LEWIS v MAYFIELD & ORS (No 2) [2026] SASC 86

Applicant: SUANNE CHRISTINA LEWIS Counsel: MR M O’CONNOR - Solicitor: DW FOX TUCKER First and Second Respondents: DIANA MAYFIELD (IN HER CAPACITY AS EXECUTOR AND TRUSTEE OF THE ESTATE OF BRENTON JOHN MAYFIELD) AND ARISTOS NOMINEES PTY LTD (ACN 007 760 563) (AS TRUSTEE FOR THE BRENTON JOHN MAYFIELD FAMILY TRUST) Counsel: MR M HOFFMANN KC - Solicitor: ILES SELLEY LAWYERS Hearing Date/s: 21/04/2026 File No/s: CIV-24-004361 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LEWIS v MAYFIELD & ORS (No 2) [2026] SASC 86 Reasons for Decision of the Honourable Justice McIntyre 5 June 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER FOR FURTHER AND BETTER DISCOVERY This is an interlocutory application filed by the applicant seeking further and better discovery. The proceedings concern the FR & JW Mayfield Family Trust in respect of whom late brothers, Brenton Mayfield (‘Brent’) and Grant Mayfield (‘Grant’), were trustees. The applicant, Grant’s eldest daughter, contends that Brent breached his duties as trustee of the Family Trust. It is further alleged that the second respondent, Aristos Nominees Pty Ltd, was a knowing recipient of trust property, transferred by Brent in breach of the trust. The respondents filed a List of Documents on 29 October 2025. A revised List of Documents was subsequently filed on 4 December 2025. The applicant now seeks further and better discovery of various communications, documents and financial records in relation to the Family Trust, and documents and financial records relating to the second respondent. The respondents contend that the application impermissibly seeks broad, speculative discovery untethered to the pleaded issues. It is said that the applicant has failed to demonstrate the direct relevance of the material, or the existence of the further documents sought to justify an order for further discovery. The applicant contends that the documents sought directly related to the pleaded issues and that the respondent’s discovery is incomplete, deficient and non-compliant with the Uniform Civil Rules 2020 (SA). Further, it is said that further and better discovery is required to enable proper and fair determination of the proceeding. -- 1 of 13 -- Held: Application dismissed. Uniform Civil Rules 2020 (SA) rr 73.3, 73.7; Trustee Act 1936 (SA) s 84B(1); Trustee Regulations 1980 (SA) reg 5(13), (18), referred to. Bellara Aged Care Village Pty Ltd v Serafini [2024] SASC 101; Ryan & Anor v Light Regional Council & Anor; Pallett & Anor v Light Regional Council & Anor [2020] SAERDC 45, discussed. Trans-Tasman Energy Group Pty Ltd v State of South Australia [2025] SASCA 147; Holmes v Jefferis [2022] SASCA 63, considered. -- 2 of 13 -- LEWIS v MAYFIELD & ORS (No 2) [2026] SASC 86 Civil: Application McINTYRE J. 1 The applicant filed an interlocutory application on 3 February 20261 seeking orders that: • the first respondent provide further and better discovery of the documents contained in category one, and category three to nine as set out in schedule 1 of the Affidavit of Joseph Philip De Ruvo dated 3 February 20262 (‘the De Ruvo Affidavit’); and • that the second respondent provide further and better discovery of the documents contained in category two as set out in schedule 1 of the De Ruvo Affidavit. Background 2 These proceedings concern a family trust known as the FR & JW Mayfield Family Trust (‘the Fred Trust’), in respect of which the late Brenton Mayfield (‘Brent’) and his brother, the late Grant Mayfield (‘Grant’), were trustees between 1 March 1989 and 7 May 2018. 3 Grant died on 3 August 2023. The applicant is Grant Mayfield’s eldest daughter. Brent died on 21 January 2022. The first respondent is Brent’s widow and the executor and trustee of Brent’s Estate. The second respondent is Aristos Nominees Pty Ltd as trustee of the Brenton John Mayfield Family Trust. 4 The claim includes allegations that Brent breached his duties as trustee of the Fred Trust; that Brent committed fraudulent breaches of his duties as a trustee; and that the second respondent was a knowing recipient of Trust property transferred by Brent in breach of trust. The respondents deny all allegations and say that the impugned transactions were ordinary and authorised trust arrangements jointly undertaken with Grant. 5 By Order of Auxiliary Associate Justice Costello dated 25 July 2025, the parties were required to make mutual discovery by filing and serving a List of Documents by 30 September 2025.3 On 17 October 2025, Auxiliary Associate Justice Costello extended the time the time for the parties to make mutual discovery to 27 October 2025. 1 FDN 50. 2 FDN 51. 3 FDN 31. -- 3 of 13 -- [2026] SASC 86 McIntyre J 2 6 The steps taken by the respondents in relation to the issue of discovery are set out in the affidavit of Nathan Peter Day made on 10 March 20264 (‘the Day Affidavit’). On 29 October 2025, the respondents filed and served their List of Documents (‘List of Documents’). Copies of the discovered documents were supplied to the applicant on 30 October 2025 (‘First Discovery Bundle’). On 4 December 2025, the respondents filed and served revision 1 of their List of Documents (‘Supplementary List of Documents’). Copies of the discovered documents were supplied to the applicant on that date (‘Second Discovery Bundle’). 