HUNTER AUTOMOTIVE GROUP PTY LTD -v- RANGE MOTORS PTY LTD [2026] WASC 205

[2026] WASC 205 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : HUNTER AUTOMOTIVE GROUP PTY LTD -v- RANGE MOTORS PTY LTD [No 2] [2026] WASC 205 CORAM : BYDDER J HEARD : 19 MAY 2026 DELIVERED : 29 MAY 2026 FILE NO/S : CIV 2430 of 2016 BETWEEN : HUNTER AUTOMOTIVE GROUP PTY LTD Plaintiff AND RANGE MOTORS PTY LTD Defendant Catchwords: Practice and procedure - Discovery - Unconscionable conduct - Misleading and deceptive conduct - Application for leave to administer interrogatories and seek production of documents - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 1 r 4B, O 26 r 7(1), O 27 r 1(1), O 27 r 9 -- 1 of 32 -- [2026] WASC 205 Page 2 Result: Application granted in part Category: B Representation: Counsel: Plaintiff : Mr R W Douglas Defendant : Mr D Pratt Solicitors: Plaintiff : Couldwell Legal Defendant : Jackson McDonald Cases referred to in decision: Archer v Neuendorf [2014] QDC 091 Blackett v Clutterbuck Bros (Adelaide) Ltd [1923] SASR 301 Dever v Creevey [1993] 1 Qd R 232 Edwards v Stocks [No 1] [2008] TASSC 12 Girgis v Poliwka [2015] WASC 446 Girgis v Poliwka [No 3] [2018] WASC 133 Maek Pty Ltd v Ibrahim [2022] WASC 285 R v Hartley [1972] 2 QB 1 R v St Anne, Westminster [1846] 15 LJMC 119 R v St Paul's, Covent Garden [1845] 14 LJMC 109 Roe v The State of Western Australia [2013] WASC 130 -- 2 of 32 -- [2026] WASC 205 BYDDER J Page 3 BYDDER J: The application 1 By chamber summons filed 30 May 2025 (and sought to be amended on 25 May 2026) the plaintiff seeks leave under O 26 r 7(1) and O 27 r 1(1) of the Rules of the Supreme Court 1971 (WA) (Rules), having regard to the Rules O 1 r 4B, to interrogate and seek production of documents in terms of an amended notice (application). A copy of the amended notice is Attachment A to these reasons. 2 The defendant opposes the application. 3 The plaintiff filed submissions in support of the application on 2 September 2025 (plaintiff's submissions). The defendant filed submissions in opposition to the application on 21 April 2026 (defendant's submissions). The plaintiff filed submissions in reply on 14 May 2026 (reply submissions). 4 I heard oral submissions by counsel for each party at the hearing of the application on 19 May 2026. 5 At the hearing, three affidavits were tendered in evidence without objection, namely the affidavit of: (a) Toni Maree Hunter (Ms Hunter), the sole director of the plaintiff, sworn and filed 30 May 2025 (Exhibit 1); (b) Ms Hunter sworn and filed 18 May 2026 (Exhibit 2); and (c) Tyson Mark Sutton (Mr Sutton), a director of the defendant and its parent company Regent Motors Pty Ltd (Regent), sworn and filed 29 April 2026 (Exhibit 3). The relevant dispute on the pleadings for the purpose of the application 6 The plaintiff's claim concerns circumstances surrounding the sale by the plaintiff to the defendant of a motor vehicle dealership called Range Ford on or about 3 June 2016.1 1 Fifth Further Re-Amended Statement of Claim filed 24 December 2025 (Claim) [28(a) and (d)]; Fourth Further Amended Defence filed 25 February 2026 (Defence) [31.1]. -- 3 of 32 -- [2026] WASC 205 BYDDER J Page 4 7 The plaintiff relevantly alleges that, to quote from the plaintiff's submissions at [4]: Yearsley acted as a trusted professional advisor to the plaintiff in the sale of the Range Ford business, yet suffered a fundamental contemporaneous conflict of duty and fidelity, including because he had incompatible and undisclosed interests with the defendant. 8 This allegation is reflected in the Claim [3NA], to which the plaintiff's submissions refer at [5]: From not later than on or about 20 January 2016, Sutton and Yearsley were discussing and negotiating a future role for Yearsley as an executive at Regent: (a) independent of; and (b) subsequent to the conclusion of; his role at Deloitte. 9 As to that paragraph of the Claim, in its Defence [3NA] the defendant pleads that it: 3NA.1 admits that Sutton and Yearsley commenced discussing and negotiating a possible role for Yearsley at Regent in or about June 2016; and 3NA.2 otherwise denies paragraph 3NA. 10 Counsel for the plaintiff attaches significance to this plea in the Defence because, he submits: (a) the impugned aspect in this case of the plaintiff's sale of Range Ford to the defendant commenced on 1 June 2016 and substantially resolved on 3 June 2016;2 (b) the phrase 'in or about June 2016' in the Defence [3NA] 'conveys an approximate sense of time, meaning around the time unit stated, being reasonably approximate (including up to 3 such units either side of the "on or about" unit)';3 2 Plaintiff's submissions [8], referring to the Claim [26] and [28] and the Defence [29] and [31]. 3 Plaintiff's submissions [7], citing Blackett v Clutterbuck Bros (Adelaide) Ltd [1923] SASR 301 at 307 (Full Court); Edwards v Stocks [No 1] [2008] TASSC 12 [25] (Full Court); Dever v Creevey [1993] 1 Qd R 232 at 238-239 (Full Court); R v Hartley [1972] 2 QB 1 at 7D; Archer v Neuendorf [2014] QDC 091 [121]; R v St Paul's, Covent Garden [1845] 14 LJMC 109; R v St Anne, Westminster [1846] 15 LJMC 119. -- 4 of 32 -- [2026] WASC 205 BYDDER J Page 5 (c) on the Defence it does not appear to be in issue between the parties that Mr Yearsley and Mr Sutton were in discussions or negotiations about a future role for Mr Yearsley in Regent not only between 1 and 3 June 2016 but perhaps as early as March 2016;4 (d) it is in issue between the parties whether the discussions or negotiations between Mr Yearsley and Mr Sutton about a future role for Mr Yearsley was occurring up to two months earlier from 20 January 2016;5 and (e) the plaintiff reasonably and properly wishes to know what transpired between the defendant and Mr Yearsley