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[2026] ACTSC 185
Supreme Court of the ACT
2026-06-03
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Good Day Sunshine Pty Ltd v Bright Partners Management Group Pty Ltd as Trustee for the Bright Partners Unit Trust Citation: [2026] ACTSC 185 Hearing Date: 22 May 2026 Decision Date: 3 June 2026 Before: Muller J Decision: See [28] Catchwords: PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for leave to proceed against company in liquidation – application for discovery of documents from prospective defendants – whether sufficient basis to show potential cause of action – whether reasonable inquiries made – whether reasonable grounds in believing documents to be in defendants possession – whether documents would be relevant to deciding to bring proceedings – leave granted – discovery ordered Legislation Cited: Corporations Act 2001 (Cth), ss 197, 471B Court Procedures Rules 2006 (ACT), rr 605, 651, Dictionary Trustee Act 1925 (ACT) Cases Cited: Hall v Commonwealth [2018] ACTSC 79 Swaby v Lift Capital Partners Pty Ltd [2009] FCA 749; 72 ACSR 627 Talada Investments v Rovera Scaffolding [2017] ACTSC 160 Vagrand Pty Ltd (in Liq) v Fielding [1993] FCA 179; 41 FCR 550 Waller v Waller [2009] WASCA 61 Parties: Good Day Sunshine Pty Ltd (First Plaintiff) Mark Phillip Tapper (Second Plaintiff) Bright Partners Management Group Pty Ltd as Trustee for the Bright Partners Unit trust (First Defendant) Craig Phillip Bright (Second Defendant) Representation: Counsel A Avery-Williams (First and Second Plaintiff) D Robens (Second Defendant) Solicitors Colquhoun Murphy Solicitors (First and Second Plaintiff) Vera Lex (Second Defendant) File Number: SC 500 of 2025 MULLER J:
The applicants are Mark Tapper and Good Day Sunshine Pty Ltd (Good Day). Good Day is the corporate trustee of a self-managed superannuation fund established for the benefit of Mr Tapper. In that capacity Good Day purchased units in the Bright (fixed return) Management Unit Trust (the Bright Unit Trust).
Good Day commenced purchasing units in the Bright Unit Trust in 1996, and by 2001 it held 90,000 units. Distributions from the Bright Unit Trust were paid to Mr Tapper personally between about 2018 and 2022. Thereafter the distributions ceased. Between May 2023 and August 2024, Mr Tapper made a number of attempts to redeem his trust units through communications with Mr Bright. He also attempted recovery of past unpaid distributions. Those attempts were unsuccessful. Mr Tapper and Good Day engaged solicitors to pursue further information about the status of the Bright Unit Trust, with a view to recovering outstanding funds. In the absence of any meaningful outcome from those efforts, consideration is being given to the institution of legal proceedings. Mr Tapper and Good Day say they have insufficient information to determine whether they have a cause of action as a consequence of the events described above and if so, how the cause of action is to be formulated.
To that end they seek orders by way of originating application for production of documents from potential defendants.
The first respondent to the originating application is the corporate trustee of the Bright Unit Trust. I will refer to it as Bright Group. The second respondent is Mr Bright who is the sole director and shareholder of that trustee company. Subsequent to the filing of the originating application in this Court, the Federal Court made orders for the winding up in insolvency of Bright Group. As a consequence, before any further steps can be taken in these proceedings, the leave of the court is required pursuant to s 471B of the Corporations Act 2001 (Cth).
Mr Tapper and Good Day now seek that leave by separate application. I determined to hear the applications together on 22 May 2026. At the hearing Mr Bright was represented, but Bright Group was unrepresented. The liquidator appointed to the company consents to the grant of leave pursuant to s 471B of the Corporations Act, and also consents to the orders sought in the application for preliminary discovery. Mr Bright does not oppose the granting of leave and making of orders for preliminary discovery against Bright Group. He does oppose the making of orders against him personally, contending the application is inappropriate and, as a consequence, should be dismissed with costs.
Mr Tapper and Good Day read affidavits of: (a) Elizzabeth Zoccoli sworn on 16 December 2025; and (b) Karen Narelle Fogarty sworn on 6 May 2026.
Is leave appropriate?
The requirement for leave applies only to Bright Group. The court has a broad discretionary power to grant leave to commence or continue with proceedings against a company in liquidation under s 471B of the Corporations Act: Vagrand Pty Ltd (in Liq) v Fielding [1993] FCA 179; 41 FCR 550 at [21]-[22]; Swaby v Lift Capital Partners Pty Ltd [2009] FCA 749; 72 ACSR 627 at [22]-[23].
