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[2025] NSWSC 1249
General information, not legal advice.
Supreme Court of NSW
2025-10-16
Cavanagh J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ryan Property Investment Pty Limited v Edenvell Pty Limited [2025] NSWSC 1249
Hearing dates: 16 October 2025
Date of orders: 16 October 2025
Decision date: 16 October 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) Order that leave be given to the plaintiff to amend its notice of motion in the form proposed, tilted ‘amended notice of motion’ dated 26 September 2025, with one change, to order 1 of the motion noting that the relevant Uniform Civil Procedure Rules 2005 (NSW) rule is r 5.3.
(2) Order that the plaintiff’s motion for preliminary discovery be granted.
(3) Order within 14 days, the defendant give discovery pursuant to r 5.3 of the UCPR to the plaintiff, of categories 1 and 2, being financial records and council and regulatory documents, of documents sought in the plaintiff’s motion, in the categories marked as annexure ‘A’ to these orders.
(4) Direct that Div 1 of Pt 21 of the UCPR applies to and in respect of discovery and inspection of documents the subject of order 2 in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that division.
(5) No orders as to costs of the application.
(6) The plaintiff to pay the defendant’s reasonable costs of and incidental to the discovery process.
(7) Stand the matter over before the Common Law Registrar on 17 December 2025.
Catchwords: CIVIL PROCEDURE – discovery from prospective defendant pursuant to r 5.3 of the UCPR – principles to be applied in applications for preliminary discovery – motion for preliminary discovery granted
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 5.3
Cases Cited: B & J Hudghton Investments Pty Ltd as trustee for the B & J Hudghton Family Trust v Lakeba Group Limited [2022] NSWSC 830
Muscat v Qin [2024] NSWSC 113
O’Connor v O’Connor [2018] NSWCA 214
Texts Cited: Nil
Category: Procedural rulings
Parties: Ryan Property Investment Pty Limited (Plaintiff)
Edenvell Pty Limited (Defendant)
Representation: Counsel:
J Polese (Plaintiff)
L McIntyre (Defendant)
Solicitors:
Rose Legal (Plaintiff)
Marsdens Law Group (Defendant)
File Number(s): 2025/00139987
Publication restriction: Nil
Pursuant to an amended notice of motion which I granted leave to file in Court today, the plaintiff, Ryan Property Investment Pty Ltd seeks orders for preliminary discovery pursuant to r 5.2, Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The documents sought by the plaintiff are listed in the notice of motion and comprise financial records, council and regulatory documents and documents described as joint venture documents. Mr Polese appears for the plaintiff. Mr McIntyre appears for the defendant.
The defendant opposes the orders sought in the motion on a number of grounds, including that:
The defendant has already complied with the earlier orders made by the Registrar for preliminary discovery, and to the extent that further documents are being sought by the plaintiff relating to what is described as the “eastern development” or “eastern project”, the defendant is happy to provide those documents.
The plaintiff does not need the documents in order to determine whether or not the plaintiff might have a cause of action. The defendant submits that this is evidenced by the fact that the plaintiff has been able to draft a proposed statement of claim setting out a cause of action and the grounds on which the plaintiff is seeking to sue the defendant.
On the face of the information provided by the plaintiff in support of the application it could not be that the plaintiff could have any cause of action. In particular, the defendant submits that having regard to a plan which was originally attached to the project agreement which was omitted from the evidence relied upon by the plaintiff, it is clear that the project the subject of the dispute between the parties did not encompass what is known as the “western development”, “western area” or “western project”.
The background to this dispute is that in 2002 the plaintiff and other parties including the defendant entered into a project agreement. At that time, the plaintiff was known as Tasman Financial Planning Pty Ltd. One of the parties was Edenvell Pty Ltd, who is the named defendant on this motion. There were other parties including Clifford Developments Pty Ltd and a number of individuals.
As set out in the project agreement, the defendant was the registered proprietor of an area which is defined in the agreement as “the land”. The defendant proposed to develop the land by conducting the project. “The project” is also a defined term. The plaintiff agreed to invest in the project in return for the right to receive 25% of the project profits. The plaintiff and the defendant agreed to appoint Clifford as the project manager.
It seems that in accordance with the project agreement, development of the eastern project proceeded initially and was finalised. At some stage thereafter there was a further development, being the western project.
