Supreme Court New South Wales

• Medium Neutral Citation: Stealth Enterprises Australia Pty Limited trading as The Gentlemen's Club v Calliden Insurance Limited [2013] NSWSC 1757
• Hearing dates: 8 November 2013
• Decision date: 28 November 2013
• Jurisdiction: Common Law
• Before: Barr AJ

Decision

The defendant was granted leave to administer interrogatories. The plaintiff was ordered to provide written answers to the interrogatories within 21 days of service. The plaintiff was ordered to pay to the defendant half its costs of the motion.

• Catchwords: PRACTICE AND PROCEDURE - business insurance - brothel - motorcycle club - membership - duty to disclose material facts to insurer - non-disclosure of material facts - refusal to honour insurance policy - interrogatories - request for disclosure of information about association with motorcycle club - interrogatories opposed - scope of relevance - consideration of necessity and purpose of interrogatories - costs - orders made
• Legislation Cited: Uniform Civil Procedure Rules 2005; Legal Profession Act 2004
• Cases Cited: Seidler v John Fairfax & Sons Limited [1983] 2 NSWLR 390; Gerard Cassegrain & Co Pty Limited; Cassegrain v Gerard Cassegrain & Co Pty Limited [2011] NSWSC 241
• Category: Interlocutory applications
• Parties: Stealth Enterprises Australia Pty Limited trading as The Gentlemen's Club (plaintiff); Calliden Insurance Limited (defendant)
• Representation: Counsel: S.J. Maybury (plaintiff); M.J. Heath (defendant); Solicitors: MCK Lawyers (Plaintiff); Turks Legal (Defendant)
• File Number(s): 2012/324562
• Publication restriction: None

Judgment

1 The plaintiff owns and operates a brothel. The defendant, an insurer, issued a policy of insurance to the plaintiff. The policy commenced on 3 September 2010 and was renewed on 3 September 2011. That policy covered, inter alia, loss to the building and contents of the brothel by fire. Business interruption by such a contingency was also covered. On 1 December 2012 there was a fire at the premises. The plaintiff has required the defendant to indemnify it. The defendant has declined to do so.

2 By a notice of motion filed on 29 October 2013 the defendant sought orders including these:

(1) Leave be granted to the defendant to file and serve a further amended defence in the form attached to the Affidavit of Paul John Angus sworn on 29 October 2013.

(2) Leave be granted pursuant to UCPR 22.1 for the defendant to administer to the plaintiff interrogatories in the form accompanying this Notice of Motion.

(3) An order that the plaintiff provide verified answers by affidavit to the interrogatories referred to in order 3 within 21 days of the date of this order.

(4) An order that the verified answers to the interrogatories be provided by the director Mr Baris Tukel pursuant to UCPR 21.5(2)(c).

3 Mr Heath, counsel for the defendant, read the affidavit of Paul John Angus sworn on 29 October 2013, to which a draft further amended defence and interrogatories were annexed. Mr Maybury, counsel for the plaintiff, did not object to the Court's granting leave to amend the defence but submitted that the portion of the draft intended to plead fraudulent non-disclosure did not adequately do so. I accepted Mr Maybury's submission and granted leave to amend in the form of the draft save for the portion of it dealing with fraudulent non-disclosure. I granted leave to amend to plead fraudulent non-disclosure in terms which I did not specify.

4 The issues dealt with at length were those raised by paragraphs 2, 3 and 4 of the notice of motion. The interrogatories the defendant desired to administer arise out of innocent non-disclosure already pleaded and fraudulent non-disclosure to be pleaded by amendment.

5 Relevantly, innocent non-disclosure is pleaded thus:

34A Further, and in the alternative, Mr. Baris Tukel is and was at all material times the sole director of the plaintiff and a shareholder of the plaintiff and therefore its guiding mind.

34B Mr. Fidel Tukel at the time the Policy was entered into was the manager of the plaintiff company.

Particulars

Mr. Fidel Tukel signed the declaration to the "Adult Industrv Scheme- Business Proposal Form" to the Policy on or about 26 June 2010 designating his the "Proposer's Title" as "Manager".

34C At the time the Policy was entered into Mr. Baris Tukel was an associate of and was himself a member of the motor cycle club known as the "Comancheros".

