount of $25,000 by “one of the companies controlled by Antony Elazzi” to Andrew Elazzi”, respectively. The defendants submit that the categories lack the requisite specificity and that they are otherwise a request for discovery. Noting the agreement of the defendants to produce the key bank statements sought, I propose to otherwise set aside the categories. In deciding to otherwise set aside these categories, I have had regard to the principles cited in Loulach, in that documents should be identified with reasonable particularity. I also note that documents should be identified, not merely identifiable: Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219 at [21].

100. Category 47 relates to documents recording or referring to the “winding down” of Marc Antony Lawyers. This category of the notice to produce ought to be set aside. I accept the submission of the defendants that this category lacks specificity; it is not clear that Antony’s affidavit suggests the existence of any documentary support for his “winding down” beyond the production of any practicing certificates held by Antony and Marc from 1 January 2011 to the commencement of the proceedings, as already ordered to be produced by discovery category 66.

101. Regarding category 49, I will not set aside this category of documents to produce. I accept that arising from [152] of Antony’s affidavit is the suggestion that Norton Rose Fulbright provided legal services about the Agreement for Lease for which they would have file notes or emails, and such documents have apparent relevance to the issues in this case, in particular PWS [40](d) and (g).

102. Categories 50 and 51 relate to the production of Antony Elazzi’s diary, be it electronic or physical. I will set aside this category of documents to produce. In doing so, I accept the submission of the defendants that this request lacks specificity, particularly where relevant excerpts from Antony’s diary have been produced. This is so notwithstanding the amendments made to the description of these categories in the 7 July Table. I note that a notice to produce is “not a substitute for an order for discovery” (Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909 at [60]-[61] per Ward CJ in Eq), and in this way, I accept that it is inappropriate to use a notice to produce to call for documents that lack specificity and are only tangentially related to issues in dispute.

103. Category 58 relates to documents recording or referring to the management of the Wilton property. Category 58 should be set aside since, as for discovery categories 82-86, it is not clear how all “holding costs”, “costs of maintaining the Wilton Property” and “outgoings” have apparent relevance to the history of the relationship between Andrew, Marc and Antony and the scope of any fiduciary obligations. Further, this category lacks specificity.

Costs

104. As is uncontroversial, s 98(1) of the Civil Procedure Act 2005 (NSW) gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).

105. The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1. Whether a costs order departing from the general rule should be made will depend on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing).

106. The Court has a broad discretion as to costs in particular where there has been a mixed outcome in the proceedings: s 98(1) of the CPA; Prestigious Plumbing Pty Ltd v Secretary, Department of Customer Service (No 2) [2026] NSWSC 904 at [6]-[10] (Price AJA); Sims v The Commonwealth (No 2) [2023] NSWCA 30 at [6]-[7] (Bell CJ, Meagher and White JJA), quoting Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6] (Beazley P, Payne JA and Barrett AJA) and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA). When apportioning costs where there has been a mixed outcome in the proceedings, such an exercise is generally carried out by the Court on a relatively broad-brush basis and largely as a matter of impression and evaluation: Prestigious Plumbing; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [19] (Ward, Emmett and Gleeson JJA), citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36] (Beazley, Tobias and McColl JJA) and Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22 (Young J).

107. I also note the terms of r 42.7 of the UCPR, which relate to interlocutory proceedings, noting more generally however, that as with r 42.1, the Court has a broad discretion and is always able to “order otherwise” in appropriate circumstances.

108. There has been a mixed outcome in these proceedings. The plaintiffs have, at some level, been successful in these proceedings, in that orders for the disclosure of documents have been made.

109. For their part, the defendants were also successful in various issues in relation to the Discovery Motion as well as in relation to the Set Aside Motion. The defendants may also have been otherwise practically successful by providing to the plaintiffs with arguments against their disclosure of various documents, which may have had the result of the plaintiffs not pressing particular categories.

110. Overall, however, in coming to a preliminary view, I have seen some force in the criticisms made by the defendants of the plaintiffs’ approach to the issue of disclosure which are summarised at [81]-[87]. The approach taken by the plaintiffs, issuing contemporaneously a lengthy NTP and Discovery Motion, with (acknowledged) overlapping categories and which required significant revisions, has been productive of significant time and expense. As a part of this, I also observe that the defendants have made significant accommodations and have provided the plaintiff (and thus the Court) with considerable assistance in revising the categories of documents sought.

