United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156 | Case summary | Zoe

NSWNSWSC

United Crib Blocks Construction Pty Ltd v Asmaro

[2025] NSWSC 1156

Supreme Court of NSW|2025-10-03|Before: Bennett J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-10-03

Before

Bennett J

Catchwords

CIVIL PROCEDURE — Notices to produce — Before hearing —
Practice Note SC Eq 11 — Application to set aside
— Whether practice
notes have the status of statutory rules — Whether notice to produce

Source

Original judgment source is linked above.

Catchwords

CIVIL PROCEDURE — Notices to produce — Before hearing —Practice Note SC Eq 11 — Application to set aside— Whether practicenotes have the status of statutory rules — Whether notice to produceissued by the plaintiff to thedefendants subverts the operation of PracticeNote SC Eq 11

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156

Hearing dates: 1 August 2025

Date of orders: 3 October 2025

Decision date: 03 October 2025

Jurisdiction: Equity

Before: Bennett J

Decision: (1) The Notice of Motion filed on 29 November 2024 is dismissed.
(2) The proceedings are listed before the Registrar in Equity on 20 October 2025.
(3) The costs of the Notice of Motion be costs in the cause.

Catchwords: CIVIL PROCEDURE — Notices to produce — Before hearing — Practice Note SC Eq 11 — Application to set aside — Whether practice notes have the status of statutory rules — Whether notice to produce issued by the plaintiff to the defendants subverts the operation of Practice Note SC Eq 11

Legislation Cited: Civil Procedure Act 2005 (NSW), s 15
Supreme Court Act 1970 (NSW), s 124
Interpretation Act 1987 (NSW), ss 40, 41
Uniform Civil Procedure Rules 2005 (NSW), rr 34.2(1), 42.7(1)

The substantive proceedings were commenced by Statement of Claim (SOC) filed on 20 May 2024. The Amended Defence (AD) was filed on 13 September 2024. For the purposes of this section only, I will refer to the Respondent as the plaintiff and the Applicants as the defendants, reflecting their roles in the substantive proceedings. The first defendant is a former employee of the Respondent, and a director of the second defendant.
In its SOC, the plaintiff seeks an order restraining each of the first and second defendants, and the servants or agents of the second defendant, from using confidential information of the plaintiff indefinitely or, in the alternative, for such period as determined by the Court (prayer 1). Prayer 18 also contains a materially similar order restraining the first defendant, second defendant, and any employee, officer or agent of the second defendant from using or continuing to use the confidential information of the plaintiff. The SOC also seeks:
declarations under the Corporations Act 2001 (Cth) (Corporations Act) that the first defendant misused his position as an employee and information obtained as an employee to improperly gain an advantage for himself or the second defendant, in breach of ss 182-183 (prayers 2-4);
a declaration under the Corporations Act that the second defendant was either involved in the first defendant’s alleged breaches of ss 182-183 or itself breached those provisions (prayer 5);
declarations that the first defendant breached obligations to the plaintiff arising from the former’s contract of employment, fiduciary duties owed to the plaintiff by the first defendant and an equitable duty of confidence owed to the plaintiff by the first defendant (prayers 6, 7, 10);
a declaration that the second defendant knowingly assisted the first defendant in the alleged breaches of contract, his fiduciary duties and his duty of confidence (prayer 12);
orders for an inquiry and account to be taken of all the dealing and profits of the work, contracts or other benefits obtained by the second defendant from the use of the plaintiff’s confidential information or intellectual property, with compounding interest (prayers 8-9), or compensation pursuant to s 1317H of the Corporations Act (prayer 11); and
a payment in the sum of $192,928.16 (plus GST), justified on various alternative bases (prayers 13-17).
In broad terms, the SOC alleges the first defendant misused confidential information or breached duties owed in relation to that information that he obtained while he was an employee of the plaintiff, namely by giving that information to the second defendant (a corporate entity which the first defendant set up). The SOC also pleads that the first defendant and/or the second defendant solicited two clients of the plaintiff, Mainbrace Constructions (Mainbrace) and Burton Contractors Pty Ltd (Burton Contractors).