Particulars of Association

Mr Baris Tukel was known to be and was from time to time in company of and with members and was himself a member of the motor cycle club known as the "Comancheros" and/or communicated with members of such a group telephone email of other forms of communication

34D At the time the Policy was entered into Mr Fidel Tukel was an associate or member of the motorcycle club known as the "Rebels" and/or alternatively the "Finks" and/or alternatively the "Comancheros" in New South Wales.

Particulars of Association

Mr Baris Tukel was known to be and was from time to time in company of and with members and was himself a member of the motor cycle club known as the 'Comancheros" and/or the "Finks" and or the 'Rebels" and communicated with members of such a groups or any of them by telephone email or other forms of communication

34E The matters pleaded in paragraphs 34A, 34B 34C and 34D were matters known to the plaintiff, being matters that:

i. the plaintiff knew to be matters relevant to the decision of the defendant whether to accept the risk to be insured under the Policy and, if so, on what terms; or

ii. a reasonable person in the circumstances could be expected to know to be matters so relevant;

within the meaning of s21 of the IC Act.

("the further relevant matters")

34F Prior to entering into the contract of insurance for the Policy and/or alternatively prior to renewing the Policy (namely, prior to 3 September 2011), the plaintiff failed to disclose any or all of the further relevant matters ('the second non-disclosure').

34G By reason of the second non-disclosure, the defendant is entitled to reduce any liability in respect of the Claim so as to place the defendant in the position it would have been had the relevant matters been disclosed

Particulars

Section 28(3) of the IC Act

34H The defendant says, that had the plaintiff disclosed any or all of the further relevant matters it would not have agreed to insure the Premises at all and therefore it is entitled to reduce any liability it may have to the plaintiff to nil.

6 Fraudulent non-disclosure will be pleaded by amendment. The factual basis is set out as follows in the draft:

35A Further and in the alternative, prior to first entering into the Policy, and prior to renewing the Policy, namely prior to 3 September 2011 Baris Tukel was member of the Comancheros Motor Cycle Club.

35B Further and in the alternative, prior to first entering into the Policy, and prior to renewing the Policy, namely prior to 3 September 2011 Fidel Tukel was an associate of a member of the Comancheros Motor Cycle Club, namely his brother Baris, or alternatively himself a member of the Comancheros Motor Cycle Club.

7 In addition the defendant pleads breaches of a number of policy conditions. The third such matter is pleaded thus:

42 In breach of Policy term four, the plaintiff has refused and continues to refuse to provide

all reasonable information and assistance required by the defendant ('the third breach')

Particulars

a. Mr. Baris Tukel is and was at all material times the sole director of the plaintiff and a shareholder of the plaintiff.

b. The defendant requested the plaintiff to provide information as to any relationship or association Mr. Baris Tukel has with any motorcycle group ('the information')

43 Mr. Baris Tukel has refused and continues to refuse to provide the information.

8 The affidavit of Mr Angus discloses that on 31 January 2013 he wrote on behalf of the defendant to the solicitor for the plaintiff a letter requiring answers to questions. His requirement relied on a condition of the policy, cited in the letter, that:

If something happens which gives rise or may give rise to a claim under the policy...you must...provide all reasonable information and assistance as we require

9 There were 24 questions, most of which were virtually identical to those posed in the desired interrogatories. They asked whether Baris Tukel were a member, an office holder or an associate of the Comancheros group or any other motorcycle group or groups and, if so, the identity of any such group, and the dates of commencement and cessation of any such membership, office or association. Like questions were asked about Fidel Tukel. Attached to the letter were copies of newspaper articles about allegedly corrupt activities of the Comanchero Motorcycle Club, about Fidel Tukel as an underworld figure with asserted links to the Comanchero and Rebels motorcycle clubs and to a football club and about asserted links between Baris and Fidel Tukel and organised crime figures.

10 Correspondence followed in which the solicitor for the plaintiff invited the defendant to explain how, in the light of the articles, there was a proper basis to seek information about association with any motorcycle club. In his letter the solicitor for the plaintiff asked whether the defendant had disclosed to the plaintiff that association with certain groups or people was relevant to its decision whether to accept the risk and whether the defendant had a policy or guideline alleged to be public knowledge.