There is a dispute between the parties as to whether both the eastern and western projects were governed by the project agreement or whether only the eastern project was governed by the project agreement. There was a plan annexed to the project agreement, part of which is shaded in yellow and part of which is not. The defendant submits that only the area shaded in yellow was governed by the project agreement, such that once that area was developed the obligations and duties under the project agreement came to an end.
The fact that the defendant as the registered proprietor of the land went on to develop a further area shown in the plan (being the unshaded area) is irrelevant. The defendant submits the plaintiff has no rights or obligations in respect of that subsequent development.
However, the plaintiff says that the area of land governed by the project agreement comprised the whole of the area, not just the yellow shaded area. In particular, the plaintiff relies on the definition of “project” and “land” in the project agreement to assert that the whole area ultimately developed was governed by the project deed.
The effect of the plaintiff’s submission is that it should have received an accounting of profits in respect of not only the eastern development but also the western development. There has been an accounting of profits in respect of the eastern development (which the plaintiff says has been inadequate in any event) but the defendant has never accounted to the plaintiff for any profits received arising out of the development of the western area.
The plaintiff says that it wishes to pursue proceedings against the defendant. Mr Polese summarised the potential causes of action as having two bases, being:
That under the terms of the project deed the whole of the area set out on the plan was governed by the deed and that the defendant has not accounted to the plaintiff for the profits recovered as a result of the development of the whole area.
In the alternative, if the plaintiff be wrong on this, the defendant has inappropriately diverted or used money from the eastern development to fund the western development such that the plaintiff has been excluded from a proper accounting of profits in respect of the eastern development.
As I said, the defendant’s response is to say, firstly, that the project deed only governs the eastern development and, secondly, in these circumstances it is not required to account to the plaintiff for anything that occurred in respect of the western development. Of course, I should say that the case will be much more complicated than that but for the purposes of this preliminary discovery application I am merely outlining the general basis of the claim.
The Registrar has already ordered preliminary discovery. There is some uncertainty as to whether the plaintiff is seeking to enforce the earlier order for preliminary discovery or rather seeking a new order. In circumstances in which the plaintiff has already made one application for preliminary discovery and the defendant has complied or at least arguably complied, ordinarily the plaintiff would not be entitled to have another go.
The problem is that at the time of the first application the plaintiff was unrepresented. Whilst it is not the function of this Court to give advice to unrepresented persons, it is apparent from the terms of the earlier motion and affidavit that what the plaintiff was actually seeking was unclear and ambiguous and the parties have taken a different approach to what the orders were.
In the circumstances, I do not consider that the fact that the plaintiff previously sought similar orders when unrepresented precludes the plaintiff from seeking a further order which is pursued with greater specificity and particularity.
The principles to be applied in an application pursuant to r 5.3, that is an application for preliminary discovery, are well known. They have been conveniently summarised in a number of cases, in particular by the Court of Appeal in O*’Connor v O’*Connor [2018] NSWCA 214 (“O’Connor”). I have also been referred to helpful analysis provided by Rees J in B & J Hudghton Investments Pty Ltd as trustee for the B & J Hudghton Family Trust v Lakeba Group Limited [2022] NSWSC 830 and more recently by McGrath J in Muscat v Qin [2024] NSWSC 113.
As set out in O*’Connor and subsequent judgments, it is necessary that the Court be satisfied of a number of things before making an order for preliminary discovery. Those things were set out by Rees J in O’*Connor at [21]:
“(i) that the applicant may be entitled to make a claim for relief against the prospective defendant;
(ii) that the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;
(iii) that, having made those enquiries, the applicant is unable to obtain sufficient information to make that decision;
(iv) that the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief;
(vi) that inspection of such a document would assist the applicant to make the decision (that is, the decision whether or not to commence proceedings).”
Before considering each of those five matters in detail I will return to what I understand to be the essential basis of the plaintiff’s claim. As I said, it has perhaps two prongs. The first, that is that the western development was covered by the project deed, seems to me to be a matter of construction. There might be some evidence from the parties about it but, in general terms, the Court looks to the terms of the document to construe it. There is a plan. There are definitions. The land is defined. The project is defined. I assume there will be arguments about ambiguity. It does not seem to me that it would be necessary for the plaintiff to obtain an order for preliminary discovery in order to pursue that first argument.
Mr McIntyre is correct in asserting that if that claim is pleaded then, in the usual way, discovery can be sought at some stage in accordance with the practice note. To the extent that the parties might be at issue as to construction and seek discovery of documents, they can do so once the case has commenced.