As to the reasons for requiring leave, McPherson J observed in Ogilvie-Grant & Anor v East liquidator of Gordon Grant and Grant Pty Ltd (1983) ACLR 669 at 672: A more convincing explanation is that, without the relevant restriction, a company in liquidation would be subjected to a multiplicity of actions which would be both expensive and time-consuming, as well in some cases as unnecessary.
What is required of the applicant is not the demonstration of a prima facie case in the substantive proceedings. Instead, the applicant must demonstrate the proceedings they are seeking to progress are not without merit. The proceedings in this case are limited to an application seeking disclosure of documents by way of preliminary discovery from a potential defendant. Whether there is merit in them, noting the absence of any pleaded claim, can only be adequately assessed after considering whether it is appropriate to make an order for preliminary discovery in this case. For that reason, I determined the applications should be heard together.
Leave may be granted on such conditions as the Court considers appropriate.
The court’s power to order preliminary discovery
Rule 651 of the Court Procedures Rules 2006 (ACT) states: 651 Discovery to identify right to claim relief (1) This rule applies if— (a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and (b) either— (i) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or (ii) the following provisions apply: (A) the applicant is a party to a proceeding in the court; (B) the potential defendant is not a party to the proceeding; (C) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to make a claim for relief in the proceeding against the potential defendant for the cause of action; (D) the claim for relief could properly have been made in the proceeding against the potential defendant if the potential defendant were a party; and (c) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and (d) inspection of the document or thing by the applicant would help in making the decision. (2) If subrule (1) (b) (i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (Inspection, detention, custody and preservation of property—orders etc)) against the potential defendant. (3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for an order under this rule (and, if relevant, an order under rule 715) against the potential defendant. (4) The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made. (5) The court may order the potential defendant to produce the document or thing to the applicant. (6) An order under this rule in relation to any document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation. (notes omitted by this court)
Again, the rule calls for an exercise of the court’s discretion, but in this instance, with clear parameters. The successful applicant must demonstrate: (a) they have or may have a cause of action against a potential defendant; (b) they have made reasonable enquiries and cannot obtain enough information to enable a decision about whether to start court proceedings for their action; (c) they have reasonable grounds for believing the potential defendant has, or had, a document or thing that can assist in deciding whether to start a proceeding; and (d) inspection of the document or thing would help the applicant to make that decision. Is a cause of action identified?
Mr Tapper and Good Day are not required to demonstrate a prima facie case, but they are required to identify with some particularity what the cause of action will be. In Waller v Waller [2009] WASCA 61, quoted with approval by Elkaim J in Hall v Commonwealth [2018] ACTSC 79 at [18], the court observed at [75]: There must be some tangible backing, or objective foundation, that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion: see Kremer B & Davies R, 'Preliminary Discovery in the Federal Court: Order 15A of the Federal Court Rules' (2004) 24 ABR 235.
Mr Tapper says the trust established a fixed return scheme and there has been a failure to comply with the scheme in that no payments have been made since 2022, and there has been a failure to respond to repeated requests for redemption of units in the Bright Unit Trust. He says in those circumstances, the following causes of action may arise: (a) breaches of fiduciary duty; (b) breaches of statutory duty under the Trustee Act 1925 (ACT); (c) damages for unpaid distributions; and (d) recovery of unpaid redemption value.
In addition, against Mr Bright personally, Mr Tapper places reliance upon s 197 of the Corporations Act. That section creates a personal liability for a director of a trustee company incurring a liability that it has not and cannot discharge out of trust assets because of: (a) a breach of trust by the corporation; (b) acting outside the scope of the corporation’s powers as trustee; and (c) a term of the trust deed denying or limiting the corporation’s right to indemnity against liability.
It is conceivable the failure of the Bright Unit Trust to meet its distribution and redemption obligations arises from a breach of trust or actions taken by the company outside its powers as a trustee.
In relation to each of the identified prospective causes of action, the question to be answered is whether the evidence relied upon by Mr Tapper takes those assertions beyond a mere allegation or suspicion. The evidence relied upon may be summarised as follows: (a) Bright Group has failed to respond to repeated requests for redemption of the units held by Good Day; (b) no unit trust distributions have been made since an undisclosed date in 2022; (c) repeated requests for documents in the form of a copy of the trust deed, financial statements and distribution statements have been ignored; (d) a text communication between Mr Bright and Mr Tapper on 2 May 2023 indicating payments were about to begin and would be brought up to date, which on its face is an acknowledgement of a continuing liability; (e) an email communication dated 30 June 2025 from Mr Tapper’s accountant which indicates that he does not hold any documentation regarding the transfer of the units; (f) a subsequent text message communication from Mr Bright to Mr Tapper stating “there are funds in the new trust. I will check with the accountant when these will be available for release” (it is unclear to Mr Tapper what the “new trust” is and why he might be entitled to funds held by it); (g) a communication from Mr Bright’s accountant directed to Mr Tapper’s solicitor to the effect some of the financial statements for the Bright Unit Trust are produced by Mr Bright’s “internal accounts team”; and (h) an email forwarded to Mr Tapper’s solicitor on behalf of the liquidator dated 21 May 2026 indicating the liquidator is still not in possession of any books or records from the director of Bright Group or his accountant.