11 Correspondence continued, but the questions were never answered.

12 Exhibit A is a copy of a subpoena served by the defendant on the New South Wales Police Force requiring production of all documents relating to Baris Tukel, born 31 July 1986, and Fidel Tukel, born 7 May 1981, showing any membership or association with any motorcycle club or group between 1 March 2010 and 30 March 2012. Also part of the exhibit are copies of documents produced in response to the subpoena. They include:

• An Information Report Summary entitled "Comanchero Members Stopped on Way to Protest" and recording that on 5 June 2010 at 9:30am Baris Tukel among others was spoken to while riding on the M4 Motorway and at 10:00am in Concord Road North Strathfield. Baris Tukel is described as wearing full colours.

• An Information Report Summary recording that at 5:50pm on 31 July 2010 Baris Tukel was stopped on the F3 Freeway at Wahroonga while in convoy with other motorcycles and vehicles. He was described as a full member of the Comancheros OMCG.

• An Information Report Summary recording that on 11 February 2012 at 6:00pm three male riders were stopped near the Comanchero clubhouse at Milperra. All were wearing full Comanchero colours. They included Fidel Tukel and Baris Tukel.

13 There were several other such entries relating to Baris Tukel and Fidel Tukel. Also produced by the Police were four photographs of motorcycle riders, some of whom were dressed in Comanchero club colours.

The Applicable Principles

14 Relevantly, part 22.1 of the Uniform Civil Procedure Rules provides:

(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.

...

(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

15 Any proposed interrogatory must have a relevant association or connection with a matter in issue in the proceedings: Seidler v John Fairfax & Sons Limited [1983] 2NSWLR 390 at 393. Interrogatories should be ordered only to the extent appropriate for the proper determination of the real issues in the proceedings.

16 Dealing with the requirement of necessity, Ward J said this in the matter of Gerard Cassegrain & Co Pty Limited; Cassegrain v Gerard Cassegrain & Co Pty Limited [2011] NSWSC 241:

[20] Pursuant to Part 22.1(4) of the Uniform Civil Procedure Rules, an order for leave to administer interrogatories is not to be made unless the court is satisfied that the order is "necessary" at the time the order is made

[21] The test of necessity is "what is reasonably necessary for the disposing fairly of the cause or matter" (Boyle v Downs at [205] per Cross J) or "necessary in the interests of a fair trial" (Percy v General Motors-Holden Pty Ltd [1975] 1 NSWLR 289 at 292 per Rath J)

[22] Necessary orders for interrogatories are those which are "reasonably required or legally ancillary" to the achievement of a fair trial (they need not be "essential" but are to be "subjected to the touchstone of reasonableness" (Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 per Gaudron, Gummow and Callinan JJ, referring first to Attorney-General v Walker (1849) 3 Ex 242 and then State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447)

[23] Thus the term "necessary" in this context does not mean something that cannot be done without or dispensed with, as made clear in Schutt v Queenan. There, the New South Wales Court of Appeal allowed an appeal in circumstances where interrogatories had been refused at first instance (that refusal having been on the basis as it had not been established that they were "necessary" because the defendant had already given a statement to the police) Mason P said:

In this area, the accepted test of necessity is what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial (Boyle v Downs [1979] 1 NSWLR 192 at 205, Yamazaki v Mustaca [1999] NSWSC 1083). The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her (see Gnebart v Moms [1920] 1 KB 659 at 664) (my emphasis)

The draft interrogatories relate to a matter in question in the proceedings, namely the critical issue of negligence With very minor exceptions, they go beyond the matters covered in the police statement The answers may or may not favour the claimant's case, but (without them) that case has significant evidentiary difficulties The answers may provide bricks with which to construct a case whether or not the claimant calls the first opponent at trial and seeks leave to treat him as an unfavourable witness (cf Evidence Act 1995, s38)

[24] It has historically been accepted that interrogatories may be sought by an interrogating party in order to prove its case (Kennedy v Dodson [1895] 1 Ch 334, Osborne v Sparke (1907) 7 SR (NSW) 460) It is said that the answers which are sought by the interrogating party should be material in the sense that they may enable that party to maintain its case or to destroy the case put before it (Strata Plan 39743 v Lmknarf Management Services, Alan J Crowley v Lmknarf Managements Services [2010] NSWSC 225 per Harrison AsJ at [21] referring to Gnebart v Morris [1920] 1 KB 659 and Schutt v Queenan)

...