The alternative argument is perhaps in a different category. There appears to be no dispute between the parties that there has been no accounting of profits to the plaintiff in respect of the western development. This is because the defendant says the plaintiff has no rights arising out of that development and it is not required to account to the plaintiff for anything.
The plaintiff not being in possession of any documents relating to the 2014 project is thus not in a position to determine whether it may have a cause of action, being the alternative cause of action, that is that there has been use of money from the eastern project to fund the western project or some diversion of funds from the eastern profits to the western project.
Returning now to the five things that are necessary for the plaintiff to establish.
The applicant may be entitled to make a claim for relief against the prospective defendant.
The plaintiff has established this. Plainly if the plaintiff’s contention as to the construction of the agreement is correct it will be entitled to pursue a claim against the defendant. Further, if the plaintiff’s contention that the defendant has used funds from the eastern project to fund the western project or some variation thereof, the plaintiff will be entitled to pursue a claim against the defendant based on any construction of the project deed.
The applicant has made reasonable inquiries to obtain sufficient information to decide whether or not to commence proceedings.
It is not clear to me where else the plaintiff could look for the information other than in the accounts and financial information of the defendant. In those circumstances there does not appear to be any other inquiries that the plaintiff could be making to obtain the information.
Having made all inquiries, that the applicant is unable to obtain sufficient information.
Again, the plaintiff has sought the documentation from the defendant. It has not been provided because the defendant says it is not required to provide it.
The prospective defendant may have or has had possession of a document that could assist in determining the application.
The defendant does not say that it does not have the documents sought. Nor does it say that it would be oppressive to produce the documents. No submission was made by the defendant that it does not have the documents or cannot produce them or that it would be oppressive to produce them.
The prospective defendant may have possession of a document which could assist in determining whether the applicant is entitled to make a claim for relief.
Again, having regard to the potential claims articulated by the plaintiff, the defendant does not assert that the documents would not assist the plaintiff to obtain the documents.
I emphasise that the real point made by the defendant are those I have already suggested. That is, irrespective of production of the documents the plaintiff would have no case and that the defendant has already provided all relevant documents to the plaintiff pursuant to the earlier orders.
In all the circumstances I am satisfied that having regard to the case which the plaintiff intends or wishes to pursue and having regard to the very clear issues as identified by the terms of the project agreement and the plan, that there is a dispute as to what is governed by the project agreement. I am satisfied that the orders sought by the plaintiff should be made.
However, I accept the submission of the defendant that the documents set out in par 3, being joint venture documentation, should not be required to be produced. Firstly, they seek legal advice. I am uncertain as to how that would be relevant to determination of whether the plaintiff can pursue a claim. Secondly, when I raised with Mr Polese what the meaning of it was, with respect to Mr Polese, he was not able to satisfy me as to what documents were actually being sought.
In the end it seems to me that the plaintiff is entitled to have access to the financial records relating to the western development and the council and regulatory documents relating to the western development so as to determine whether there is a sufficient basis for pursuing the cause of action which the plaintiff wishes to pursue. In those circumstances I make the relevant orders.
At the end of the application, the defendant sought an order that the plaintiff pay the costs of the defendant’s compliance with the orders I made. Mr Polese did not resist that but submitted that it will be a matter between the parties to work out. I accept that submission.
In the circumstances, I make the following orders:
Order that leave be given to the plaintiff to amend its notice of motion in the form proposed, tilted ‘amended notice of motion’ dated 26 September 2025, with one change, to order 1 of the motion noting that the relevant Uniform Civil Procedure Rules 2005 (NSW) rule is r 5.3.
Order that the plaintiff’s motion for preliminary discovery be granted.
Order within 14 days, the defendant give discovery pursuant to r 5.3 of the UCPR to the plaintiff, of categories 1 and 2, being financial records and council and regulatory documents, of documents sought in the plaintiff’s motion, in the categories marked as annexure ‘A’ to these orders.
Direct that Div 1 of Pt 21 of the UCPR applies to and in respect of discovery and inspection of documents the subject of order 2 in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that division.
No orders as to costs of the application.
The plaintiff to pay the defendant’s reasonable costs of and incidental to the discovery process.
Stand the matter over before the Common Law Registrar on 17 December 2025.
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Ryan Property Investment Pty Limited
Edenvell Pty Limited [2025] NSWSC 1249