NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR SILVA FORTUNEET AL. V/S NUVEI GLOBAL MERCHANT SERVICES CASE

Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 2:

1. The plaintiffs, two corporations, seek preliminary discovery of nineteen categories of documents from Nuvei Global Merchant Services Pty Ltd (formerly Till Global Payments Pty Ltd) pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1).

2. he plaintiffs say they reasonably require those documents in order to decide whether to bring a claim for relief against Till Global and its former director, Mr Haddad, for misleading or deceptive conduct pursuant to s 18 Australian Consumer Law (ACL), set out in Sch 2 of the Competition and Consumer Act 2010 (Cth) or s 12DA Australian Securities and Investments Commission Act 2001 (Cth).

Legal principles

3. The relevant principles are well known. Reference is often made to Simpson AJA's five limb test in O'Connor v O'Connor [2018] NSWCA 214 (O'Connor) at [21] (with whom McColl and Macfarlan JJA agreed). Her Honour noted that for a Court to exercise the discretion to grant an order for preliminary discovery under UCPR r 5.3(1), it must be satisfied of the following:

1) the applicant may be entitled to make a claim for relief from the court against the prospective defendant;

2) the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;

3) having made reasonable enquiries, the applicant is unable to obtain sufficient information to make the decision whether or not to commence proceedings;

4) 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; and

5) inspection of such a document would assist the applicant to make the decision whether or not to commence proceedings.

See also the recent summary of principles in B & J Hudghton Investments Pty Ltd v Lakeba Group Ltd [2022] NSWSC 830 at [19] (Rees J).

Scope of dispute

4. I accept the parties' agreement that the O'Connor limbs 1, 2 and 4 are made out here based on the evidence. What remains is a dispute between the parties concerning whether the third and fifth O'Connor limbs have been satisfied.

5. The defendant asserted that the plaintiffs had failed to objectively establish that they have insufficient information to decide whether to sue: Morton v Nylex [2007] NSWSC 562 at [33] (White J); B & J Hudghton at [21].

6. Morton makes clear that the question the Court is tasked with answering is whether the applicant "has insufficient information to be able to decide whether to institute proceedings; not merely to establish a cause of action": at [33]. As such, preliminary discovery may be ordered to allow a plaintiff to access documents relevant to "available defences, or the extent of apprehended breaches, or the likely quantum of damages, as well as of documents which may establish whether there is a cause of action": at [33].

7. The defendant also submitted that the plaintiffs had not demonstrated that they were "lacking something reasonably necessary to make a decision whether to institute proceedings": Morton at [33] (emphasis added). An applicant must adduce evidence demonstrating the particular respects in which the information they currently have is deficient: Morton at [33]; B & J Hudghton at [23]. Mere assertions by plaintiffs or their legal advisers that the information is deficient is not sufficient to meet this limb of the test: Western Bulk Carriers (Australia) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520 at [17] (Beaumont J); B & J Hudghton at [23].

8. In relation to the fifth limb, the defendant submitted that there was insufficient evidence to demonstrate that the documents sought would assist the plaintiffs in deciding whether to bring proceedings. It submitted that the plaintiffs were attempting to build up a case they had already decided to or could decide to bring: Murray v Wheeler [2013] NSWSC 137 at [46]-[48] (Bergin CJ in Eq).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c9be8676e1f6329ebda6e)

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