[27] Where the interrogatories seek information "within the knowledge of the defendants", it might be expected that the test of necessity will be readily satisfied (as it was, for example, in Keating v South East Sydney lllawarra Area Health Service).

...

[31] In Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758 Cole J said, of the principles applicable regarding interrogatories, (at [762]).

1. The object of interrogatories is to discover the truth It has also the advantage of saving expense When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it" Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 111, Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518.

2. Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial Lyell v Kennedy (1883) 8 App Cas 217 at 234, Hawkes v Schubach [1953] VLR 468 at 471, Coal Cliff Collieries Pty LtdvCE Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 at 709.

[32] In SC Tours Pty Ltd v Singer [1997] NSWSC 541 Young J (as his Honour then was) said:

The basic measuring rod for interrogatories is whether they are necessary and will save time or costs of the trial.

[33] When the court is considering whether a trial is fair for the purpose of necessity of interrogatories, it has been said that it should determine 'what justice to all parties might reasonably be thought to require' (Yamazaki v Mustaca [1999] NSWSC 1083 per Sully J at [14]) That must surely be understood in the context of what have been well recognised to be the twofold legitimate purpose of interrogatories (set out above).

[34] Relevantly, for the purpose of considering some of the objections made the present application, whether the interrogating party can prove the matter in question by some other means has been said not to be a ground for refusing the interrogatory (Lyell v Kennedy (1883) 8 App Cas 217 at 228, James v Davies (1883) 9 VLR (L) 140) In Lyell, in the House of Lords, the Lord Chancellor at 228 said:

It is no sufficient objection that the plaintiff may have, and to some extent (on his own shewing) has, other means of proving the facts inquired after Admissions of facts by the defendant might simplify the proof and materially diminish the expense of trial

The Interrogatories

17 Before considering the individual interrogatories I shall deal with some general submissions made by Mr Maybury, directed to all the interrogatories to which objection was raised. It was not necessary, he submitted, to require the plaintiff to answer the interrogatories. The defendant's case was really based on its own convenience: it was expedient to have the plaintiff answer the question because it would make the defendant's job easier. It was not as though the defendant were asking about, for example, the state of mind of the plaintiff, a question that only the plaintiff could answer. Here the defendant must be taken to have evidence of the several matters it desired to prove by the plaintiff's answers because it had already pleaded them as fact. Section 347 of the Legal Profession Act 2004 forbade the defendant's solicitor's filing the defence, if I may paraphrase subs (2) to fit this case, without certifying that there were reasonable grounds for believing on the basis of provable facts that the defence had reasonable prospects of success. Mr Maybury submitted that the defendant ought to have informed the Court what evidence it had and why it would be difficult or costly to prove the facts it alleged other than by answers to the interrogatories.

18 It seems to me that the solicitor in possession of the material produced by the New South Wales Police Force might properly assert in the defence that Baris Tukel was a member of the Comanchero motor cycle club and that Fidel Tukel was an associate of a member or himself a member of that club. That does not mean, however, that it might not be circuitous and costly to undertake proof by that means. While I accept that it would have been open to the defendant to adduce further evidence to explain why it would be difficult and costly to prove the relevant facts in some other way, I do not think that it was obliged to do so.

19 It is necessary to consider objections raised to particular interrogatories, but subject to such consideration I think that an order that the plaintiff answer interrogatories is likely to save time and costs and is reasonably necessary to dispose fairly of the issues likely to arise at trial.

20 The defendant intends to serve with the interrogatories the four photographs produced by the police on subpoena. The first, marked 'A', shows a man seated on a motor cycle. There are these questions:

1.1 Refer to the photograph attached to these interrogatories and marked "A". Is the person in the foreground of the photograph with his hand raised to his face known as Mr Baris Tukel?

1.2 If the answer to interrogatory 1.1 is "Yes", is the person identified as Baris Tukel the same person who as at 3 September 2010 and 3 September 2011 was the director and shareholder of the Plaintiff7

1.3 If the answer to interrogatory 1.1 is "No", does the plaintiff know who the person is in the foreground of the photograph with his hand raised to his face in the photograph marked "A" to these interrogatories?