7 The applicant requested the respondents to make further and better discovery of documents described in categories one and three to nine in schedule 1 of the De Ruvo Affidavit. These are documents that the applicant believes are in the possession, custody or control of the respondents that have not been discovered (or fully discovered) in the Supplementary List of Documents and are said to be relevant to revision 1 of the Claim and Statement of Claim dated 15 October 20245 and the Statement of Cross Claim dated 28 July 2025.6 8 The applicant has also requested the second respondent to make further and better discovery of documents described in category two in schedule 1 to the De Ruvo Affidavit. These are documents that the applicant believes are in the possession, custody or control of the second respondent as these are financial records that the second respondent ought to have retained. It is further contended that these documents are directly relevant to the revision 1 of the Claim, Statement of Claim and the Statement of Cross Claim, and that they are documents that are required for the applicant to quantify her claims against the second respondent. The UCR and relevant principles 9 Rule 73.7 of the Uniform Civil Rules 2020 (SA) (‘UCR’) relevantly provides as follows: (1) This rule applies to require general discovery unless the Court otherwise orders or the parties unanimously otherwise agree. (2) Each applicant and respondent in a proceeding must make discovery of discoverable documents that are or were in their possession, custody or power in accordance with this Division. … (5) A document is a discoverable document for the purposes of this rule if it is directly relevant to an issue raised in the proceeding and, if pleadings have been filed, the issues for this purpose are defined by the pleadings. (6) Without limiting the generality of the definition of discoverable document in subrule (5), a document is directly relevant in the context of discovery made by a 4 FDN 59 at [7]–[19]. 5 FDN 3. 6 FDN 30. -- 4 of 13 -- [2026] SASC 86 McIntyre J 3 party to the proceeding if it is intended to be relied on at trial by that party or it supports or adversely affects a party’s case. (Emphasis in original) 10 UCR 73.3 relevantly provides as follows: (1) This rule applies unless the Court otherwise orders or the parties unanimously otherwise agree. (2) A list of documents must, subject to subrules (3), (4) and (5)— (a) list each discoverable document in the person’s possession, custody or power in respect of which no claim of privilege is made; (b) list each discoverable document in the person’s possession, custody or power in respect of which a claim of privilege is made, identifying the nature of the privilege and ground on which it is claimed and describing the document in sufficient detail that it can be identified and the fact that it is privileged is apparent from its description; and (c) list each discoverable document that was in the person’s possession, custody or power, describing it in sufficient detail that it can be identified and identifying when it left the person’s possession custody or power, where it went and where it is now believed to be. … (6) Unless the Court otherwise orders or the parties unanimously otherwise agree, a list of documents must be in the appropriate prescribed form for a separate list of documents. … (10) A person filing a list of documents must, by the person’s solicitor if represented or by the person if not represented, certify the list of documents in accordance with the prescribed form. (11) Unless the Court otherwise orders or the parties unanimously otherwise agree, a list of documents must be prepared in accordance with the physical protocol. 11 I considered the issue of direct relevance for the purposes of the UCR in Bellara Aged Care Village Pty Ltd v Serafini7 in which I agreed with the summary of applicable principles of Burnett DCJ in Ryan & Anor v Light Regional Council & Anor; Pallett & Anor v Light Regional Council & Anor8 as follows:9 The question of whether documents are directly relevant has been considered by the Full Court of the Supreme Court in Channel 7 Adelaide Pty Ltd v Lane and Hurley in which the court summarised the relevant principles (referring to earlier cases such as Southern 7 [2024] SASC 101. 8 [2020] SAERDC 45. 9 Ibid at [5]; See also Trans-Tasman Energy Group Pty Ltd v State of South Australia [2025] SASCA 147. -- 5 of 13 -- [2026] SASC 86 McIntyre J 4 Equities Corporation Ltd (in liq) v Arthur Anderson & Co (No 5) and Rehn v Australian Football League & Ors and Harris Scarfe Ltd v Ernst & Young (No 4) as follows: a. The test of direct relevance significantly narrows the obligation to provide disclosure from the previous requirements to provide discovery ‘relating to any matters in question in this action’; b. The requirement of direct relevance must be applied firmly and given the relatively narrow meaning; c. The issue of direct relevance is to be determined by reference to the pleadings and the issues which arise thereon and assumes that a party can determine that party’s obligation to make discovery by reference to the pleadings; d. A document will be directly relevant if it tends to prove or disprove a matter which is in issue; e. The rule does not mean that, if the document is not itself proof of a fact in issue but is merely a piece of