On 15 October 2024, the Respondent filed the NTP that is the subject of this Motion. In summary, the NTP sought:
all correspondence between the Applicants and each of Mainbrace and Burton Contractors from 1 March 2023 to “date”, and all invoices and receipts issued by the Applicants to those companies from 1 August 2023 to “date”;
“all documents” relating to a tender submitted by the second defendant to Mainbrace concerning the installation of a retaining wall at 17 Sterling Road, Minchinbury;
“all documents” relating to the design and construction of a retaining wall at 427 Precinct Road, Eastern Creek; and
all correspondence between the Applicants and 21 other companies from 1 March 2023 to “date” and all invoices and receipts issued by the Applicants to those 21 other companies from 1 August 2023 to “date”.
The NTP comprises 48 paragraphs of requests, of which the first 6 paragraphs relate to Mainbrace and Burton Contractors (as described by subparagraphs (1)-(3) of my summary above). The 21 other companies in relation to which documents are sought, by way of the requests in paragraphs 7-48 of the NTP, are derived from a specified list of clients prepared by the first applicant when he was employed by the Respondent.
The 42 other paragraphs of the NTP which seek from the Applicants correspondence, invoices and receipts concerning 21 other companies are similar in form. For each of the 21 other companies named in the NTP, there are two separate paragraphs seeking the information described at [12(4)] above.
Not all paragraphs of the NTP were ultimately pressed. Specifically, paragraphs 13-14, 25-26, 27-28, 35-36 and 37-38 were no longer pressed by the Respondent. Each pair of paragraphs related to a particular company. Those portions of the NTP which were still pressed concerned 16 companies. This judgment is only concerned with those paragraphs of the NTP that are still pressed.
This procedural context appears to provide some explanation as to why the current Motion before the Court has been filed by the Applicants seeking orders for the NTP to be set aside, rather than a motion filed by the Respondents making an application for an order for disclosure, having addressed the issues set out at paragraph [6] of Practice Note SC Eq 11 (the Practice Note).
On the issue of the above “commentary”, the Applicants made the following submission (in their written submissions in reply, at [6]): “… the Acting Registrar’s commentary is not admissible as a gloss on the operation of the Practice Note, nor as an authoritative statement of principle. For that reason, Exhibit E is of very limited utility”. I accept this submission and note the core utility of the commentary as providing procedural context to these proceedings.

The Respondent carries on a business of providing commercial and residential construction services, including in respect of the supply of construction and certification of retaining walls in New South Wales, Queensland and Victoria.
Mr Asmaro was employed by the Respondent from December 2019 to September 2023. What exactly Mr Asmaro did whilst working with the Respondent is not clearly spelled out in the evidence. However, as part of his role, he was closely involved in the creation and maintenance of an important document, which the parties referred to as the “Job Details” document. It is the contents of this document around which much of the dispute between the parties (both this interlocutory contest and the broader dispute) centres.
At a high level, this document contained, amongst other information:
a list of businesses to whom the Respondent had submitted a tender (whether or not the tender was successful), including information about jobs in relation to which a tender was submitted; and
information as to the status of a given tender.
The existence of the “Job Details” document is not in dispute.
Additionally, it does not appear to be in dispute between the parties that Mr Asmaro was closely involved in the creation and maintenance of the document.
Both Mr Asmaro and Mr Bouhoutsos gave evidence that Mr Asmaro was the one who created the document when Mr Asmaro was employed by the Respondent. Mr Bouhoutsos deposes that Mr Asmaro had “primary control” of the document whilst he was employed, being one of only four employees who had access to the document. He says Mr Asmaro was in charge of monitoring tenders and so maintaining the Job Details document formed part of his job. Mr Asmaro says he “was the only person responsible” for updating the document. He deposes to having updated the Job Details document every now and then, and that he believed he had had a “large hand in drawing up” the document. He also recalls building a formula in Microsoft Excel (the application in which the Job Details document was drawn up) to automatically update parts of the document.
There are two relevant versions of this document, a 2022 version and a 2023 version. The 2022 version was the version of the document drawn on to come up with the list of the businesses in relation to which the NTP seeks documents. However, Mr Bouhoutsos deposes that the 2023 version of the document contains many of the businesses as referenced in the NTP and that the companies named in the NTP (excluding those companies in relation to whom production is no longer pressed) are ones with whom the Respondent continues to have an ongoing relationship of some sort. That is because those companies provided work to the Respondent or because the Respondent still has contact with those companies, either because it submits tenders or because it receives pricing inquiries.
As was earlier mentioned, Mr Asmaro’s employment with the Respondent ended in September 2023. Shortly before Mr Asmaro’s employment ended, he became a director of the second applicant, whose business includes the provision of commercial and residential construction services. In its Amended Defence, the Applicants deny that the second applicant is a “direct competitor” of the Respondent, but Mr Asmaro’s affidavit evidence suggests there may be at least some competition between his company and the Respondent either now or potentially in the future.
The only job won by Mr Asmaro’s company in its first 12 months of operation was for a project in Minchinbury, awarded by Mainbrace. The NTP sought documents in relation to the awarding of this job which the Applicants say they have produced (the Respondent mentioned it may wish to challenge the sufficiency of that production, but the point was taken no further before me).
The Applicants in their evidence question whether the information contained in the Job Details document really is confidential. The Applicants also put on evidence to suggest that he could not practically have taken a copy of the “Job Details” document with him.

