The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd

Solicitors: Bannermans Lawyers (plaintiff/respondent) Stanford Lawyers (second defendant/applicant) File Number(s): SC 2011/63243

Judgment 1By Notice of Motion filed in court on 11 May 2012, the second defendant, Baron Corporation Pty Ltd ("Baron") seeks to set aside a Notice to Produce dated 4 April 2012 served on it by the plaintiff. 2Relevantly, the Notice to Produce sought production of the following documents: - "(1) All profit and loss statements, balance sheets, cash flow statements and tax returns of Baron Corporation Pty. Ltd. (ACN 001 406 873) for the periods ending 30 June 2001, 30 June 2002, 30 June 2003, 30 June 2004, 30 June 2005 and 30 June 2006. ... (4) Copies of all documents, letters and facsimiles generated by, or correspondence and file notes of oral conversations with, any financier/bank providing finance for the Development Project to any or all of Baron Corporation Pty Limited (ACN 001 406 873), Metro Village Development Pty Limited (ACN 050 037 566) (Deregistered) and/or Oldtex Pty Limited (ACN 003 163 924 including, without limitation: (a) all mortgages (registered and unregistered), charges (fixed and/or fixed and floating), debentures or any interests by way of security over any assets of the company; (b) all directors' guarantees and/or indemnities; and (c) all agreements to create, confer or give any of the rights of interests in 4(a)." 3By letter dated 9 May 2012, the plaintiff's solicitors refined and expanded the documents sought in paragraph 4 of the Notice to Produce as follows: - "3. Calls upon the documents specified in paragraph 4 of the Notice to Produce to the extent the documents relate to the Development Project (as defined in the Notice to produce) and any security (including without limitation any charges and mortgages). 4. Further in relation to paragraph 4 of the Notice to Produce, my client specifically calls upon: a. The document referred to as 'A Development Agreement in respect of the Property made between [Metro] and Baron Corporation Pty Limited' in the document annexed to the Notification of details of charge form 309 submitted to the ASIC by Phillip Bart on 20 December 2001. b. The 'Facility Agreement made between [Metro], [Macquarie Bank Limited] and Others and other Transaction Documents' referred to on page 1 of form 309 submitted to the ASIC by Phillip Bart on 26 June 2004 to the extent that they relate to Baron Corporation Pty Ltd." (emphasis in original) 4The Notice to Produce was served pursuant to Uniform Civil Procedure Rules (2005) ("UCPR") r 21.10 which provides that the notice must call for production of, relevantly, a "specific document or thing that is clearly identified in the notice". 5It is plain that the Notice to Produce, as served, did not seek production of specific documents clearly identified: see Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 per Barrett J, in which he cited with approval the observations made by Brereton J in Norris v Kandiah [2007] NSWSC 1296. 6As those authorities, and indeed the words of the rule, make clear, a Notice to Produce served pursuant to UCPR r 21.10 must identify specific documents (not merely classes of documents, no matter how specifically those classes are described). 7Although two specific documents are referred to in the plaintiff's solicitor's letter of 9 May 2012, the Notice to Produce of 4 April 2012 does not refer to "specific documents". It must be set aside. 8However, it is common ground that the plaintiff could overcome this problem by serving a Notice to Produce pursuant to UCPR r 34.1. That rule enables service of a notice requiring production of, relevantly, "any specified document". 9A document is "specified" where it is described or identified. A notice under UCPR r 34.1 plays in relation to a party the same role as is played under UCPR r 33 by subpoena in relation to a non-party: see Barrett J in Patonga Beach Holdings at [12]. 10In those circumstances, the plaintiff and Baron have invited me to express a view about the relevance of the documents sought, and the impact of Practice Note SC Eq 11, on the assumption that the plaintiff serves a UCPR r 34.1 Notice to Produce in the same terms (as refined in the letter of 9 May 2012) as the one presently under consideration.