circumstantial evidence tending, along with other evidence, to prove the fact in issue, it is not discoverable; A document will not be directly relevant if it merely tends to prove or disprove something that may be relevant to a matter in issue or there is merely a chance that the document will prove or disprove a matter in issue. (Citations omitted) 12 The applicant contends that the proceedings concern Trust property and Trust record keeping breaches. It is further contended that a trustee such as the second respondent is obliged to keep records of the nature sought by the applicant for the life of the Trust pursuant to section 84B(1) of the Trustee Act 1936 (SA) and regulations 5(13) and (18) of the Trustee Regulations 1980 (SA). Accordingly, it is contended that the documents ought to be available for discovery. The documents sought 13 The documents sought by the applicant are specified in schedule 1 to the De Ruvo Affidavit in nine categories. The categories fall into two broad groups. categories one and three to nine dealing with the Fred Trust and category two dealing with the second respondent. 14 The respondents’ position, in summary, is that the application impermissibly seeks broad, speculative discovery untethered to the pleaded issues, and that the applicant has failed to demonstrate either direct relevance or the existence of further documents justifying an order for further discovery. 15 The applicant contends, on the other hand, that there are documents in the possession, custody or control of the respondents that are directly relevant and that have not been discovered (or fully discovered). The applicant’s overarching position is that each category comprises documents directly relevant to pleaded issues, including breach of trust, knowing receipt, tracing, and quantification of loss or profit. It is said that the respondents’ discovery is incomplete, deficient, -- 6 of 13 -- [2026] SASC 86 McIntyre J 5 and non-compliant with the rules and that further and better discovery is required to enable proper and fair determination of the proceeding. 16 The question is whether this has been established in relation to the various categories. Preliminary point: compliance with the UCR 17 The respondents, in their opposition to this application, point to the difficulties occasioned by the fact that the transactions complained of took place many years ago in circumstances where critical witnesses are now deceased. This includes not only Brent and Grant but also the accountant who had carriage of accounting matters on behalf of the Fred Trust, Mr Simpson. Prior to these proceedings, the first respondent had no direct involvement in the events the subject of these proceedings.10 The practical impediments caused by these factors are outlined in the affidavit of Nathan Peter Day dated 10 March 2026 (‘Day Affidavit’). The respondents contend that there is no impropriety in their approach to discovery and that they have acted with candour as to these issues throughout. 18 I accept that these are real and practical difficulties. There is further no material before me that suggests that the respondents have been anything but candid about the issues. Notwithstanding this, if the material is directly relevant then the documents ought to be discovered or, alternatively, the respondents ought to complete schedule 3 of the standard form List of Documents to the best of their ability. As will be apparent, in a number of categories, the affidavit evidence makes it plain that the respondents are aware of documents that are relevant but which they have not, despite what are said to be reasonable efforts, been able to obtain. If these documents are able to be identified, this should be incorporated into their List of Documents. To the extent that it has not, the respondents are in breach of the UCR and should rectify that. Category one 19 The applicant seeks accounting and tax records for the Fred Trust from 1989 to 2018, including but not limited to, financial statements; covering letters to financial statements; cash books; general ledgers; general journal adjustment books; trial balances; bank statements; bank reconciliations; tax returns; Fred Trust and GR Mayfield Family Trust income distribution minutes; and supporting documents. 20 The applicant contends that these documents are directly relevant to the pleaded issues concerning the administration of the Fred Trust. In particular, it is said that they are necessary to determine whether Brent exercised control over the Fred Trust and excluded Grant; whether trust income was withheld; the operation of the Grant loan scheme11 and the quantum of any loss. The applicant says there is a significant unexplained gap in the respondents’ discovery during what is said 10 FDN 59, Affidavit of Nathan Peter Day sworn on 10 March 2026 at [4] (‘Day Affidavit’). 11 FDN 3, Claim (Revision 1) at [55]. -- 7 of 13 -- [2026] SASC 86 McIntyre J 6 to be the critical period from 1989–1993. The respondent’s existing discovery is deficient, with key source documents and accounting records missing or incomplete, preventing proper tracing of transactions and reconstruction of Trust finances. 