The Applicants’ submission that practice notes have the status of statutory rules must be rejected.
The provisions referred to by the Applicants, ss 15(2)-(3) of the CPA and s 124(11)-(12) of the Supreme Court Act, are in different terms but materially similar in effect. Those provisions require practice notes issued by the Court to be published in the Gazette and say that ss 40 and 41 of the Interpretation Act 1987 (NSW) (Interpretation Act) “apply to a practice note in the same way as they apply to a statutory rule.”
Sections 40 and 41 of the Interpretation Act respectively provide for a requirement that written notice of the making of a statutory rule be placed before each House of Parliament and for the ability of either House of Parliament to pass a resolution disallowing a statutory rule. There is further detail to those provisions but it is immaterial for present purposes.
Plainly, the provisions cited by the Applicants in support of this submission require practice notes to be published in the Gazette and put before the Parliament in the same way other statutory rules are. There is, however, nothing in those provisions which elevates practice notes to having the status of statutory rules.
No further submissions were made justifying why practice notes should be treated as having the same status as statutory rules.
For completeness, I note that while the Interpretation Act does bring a rule of court within the definition of “statutory rule” (see Sch 4 of the Interpretation Act), in both the CPA and the Supreme Court Act, a practice note is conceptually distinct from a rule of court. Nothing in those Acts says a practice note is a rule of court, and it has been said that practice notes will give way to rules of court where the two are in conflict: see Welzel v Francis (2010) 77 NSWLR 92; [2010] NSWSC 75 at [12] (Einstein J).
For those reasons, the Applicants’ submission that the Practice Note has the same status as a statutory rule should be rejected.
However, my conclusion that practice notes, including the Practice Note, do not have the status of statutory rules does not reduce practice notes to “mere or hollow” statements of this Court’s procedure. As Bergin J said in Baulderstone Hornibrook Pty Limited v HBO+DC Pty Limited [2001] NSWSC 821 at [14]:

The Applicants’ submissions focused closely on the Practice Note. Their submissions took the following course:
The parties have not yet completed the service of their evidence in the main proceedings, meaning that the proceedings were at a stage where the Practice Note applied to any orders for disclosure.
The Practice Note itself should not be understood as limited to applications made for discovery orders, but also to processes such as notices to produce and subpoenas. The Applicants specifically submitted that the NTP, as a notice to produce under r 34.1 of the UCPR, was “a process of disclosure to which the Practice Note applies, with the consequence that it ought not have issued without leave of the Court” (AOS at [27]).
Consequently, the Respondent could only have issued the NTP if it could show “exceptional circumstances necessitating disclosure” and that “disclosure is necessary for the resolution of the real issues in dispute”.
The Respondent has, according to the Applicants, failed to demonstrate exceptional circumstances necessitating disclosure and why disclosure is necessary in this case.
Thus, the NTP should be set aside.
In its written submissions, the Respondent did not initially engage directly with the Applicants’ contentions regarding the application of the Practice Note. At [38] of the ROS, the Respondent submitted that the Applicants “have not established that the call in the NTP is an application for disclosure to which Practice Note SC Eq 11 applies”.
The Respondent also submitted that the Court “would also not conclude that the NTP is, in any way, an attempt to subvert Practice Note SC Eq 11” (ROS [38]). That is so because the NTP “is simply a call for the contact that the [Applicants] have had with a specific list of the [Respondent]’s clients sourced from a highly confidential document developed by the [first applicant] during his employment with the [Respondent].”
In its oral submissions, the Respondent submitted that if the Practice Note applied, then “exceptional circumstances” as understood for the purposes of the Practice Note were present here. It submitted that the information sought by the NTP was “information that’s solely within the knowledge of the [Applicants]” (TR P22 L1-2).
The tenor of the Respondent’s written and oral submissions on this issue is summarised below:
The documents produced by the Applicants in answering the first six paragraphs of the NTP suggest that one or both of the Applicants may be soliciting Burton Contractors and Mainbrace and misusing the Respondent’s confidential information to do so (namely, the confidential client list referred to earlier in these reasons).
The extent of the Applicants’ alleged misuse of confidential information, including but not limited to the previously mentioned client list, is a real issue in the proceedings.
Information as to the full extent of the Applicants’ alleged misuse of confidential information, particularly any ongoing misuse, could only be obtained from the Applicants directly.
Therefore, the Court should not set aside the NTP as that is the only way the Respondent can find out the full extent of the alleged breaches of contract, duties of confidence and Corporations Act duties.
I note here that the Respondent did not explicitly link the submissions made above to paragraphs 4 and 5 of the Practice Note, save for the reference at the start of its oral submissions. However, given the Respondent orally referred to the knowledge asymmetry between the parties as showing “exceptional circumstances”, it is convenient to address these submissions here.