1.4 If the answer to interrogatory 1.3 is "Yes", what is the name of the person in the foreground of the photograph with his hand raised to his face in the photograph marked "A" to these interrogatories'?

21 Mr Maybury did not submit that the first two questions were not relevant to any issue in the proceedings. In my opinion they are both relevant. As it intends to frame its case, the defendant will be entitled, if it can, to prove that at a material time Baris Tukel was a member of the Comanchero motor cycle club. The answer to the first two questions is within the knowledge of the plaintiff. I conclude that it is reasonably necessary for the plaintiff to answer them.

22 Mr Maybury submitted that interrogatories 1.3 and 1.4 had no relevant association or connection with any issue likely to arise at the trial. I agree. I disallow them.

23 Interrogatories 2.1, 2.2, 2.3 and 2.4 ask identical questions about the photograph marked 'B'. No different principle applies. I allow interrogatories 2.1 and 2.2 and disallow interrogatories 2.3 and 2.4.

24 The position is the same with four interrogatories concerning the photograph marked 'C'. I allow interrogatories 3.1 and 3.2 and disallow interrogatories 3.3 and 3.4.

25 Interrogatories 4.1, 4.2, 4.3 and 4.4 similarly ask about the photograph marked 'D'. I allow interrogatories 4.1 and 4.2 and disallow interrogatories 4.3 and 4.4.

26 Interrogatories at 5.1 to 5.16 are about Mr Baris Tukel. They are as follows:

5.1 Was Mr. Baris Tukel (the director and a shareholder of the plaintiff) as at 3 September 2010 and 3 September 2011 a member of any motorcycle group (or groups) such as the group known as the "Comancheros"?

5.2 If the answer to interrogatory 5.1 is "Yes", what is or was the identity of the motorcycle group (or groups) of which he was a member?

5.3 If the answer to interrogatory 5.1 is "yes", on what date (or approximate date) did Mr. Baris Tukel's membership of any motorcycle group identified in answer to interrogatory 5.2 commence?

5.4 If the answer to interrogatory 5.1 is "Yes", has Mr. Baris Tukel's membership of any motorcycle group identified in answer to interrogatory 5.2 ceased?

5.5 If the answer to interrogatory 5.4 is "Yes", on what date (or approximate date) did Mr. Baris Tukel's membership of any motorcycle group identified in answer to interrogatory 5.2 cease?

5.6 If in answer to interrogatory 5.2, a motorcycle group or groups is or are identified, was Mr. Baris Tukel at any time an office holder of any motorcycle group (or groups) identified?

5.7 If the answer to interrogatory 5.6 is "Yes", what office, if any, did Mr. Baris Tukel hold in such a group (or groups) identified in answer to interrogatory 5.2?

5.8 If the answer to interrogatory 5.6 is "Yes", what date (or approximate date) did the office held by Mr. Baris Tukel with any motorcycle group identified in answer to interrogatory 5.2 commence?

5.9 If the answer to interrogatory 5.6 is "Yes", has Mr. Baris Tukel ceased to hold any office with any motorcycle group identified in answer to interrogatory 5.2?

5.10 If the answer to interrogatory 5.9 is "No" on what date or approximate date did Mr. Baris Tukel cease to hold the office identified in answer to interrogatory 5.7?

5.11 If the answer to interrogatory 5.1 is "No", has Mr. Baris Tukel had any relationship or association with any motorcycle group?

By relationship or association the defendant means:

(a) to be in company with, or

(b) to communicate with by any means (including by post, facsimile, telephone, email or any other form of electronic communication)

5.12 If the answer to interrogatory 5.11 is "Yes", what is or was the nature of any relationship or association that Mr. Baris Tukel had with any motorcycle group identified in answer to interrogatory 5.11?

5.13 If the answer to interrogatory 5.11 is "yes", what is or was the identity of any motorcycle group (or groups) identified in answer to interrogatory 5.12 that Mr. Baris Tukel had a relationship or association with?