21 The respondents say that they have made extensive discovery of accounting and tax records for the Fred Trust and have, where such documents exist, discovered the financial statements and source documents of the Fred Trust from FY1989 to FY2017. They depose, following reasonable enquiry, that no further directly relevant documents are in their possession, custody or power. Gaps in the documentary record are explained by historical non-retention and the fact that custodians of the documents are either dead or otherwise unavailable. In particular, some of the records that are not discovered were the subject of correspondence between, inter alia, the applicant and the accounting firm Clarke Brownrigg in 2018 in which it was advised that the firm had not retained pre-1994 records.12 22 The request for discovery in this category is very broad and covers an extended period from 1989 to 2018. The respondents have made extensive discovery of the Fred Trust’s accounting and tax records and have deposed to the efforts made to obtain such records in the Day Affidavit. The Day Affidavit deposes that the first respondent is not aware of any other directly relevant accounting and tax records that have not been disclosed. I have reservations as to whether all of the broad range of documents sought could be said to be directly relevant to the issues in dispute arising on the pleadings, but I do not resolve that issue. The fact is that the respondents say that they have discovered all that they are able to discover and that they have made all reasonable efforts to discover documents in this category. I will not go behind that assertion but, as outlined above, the respondents ought to amend their List of Documents to reflect that position insofar as it relates to documents that they accept are directly relevant and that they are unable, after reasonable enquiry, to locate. Category two 23 The applicant seeks documents relating to Aristos Nominees Pty Ltd from 1989 to 2018, including but not limited to, financial statements; covering letters to financial statements; cash books; general ledgers; general journal adjustment books; trial balances; bank statements; bank reconciliations; tax returns; share certificates; share transfer forms; and meeting minutes. 24 The applicant’s position is that category two documents are indispensable to determining whether, and to what extent, the second respondent received and profited from trust funds. They are said therefore to be directly relevant to the issues raised on the pleadings and properly the subject of further and better discovery. In particular, the applicant says that category two documents are discoverable because her case against the second respondent includes claims for 12 FDN 65, see exhibit MS-3 to the Affidavit of Matthew Selley made on 2 April 2026. -- 8 of 13 -- [2026] SASC 86 McIntyre J 7 an accounting of profits or, alternatively, equitable compensation arising from alleged breaches of trust by Brent and knowing receipt by the second respondent. It is alleged that the second respondent knowingly received trust funds obtained in breach of trust and retained or used those funds for its own benefit, thereby deriving profits for which it is liable to account. The documents sought are said to be directly relevant because they evidence the receipt of trust funds; reveal the movement and application of those funds; and permit identification and quantification of profits derived from their use.13 25 The applicant contends that an account of profits requires a reconstruction of the second respondent’s financial position over time, which can only be performed through full production of its financial and trust records, typically by a forensic accountant. The documents are sought over an extended period corresponding with the alleged breaches and the period during which the second respondent is said to have received and used trust funds. The applicant accepts that she must ultimately make an election between equitable compensation and an account of profits. However, she says that she cannot make such an election before being fully informed as to the second respondent’s profits from the trust funds.14 26 The second respondent, on the other hand, says that this category, framed as all documents “relating to” the second respondent over a lengthy period, is impermissibly broad and is not confined to documents of direct relevance. The respondents have produced specific financial statements where relevant (including unredacted versions),15 but otherwise object on the basis that the category extends beyond the issues raised on the pleadings. The second respondent submits that the applicant’s allegations founding claims one, two, five, six and seven against the respondents are largely unparticularised and “confront fundamental difficulties not least because Grant during his lifetime signed financial statements of the Trust certifying them as true and correct”.16 To the extent that the applicant places reliance on an accounting of profits, no election has been made and the second respondent contends that discovery on the issue of tracing profits is premature.17 27 There is no dispute that an election between remedies need not be made until the trial has concluded. The question is whether the applicant is entitled to discovery of the documents sought prior to that election. Whilst I accept that the circumstances in Holmes v Jefferis18 were somewhat different in that the Court was there dealing with an appeal against summary judgment and orders that an account be taken before trial, the observations of the Court in granting the appeal are apposite to this matter. President Livesey and Bleby JA reviewed the authorities before concluding that it was inappropriate in the circumstances of that matter to order an account where there remained a dispute as to whether there was liability 13 FDN 63 at [7]–[9]. 