To repeat what I said in [40] above, while the Practice Note does not, in terms, apply to notices to produce, nonetheless a notice to produce may be set aside where it is used as a means to obtain disclosure of documents and subvert the Practice Note. To the extent the Respondent’s submissions suggested otherwise, those should be rejected.
However, I am not satisfied that the NTP constitutes an attempt to subvert the Practice Note.
The NTP does not seek the disclosure of documents in overly wide and general terms. The disputed portion of the NTP seeks the production of documents in relation to 16 companies. However, in relation to each company, the NTP seeks only the correspondence passing between either of the Applicants and a specified company from 1 March 2023 to 15 October 2024, and invoices or receipts issued by one or other of the Applicants to a specified company from 1 August 2023 to 15 October 2024. The request for documents is confined, and no complaint is made by the Applicants about the paragraphs of the NTP being vague, oppressive or otherwise unanswerable.
I also do not view the NTP as engaging in a “fishing exercise” in the sense that the documents sought were not apparently relevant to the proceedings. The documents do appear to be apparently relevant to these proceedings. The SOC pleads at [28]-[32] that the first defendant (ie, the first applicant) used the Respondent’s confidential information for the second defendant’s (ie, the second applicant’s) benefit even prior to his departure from the Respondent. It also pleads at [40] that the first defendant has attempted to solicit clients of the Respondent for the benefit of the second defendant. The Applicants have denied both allegations.
I acknowledge that, save for the allegations concerning Mainbrace and Burton Contractors, the misuse of confidential information is not particularised in relation to other specifically named clients. But clearly, a key element of the dispute between the parties will concern whether information alleged to be confidential was misused by the Applicants. Additionally, as the Respondent pointed out, the list of 16 companies in relation to which documents are sought have not come from nowhere. They come from a version of the “Job Details” document referred to earlier in these reasons. That document is expressly referred to in the pleadings as part of the (allegedly) confidential information received and (allegedly) misused by the Applicants.
I do not need to enter the debates had as to whether the information contained in the documents is in fact confidential, or as to whether the "Job Details” document that was in evidence for the purposes of this Motion is the most relevant version of that document. It suffices to say that the documents and communications sought by the NTP as part of this matter are likely to go directly to matters in issue.
Against the possibility I am wrong in my conclusion that the NTP is not attempting to subvert the Practice Note, I will consider whether the NTP might otherwise still not run afoul of the Practice Note because “exceptional circumstances necessitating disclosure” have been shown. For the reasons which follow, I am still satisfied that “exceptional circumstances” have been made out. In my opinion, the documents sought by the NTP are otherwise necessary for the fair disposal of the matter and in the interests of a fair trial.
The Respondent submitted that, to the extent its case that the Applicants are misusing its confidential information is made out, it does not know the extent of the misuse. What seems to follow from this submission is that what is sought by the NTP is necessary to properly assess the scope of its case, both as to the quantum of damages that might flow to it, but also in making good its pleaded case that the Applicants did misuse confidential information.
Whether the Respondent’s allegations as to misuse of confidential information will eventually be made good at any eventual trial is one matter. Furthermore, as I explain later in these reasons (see [90] below), I do not accept the Respondent’s submission that the information sought from the Applicants by the NTP is strictly within only the Applicants’ knowledge. However, I accept on the material before me that, notwithstanding it was able to put a case in respect of Burton Contractors and Mainbrace, the Respondent is not in possession of information that would allow it to assess in full and make good its case as to misuse of confidential information.
Necessarily, the Respondent would not be in possession of the communications or invoices that passed between the Applicants and others. The NTP enables the Respondent to have more information concerning the extent to which, on its case, its confidential information was misused, and the information being sought is information which is largely in the knowledge of the Applicants. These considerations seem to provide the necessary exceptional circumstances (see [46] above, see also Mempoll at [21] (Black J)).

The Respondent’s submissions focused especially on this issue. It submitted that the just, quick, and cheap resolution of the real issues in the proceedings would be facilitated by requiring compliance with the NTP because the full extent and effect of Applicants’ conduct, particularly the first defendant’s alleged breaches of duties, will not otherwise be known.
The Respondents also submitted that there would be a “risk of further and unnecessary delay in the proceedings” (ROS [33]) if the NTP were set aside, as denying the Respondent access to the information sought within the NTP “would unnecessarily obscure the extent of the [Respondent’s] case.” In oral submissions, the Respondent added to this contention by submitting that learning of the full extent of any breaches of duty by the Applicants, which it says is only possibly by the Applicants complying with the NTP, after the close of evidence would add unnecessary costs to the proceedings. This is so because there would then need to be further amendments to the pleadings and further evidence put on.
The Applicants’ submissions did not directly contend with this more general question. Their submissions, as I understood them, started from the premise that the purpose of the Practice Note is to facilitate the just, quick and cheap resolution of the issues in dispute in proceedings in the Equity Division. From that starting premise, it followed that attempts to seek disclosure from the Applicants in a manner which subverted the Practice Note are themselves not actions which facilitate the just, quick and cheap resolution of proceedings.
More specifically, at AOS [17], the Applicants submitted that in circumstances where the Respondent’s specific claim for damages or compensation is of a “modest sum” ($192,928.16), the likely costs of compliance with the NTP are not justifiable in comparison. In response to this specific contention, the Respondents submitted orally that the Applicants have not pointed to any reason complying with the NTP would be onerous in some regard.