111. For these reasons, my preliminary view is that the plaintiffs should pay the defendants’ costs of and incidental to both the Discovery Motion and the Set Aside Motion.

112. The parties made no submissions of substance regarding costs. Accordingly, I will not make any costs orders at this point. I will instead give the parties the opportunity to agree on the appropriate orders or to otherwise make submissions on costs, having had regard to my preliminary view as set out above ([111]).

Orders

113. For the above reasons, I make the following orders and notations:

Order for discovery

1. ORDER that pursuant to UCPR r 21.2, the defendants are to give discovery to the plaintiffs of documents within the following classes (or categories) listed in Schedule to Annexure C, which is annexed to these reasons and marked “Annexure C”.
2. ORDER that the defendants are to serve their verified list of documents pursuant to UCPR rr 21.3 and 21.4 within 28 days of the date of these orders.
3. ORDER that the defendants are to provide inspection of the documents pursuant to UCPR r 21.5 referred to in their verified list of documents that are not subject to a claim of privilege within 7 days of service of the verified list of documents.
4. ORDER that the Notice of Motion filed by the plaintiffs on 16 February 2026 is otherwise dismissed.

Notice to produce to Court

5. NOTE that Notice to Produce categories 2, 4-6, 13(a), 14, 31, 32(a), 34-35, 43, 52 and 64 listed in the Notice to Produce to Court served on 22 December 2025 are not pressed by the plaintiffs.
6. NOTE that Notice to Produce categories 10 and 56 listed in the Notice to Produce to Court served on 22 December 2025 are not pressed by the plaintiffs as defendant confirmed they have nothing to produce.
7. NOTE that Notice to Produce categories 3, 7(a), 7(d)-(e), 8, 9, 12, 15, 18-23, 25-26, 29(a), 30(a), 33, 37-42, 44-46, 48, 57, 59 and 63 listed in the Notice to Produce to Court served on 22 December 2025 are not pressed as documents otherwise obtained through Order for discovery.
8. ORDER that, subject to order 9 below, the following specified documents, listed in the Notice to Produce to Court served on 22 December 2025 and as updated by the parties and listed in Annexure B (attached) by way of category numbers, are to be set aside:

(a) 29(b), 30(b), 36, 47, 50, 51, 58.

9. NOTE the agreement of the defendants to provide the plaintiffs with the following documents:

(a) the bank statement recording the receipt of the $1 million on 23 October 2017 (per category 29(b), which has otherwise been set aside); (b) the bank statement recording the repayment of $1 million on 9 November 2017 (per category 30(b), which has otherwise been set aside); (c) the bank statement recording the payment made on or about 16 June 2017 in the amount of $25,000 by “one of the companies controlled by Antony Elazzi” to Andrew Elazzi (per category 36, which has otherwise been set aside).

10. ORDER the defendants to provide the plaintiffs with the documents referred to in the notation at order 9 above within 28 days of the date of these orders.
11. ORDER that the Notice of Motion filed by the first to fifth defendants on 18 February 2026 is otherwise dismissed.

Costs

12. ORDER, subject to order 13 below, the parties are to provide by email to the Chambers of Bennett J agreed short minutes of order to resolve the issue of costs by 4:00pm on 1 September 2026.
13. ORDER, that if agreement as to costs is unable to be reached:

(a) Any party wishing to make a submission as to the appropriate costs order is to provide brief written submissions not exceeding 3 pages by email to the Chambers of Bennett J and serve them on the opposing side by 4:00pm on 1 September 2026. (b) Any written submissions in reply not exceeding 3 pages on the issue of costs are to be provided by email to the Chambers of Bennett J and served on the opposing side by 4:00pm on 8 September 2026. (c) Any party wishing to make a submission as to the appropriate orders has leave to file and serve an affidavit in support of their costs application.

14. ORDER that the issue of costs will be dealt with on the papers.

Annexure A - Revised Discovery Tables for judgment

Annexure B - Revised Notice to Produce Table for judgment

Annexure C - Orders to be made - Categories of Discovery sought

**********