14 FDN 63 at [14]–[16]. 15 FDN 66 at [7]. 16 FDN 66 at [8.2]. 17 FDN 66 at [8.1]. 18 [2022] SASCA 63. -- 9 of 13 -- [2026] SASC 86 McIntyre J 8 to account and whether any amount was or would ever be owed.19 The orthodox position arising from the authorities cited in that judgement appears to be that, accounts are ancillary remedies directed after the primary issues of liability have been determined and that an account is not a mechanism to investigate liability but rather to work out the consequences once liability has been established. 28 The documents sought are very broadly described and very extensive. Moreover, the application covers a period of time from 1989 to 2018 some 37 to eight years ago. This is a potentially oppressive and certainly costly request in circumstances where the direct relevance of the documents to the issues in dispute is far from clear on the material before me. Arguably, documents such as those that evidence receipt of funds from the Fred Trust are directly relevant to issues on liability but the application and supporting affidavit material is far from establishing this. If the applicant ultimately establishes an entitlement to relief in respect of these claims, then it may be appropriate to order further and better discovery of such documents, or a subset of them, so that the applicant can make an informed decision as to the election. It is my view that this would be premature and oppressive at this stage of proceedings. Accordingly, I decline to order further and better discovery of this category of documents. Category three 29 The documents sought are communications between advisors of the Fred Trust (including Clarke & Brownrigg, Richards & Evans Commercial Lawyers and Baker O’Loughlin) and Brent Mayfield relating to the Fred Trust. The applicant contends that communications between Brent and professional advisors are relevant to issues concerning decision-making and control of the trust, whether Grant was excluded and whether the alleged schemes were concealed or implemented on advice. She further contends that discovery to date is inadequate, consisting largely of limited or “covering” correspondence rather than substantive communications. 30 The respondents contend that they have identified and produced communications with legal and accounting advisers that are directly relevant to the pleaded issues. They reject the proposition that all adviser communications are discoverable and maintain that their obligation is confined to documents of direct relevance. They depose that no further communications of that nature are known to exist following reasonable enquiry20 and that the applicant has not demonstrated otherwise. 31 Absent any evidence to the contrary, I do not accept that every communication between the advisors of the Fred Trust and Brent during an unspecified but apparently lengthy period are directly relevant to the issues in this matter. No such evidence has been provided save for an assertion contained in the 19 Ibid at [126]–[127]. 20 Day Affidavit at [28]–[31]. -- 10 of 13 -- [2026] SASC 86 McIntyre J 9 De Ruvo Affidavit21 and submissions that the documents discovered are not generally substantive. I decline to order further and better discovery but again indicate that the respondents ought to file a further List of Documents to reflect that position insofar as it may relate to documents that they accept are directly relevant and that they are unable, after reasonable enquiry, to locate. Category four 32 The applicant seeks communications between Brent Mayfield, Mark Utting and Hilton Smith relating to loans from the Fred Trust as pleaded by the applicant or the B.J. Mayfield Family Trust as pleaded by the respondents. There is an issue in the context of the pleadings as to whether certain loans were made by the Fred Trust as alleged in paragraph 144 of the applicant’s Statement of Claim (revision 1)22 or whether loans were instead made by the second respondent as set out in paragraph 144 of the Defence.23 Specifically, the applicant alleges24 that in or around 2011, loans were made from the Fred Trust to Mr Mark Utting and Mr Hilton Smith. This allegation is denied by the respondents who plead25 that to the extent that loans were made to Mr Utting and Mr Smith, they were loans made by the B.J. Mayfield Family Trust. 33 The applicant submits that the documents sought are directly relevant to her allegations concerning differential treatment of beneficiaries. Specifically, her allegation that loans were made to Brent’s interests but refused to Grant’s side of the family. She further contends that the respondents’ denial of those allegations does not render the documents irrelevant. She contends that no substantive discovery has been provided 34 The respondents say that it is not apparent how communications over an unspecified period of time are relevant given the applicant’s allegations relate to loans made in or around 2011. The respondents say that searches have been undertaken for all documents directly relevant to the 2011 loans as set out in the Day Affidavit26 and that no directly relevant documents have been located. Specifically, the first respondent does not have access to her late husband’s former work and email account. While she is no longer a director of BJM Engineering Services Pty Ltd she has made enquiries of the current director and has discovered that it is not possible to retrieve emails exchanged on her late husband’s email account. The first respondent has instructed her solicitors that she was not aware of any directly relevant communications between her late husband, Mr Mark Utting, and Mr Hilton Smith relating to loans from the Trust or the Brenton Mayfield Family Trust. 