In my opinion, compliance with the NTP would facilitate the just, quick and cheap resolution of the proceedings in this case.
There has been no progress regarding the service of evidence in these proceedings to date.
I approach this question keeping in mind that, as I decided above, the NTP seeks from the Applicants material of a fairly defined nature which is at least apparently relevant in the proceedings.
While it is not strictly correct to say, as the Respondent submitted, that what is sought by the NTP is only within the Applicants’ knowledge (for reasons I explain below), there is much force in the Respondent’s contentions that as things stand, it would be an inefficient course to now delay the provision of the documents sought by the Respondent.
The NTP seeks documents recording communications between the Applicants and other parties, and invoices or receipts issued by the Applicants to other parties. Necessarily then, the other parties to the communications or recipients of the invoices or receipts, that is, the 16 companies named in the still-pressed parts of the NTP, would also possess knowledge of those communications and documents. In fairness, the Respondent’s written submissions seemed to acknowledge this when, at ROS [42], it argued that it “would not be appropriate to issue a multitude of subpoenas to the [Respondent’s] clients at this time”.
Why it would not be appropriate to issue subpoenas at this time is not explained by the Respondent. However, in its written response to this submission, at AOS-R [31], the Applicants contend the reason the subpoenas would be inappropriate are because the Practice Note applies. It does not contend later subpoenas would, for example, be liable to be set aside. Further, at AOS-R [32], the Applicants say the Respondent’s director could have instead asked a responsible person within each of the 16 companies to assess if, in fact, the Applicants have done what the Respondent alleges they have done. These arguments by the Applicants suggest, even if indirectly, that what is being sought by the NTP will likely be relevant to the case.
To my mind, the question then is not necessarily whether the documents sought in the NTP could ever be requested. It should be clear that, in my view, the requests are proper. The question is when those requests could be made.
I accept the Respondent’s submissions that setting aside the NTP now would bring about delay and further costs. Whether the pleadings would need to be amended to take into account anything found in the documents sought by the NTP is not a question I need to decide. But it should be accepted that any documents which uncovered evidence of potential breaches of duty or contract could be part of the Respondent’s evidence in this case, at the very least in so far as the quantum of any compensation is concerned. Accepting that point means that delaying the provision of these documents to after the service of evidence is likely to add costs and delay the proceedings, at least to the extent the Respondent would then need to put on further evidence and the Applicants need to put on further evidence in reply. Having the NTP complied with now is more likely to lead to the efficient preparation and service of evidence – it is more likely it can be done all at once. If the pleadings do need to be amended, all the more reason in this case to have those finalised earlier rather than later.
While I acknowledge the Applicants made a submission that the likely costs of compliance with the NTP were not proportionate to the size of the dispute, the submission rose no higher than a bare assertion to that effect. There was no submission that compliance with the NTP would be unduly difficult.
Ultimately, my view is that not setting aside the NTP is more likely to promote the efficient progression of these proceedings, something which is sorely needed given its progress has stalled.
I note also that what I have said at [93] also provides, to the extent it was relevant, a further basis in the context of these proceedings to conclude, that “exceptional circumstances” for the purposes of the Practice Note have been made out in this case (applying what was said by Black J in Mempoll at [21], and by Kunc J in Simson v Wotif.com Holdings Limited [2013] NSWSC 1809 at [25]).

United Crib Blocks Construction Pty Ltd v Asmaro

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction and Background

Substantive Proceedings

Online Court Orders and Commentary

Correspondence following service of Notice to Produce

Hearing

Facts and Evidence

Legal principles

Setting aside a notice to produce – Generally

Setting aside a notice to produce – Practice Note SC Eq 11

The Practice Note

Exceptional circumstances necessitating disclose

Status of the Practice Note

Setting aside a notice to produce – Flexibility of the Court’s powers to regulate

Issues

Issue 1: Does the Practice Note have the status of a statutory rule?

The parties’ submissions

Consideration

Issue 2: Should the NTP be set aside as an attempt to subvert the Practice Note?

The parties’ submissions

Consideration

Issue 3: Will it facilitate the just, quick and cheap resolution of the real issues in the proceedings to dismiss the orders sought by the Applicants on the Motion, and require the Applicants to produce the documents sought?

The parties’ submissions

Consideration

Conclusion

Costs

ORDERS

Parties

Legislation Cited (6)

Cases Cited (9)

Cited By (1)