5.14 If the answer to interrogatory 5.11 is "Yes", what date (or approximate date) did Mr. Baris Tukel's relationship or association with any motorcycle group identified in answer to interrogatory 5.13 commence?

5.15 If the answer to interrogatory 5.11 is "Yes", has Mr Baris Tukel's relationship or association with any motorcycle group identified in answer to interrogatory 5.11 ceased?

5.16 If the answer to interrogatory 5.13 is "Yes", on what date or approximate date did Mr. Baris Tukel's relationship or association with any motorcycle group identified in answer to interrogatory 5.2 cease?

27 Mr Maybury submitted that the term "motorcycle group" as used throughout these interrogatories was not well defined. I think that its meaning was understandable when qualified by the words "such as the group known as the Comancheros". No other particular objection was raised to interrogatories 5.1 and 5.2. I allow them.

28 Mr Maybury submitted that the period of membership the subject of interrogatories 5.3, 5.4 and 5.5 was irrelevant to any issue likely to arise at trial. I do not accept that submission. It is correct to say that a proposer for insurance comes under a duty to disclose material facts at the time when the insurer is considering whether to accept a new proposal or the renewal of an existing policy. That is why the dates are specified in interrogatory 5.1, the assertion being that the fact of membership at those times was something the plaintiff had to disclose. But that does not mean that membership at any other time will be irrelevant. The defendant's case at trial will be that the plaintiff knew that Baris Tukel was a member as pleaded and that that gave rise to such a moral hazard that, if it had known it, the defendant would have declined the plaintiff's proposal for renewal. The length of membership, it seems to me, will be relevant to the assessment of the moral hazard. The defendant might be expected to argue that the longer the membership the greater the likely knowledge of the member about the club and its activities. I allow interrogatories 5.3, 5.4 and 5.5.

29 Interrogatories 5.6 to 5.10 inclusive concern themselves with the question whether Baris Tukel held office in any relevant motorcycle club at the times limited in interrogatory 5.1. Mr Maybury submitted that the question whether Baris Tukel held office was irrelevant. I disagree. It seems to me that the more senior the position a person holds in an organisation the more likely that person is to know about the affairs of the organisation, particularly affairs such as the corrupt conduct implied in the documents produced by the police, knowledge of which may be confined to persons holding higher rank. I allow interrogatories 5.6, 5.7, 5.8, 5.9 and 5.10.

30 Interrogatory 5.11 asks whether Mr Baris Tukel has had any relationship or association with any motorcycle group. Unlike the preceding interrogatories, it is not limited as to time and its relevance is therefore not apparent. I disallow the interrogatory.

31 Interrogatories 5.12 to 5.16 inclusive depend on the answer to interrogatory 5.11. They must fall with it. I disallow them.

32 Interrogatories 6.1 to 6.16 ask about Mr Fidel Tukel. Those numbered 6.1 to 6.10 inclusive ask questions identical or equivalent to questions 5.1 to 5.10. The same arguments were put and my view about them is as I have stated. Accordingly, I allow them all.

33 I disallow interrogatory 6.11 for the reasons I stated when dealing with interrogatory 5.11. Interrogatories 6.12 to 6.16 depend on interrogatory 6.11. I disallow them.

34 No objection was raised to interrogatories 6.17, 6.18, 6.19, 6.20 or 6.21. Accordingly, I allow them.

Costs

35 The only issue raised on amendment was the manner in which the defendant proposed to plead fraudulent non-disclosure. If the defendant had pleaded it properly the matter could have been dealt with without a hearing. On the questions raised by the interrogatories the defendant has been largely but not altogether successful.

36 In the circumstances I think that the defendant should have half its costs of the motion.

37 I make the following orders -

(1) Grant leave to the defendant to administer interrogatories in accordance with draft interrogatories 1.1, 1.2, 2.1, 2.2, 3.1, 3.2, 4.1, 4.2, 5.1 to 5.10 inclusive, 6.1 to 6.10 inclusive and 6.17 to 6.21 inclusive in annexure B to the affidavit of Paul John Angus sworn on 29 October 2013.

(2) Order that the plaintiff provide within 21 days of service upon it of the interrogatories written answers verified by its director Baris Tukel.

(3) Order that the plaintiff pay to the defendant half its costs of the motion.

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Decision last updated: 28 November 2013