The material summarised above, when viewed as a whole, provides a sufficient basis to conclude Mr Tapper and Good Day may have a cause of action against Bright Group for failing to distribute income in accordance with the trust scheme, failure to redeem units in the trust when requested to do so and failure to keep or make available relevant financial records. As for Mr Bright personally, it follows if a breach of trust by the trustee company of which he is a director is established there is at least the prospect of a personal liability for Mr Bright. In respect of each of the potential defendants, Mr Tapper and Good Day have established they may have a cause of action. Is there insufficient information available to decide whether to proceed after reasonable enquiry has been made?
I accept the submission put on behalf of Mr Tapper, in the absence of the trust deed itself and the books and records of the trustee company, it is not possible to determine whether to proceed with the identified prospective cause of action.
The evidence demonstrates repeated attempts to obtain access to these documents, to no avail. This limb of the test is therefore satisfied in respect of both potential defendants.
Are there reasonable grounds for believing the potential defendant has, or had, a document or thing that can assist in deciding whether to start a proceeding?
The core of the relevant documents in the form of the trust deed and financial statements for the corporate trustee, if they exist, appear very likely to have been in the possession or control of Bright Group. The evidence also suggests strongly that relevant documents are or have been in the possession of Mr Bright. He contends, to the extent he is in possession of documents or has been in possession of documents, they are or were held in his capacity as a director of Bright Group and are not documents that he has or had in his personal possession or control. The submission of Mr Bright is made in reliance upon the decision of Mossop J in Talada Investments v Rovera Scaffolding [2017] ACTSC 160. In that case his Honour was dealing with an application for further discovery. In the course of his Honour’s reasons, he had cause to address the concept of possession for the purposes of r 605 of the Court Procedures Rules. That rule defines a discoverable document for the purposes of the disclosure provisions. It refers to a document that is or has “at any time been in the possession of a party to a proceeding”. The dictionary to the Court Procedures Rules defines possession as, “in relation to something other than land, includes custody and power.” Mossop J went on in Talada Investments to explore the concept of power for the purposes of discovery. His Honour noted at [24]: It extends to capture those documents where there is a presently enforceable legal right to examine the document.
Mr Bright seeks to apply his Honour’s reasoning to argue any documents he presently holds are documents legally controlled by the liquidator and therefore beyond his “power”. However, the concept of power does not exhaustively define documents a person has or had in their possession. Where Mr Bright presently holds relevant documents, there is nothing arising from the decision in Talada Investments, and the authorities cited therein, to suggest he would be prevented from producing that document in response to a court order without the permission of the liquidator. In any event the liquidator has consented to the orders proposed by Mr Tapper.
Additionally, there is some evidence before me to support the proposition Mr Bright created accounts for his own purposes and also held funds in a trust arrangement separate and distinct from the trust of which the Bright Group was a trustee. Although some evidence was sought to be led from the bar table about these issues, Mr Bright elected not to place any evidence before the court on the hearing of the application to explain the correspondence relied upon by Mr Tapper underpinning the proposition I have described.
As a consequence, there is a reasonable basis for believing each of the potential defendants has or had possession of a document that can assist in deciding whether to start a proceeding or make a claim.
Would inspection of the document or thing help the applicant make a decision about starting a proceeding?
It is almost inevitable disclosure and inspection of the trust deed and the financial statements for the trustee company will help Mr Tapper and Good Day make a decision about whether to start a proceeding and about the nature of the cause of action they may seek to bring.
For the reasons given above this is an appropriate matter in which to exercise the discretion contained in r 651 of the Court Procedures Rules, requiring each of the potential defendants to produce documents as set out in the terms of the order. I will require the parties to agree to certain undertakings as to confidentiality of the documents produced. As a consequence, it is appropriate leave is given pursuant to s 471B of the Corporations Act.
As to costs, the applicant will be required to pay the costs of each of the respondents producing documents, subject to the court’s orders. In the event Mr Tapper and Good Day commence proceedings, the costs order will be subject to any further order of the court. For example, an order may be made that costs of discovery be costs in the cause, a similar order will be made in respect of the costs of this application.
Orders
I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 3 June 2026
Good Day Sunshine Pty Ltd
Bright Partners Management Group Pty Ltd as Trustee for the Bright Partners Unit Trust