21 At [22.3]. 22 FDN 3, Claim (Revision 1). 23 FDN 6. 24 FDN 3, Claim (Revision 1) at [8]. 25 FDN 6 at [144]. 26 At [32]–[33]. -- 11 of 13 -- [2026] SASC 86 McIntyre J 10 35 The manner in which the applicant says all of the documents in this category are directly relevant to the proceedings is not clear. It is a broad request with no time period specified other than in reference to the pleading identified as to the loans made in 2011. In any event, the Day Affidavit deposes to the searches that have been undertaken in relation to this category of documents27 and says that there are no documents to be disclosed. I decline to order further and better discovery but again indicate that the respondents ought to file a further List of Documents insofar as it may be necessary to include documents that they accept are directly relevant, but which are not able to be located. Category five 36 This category relates to a letter from Baker O’Loughlin to the Lands Title Office dated 16 November 1989. The respondents say that whilst the document is not directly relevant, the applicant has discovered this document in her List of Documents. The applicant submits that the document is relevant, is a document that the respondents either have or ought to have had. It is said that it ought to be formally discovered and available for use in the proceedings. The direct relevance of this document is not clear to me on the basis of the material put forward by the applicant. I decline to order the respondents to discover this document. Categories six & seven 37 Documents relating to the sale of FRM Electrical to William Price including, but not limited to, sale contract documents; the letter from Liz and Sally Mayfield to Julia Bell and Robina Triggs advising that the sale proceeds went to the Fred Trust; and documents relating to the sale of Fred Mayfield’s shares in Quarry Industries to Boral Limited including, but not limited to, sale contract documents. 38 The applicant contends that documents relating to the sale of FRM Electrical and the sale of Quarry Industries shares are trust records relevant to tracing the disposition of trust assets and that such records are required to examine whether trust property was properly dealt with. As trust records, it is said that they ought to exist and be produced. 39 The respondents say that no issue is joined on the pleadings in relation to these transactions and that accordingly these documents are not directly relevant. 40 On the basis of the material before me, the applicant has not demonstrated how these categories bear upon any fact in issue. In those circumstances, the documents sought do not appear directly relevant and accordingly I make no order in respect of them. 27 At [32]–[33]. -- 12 of 13 -- [2026] SASC 86 McIntyre J 11 Category eight 41 This category seeks discovery of an envelope marked “F.R. & J.W. Trust indenture documents very important keep safe” and its contents. The bundle of documents comprised in this envelope are exhibited to the Day Affidavit as NPD-10, albeit the respondents say that the documents had already been discovered or were not relevant to any pleaded issue. This category is no longer pressed. Category nine 42 This relates to communications between Iles Selley and Randle & Taylor relating to the proceedings. The applicant contends that communications between solicitors and third parties may bear on contribution and related proceedings and should be disclosed. 43 The respondents say that these documents are not directly relevant to the issues in dispute and further that r 73.3(3)(b) of the UCR expressly states that a document “need not be discovered in a List of Documents” if it “is a communication or record of a communication between parties (personally or by their lawyers) after institution of the proceeding”. 44 I agree that documents in this category are not required under UCR 73.3(3)(b) to be discovered and I decline to make an order for discovery in respect of category nine. Conclusion 45 For the reasons set out above, I decline to order the respondents to make further and better discovery of documents in any category and I dismiss the application.28 I do, however, consider it likely that the respondents’ Lists of Documents are defective in that it seems that they have not adequately completed schedule 3 setting out directly relevant documents that were once in their possession but are no longer available. In view of my uncertainty as to whether this is in fact the case, I do not formally order that the respondents file a further List of Documents, but I indicate that they should consider that issue in the light of this ruling. 28 FDN 50. -- 13 of 13 --