when that is not knowledge available to the plaintiff, given the potential significance of those facts to the Claim and 'the concession in the Defence borders on opaque'.6 11 I have considered each of the seven authorities on which counsel for the plaintiff relies for his submission that the defendant's admission in Defence [3NA] can be understood as an admission that Mr Yearsley and Mr Sutton were in discussions or negotiations about a future role for Mr Yearsley in Regent perhaps as early as March 2016. I am not yet persuaded that those authorities - and in particular the authorities cited from this and the last century - support the submission that the phrase 'in or about June 2016' in Defence [3NA] can be understood as extending so far as March 2016. The authorities appear to stand for the proposition that the phrase 'on [in] or about' a specified date can extend to another date that has a reasonable approximation to the specified date. 12 However, I do not have to come to a concluded view on whether the admission in Defence [3NA] should be so understood. In my opinion nothing turns on that for the purpose of determining the application. 13 The admission in the Defence [3NA] is capable of extending to the three days comprising 1 to 3 June 2016, but it is unclear whether it is intended to do so. Further, the parties are in dispute about when the discussions or negotiations about a future role for Mr Yearsley in Regent began. 4 Plaintiff's submissions [9]. 5 Plaintiff's submissions [10]. 6 Plaintiff's submissions [11] - [12]. -- 5 of 32 -- [2026] WASC 205 BYDDER J Page 6 14 The dispute as to those discussions or negotiations exists in a context where, to borrow from the helpful summary of the dispute between the parties in the defendant's submissions:7 (a) by no later than 25 February 2016 (the date being in dispute), the plaintiff and the defendant had entered into an agreement in relation to the sale and purchase of Range Ford for $5.8 million; (b) by a written document dated 12 April 2016, that sale price for Range Ford was reduced by $369,555 (Amended Sale Price); (c) on 3 June 2016, the sale by the plaintiff of Range Ford to the defendant settled for $400,000 less (the Further Reduction) than the Amended Sale Price; and (d) the plaintiff and the defendant are in dispute about the circumstances which resulted in the settlement of the sale of Range Ford and the Further Reduction, including as to: (i) whether the defendant engaged in unconscionable conduct at common law or under the Australian Consumer Law by taking unconscientious advantage of the plaintiff finding itself at a position of special disadvantage in that, among other matters, the plaintiff needed to settle on the Range Ford sale to complete the purchase of another motor vehicle dealership and Mr Yearsley was, to the defendant's knowledge, in a position of conflict; (ii) when Mr Sutton and Mr Yearsley were in discussions or negotiations about a future role for Mr Yearsley in Regent; (iii) whether (and if so when) Mr Yearsley advised Mr Sutton and Regent on the purchase of Range Motors or two other motor vehicle dealerships; (iv) whether (and if so when) Mr Yearsley communicated to Mr Sutton information about where Regent's interest lay in the sale of Range Ford without distinguishing between Mr Yearsley's duties to the plaintiff and Regent's best interest; 7 Defendant's submissions [12] - [18]. -- 6 of 32 -- [2026] WASC 205 BYDDER J Page 7 (v) whether Mr Yearsley's prospective position at Regent was at real or apparent risk if he were to act inconsistently with the interests of Regent or the defendant; and (vi) whether Mr Yearsley was acting in a position of conflict because of his interest in obtaining an executive position with Regent which had not been fully disclosed to the plaintiff and, if so, from when. 15 The matters in question on the pleadings bear on the defendant's discovery and Mr Sutton's evidence in Exhibit 3, to which I now turn. The defendant's discovery in relation to Mr Yearsley and Exhibit 3 The discovery orders and discovery given by the defendant 16 On 11 April 2019, Strk AJ made orders by consent of the parties requiring the parties to give discovery on affidavit and for inspection of documents discovered. Her Honour's orders contemplated that discovery and inspection would be completed by 24 May 2019, just over seven years ago. 17 The effect of Strk AJ's orders was relevantly that the parties were to give general discovery. Each party was required to discover all documents which were, or had been, in that party's possession, custody or power and which related to any matter in question. That obligation extended to every such document which it was reasonable to suppose contained information that may either directly or indirectly enable the party seeking discovery to advance their case or damage the other party's case, including documents which may fairly lead to a train of enquiry that may have either of those two consequences.8 18 At the time Strk AJ made those orders the current pleadings were the Amended Statement of Claim (ASOC) filed 16 October 2018 and the Amended Defence and Counterclaim (ADC) filed 14 December 2018. 8 See Civil Procedure Western Australia [26.1.2]. -- 7 of 32 -- [2026] WASC 205 BYDDER J Page 8 19 There were matters in question on those pleadings relating to Mr Yearsley, including ones arising from the following plea in ASOC [5B]: Deloitte was at all material times providing audit and business services to the plaintiff and the defendant whilst Yearsley was: (a) representing Sutton and defendant as purchaser of Range Ford; (b) representing Hunter and plaintiff as vendor of Range Ford; (c) shortly after the scheduled completion of the Range Ford Sale, to cease his employment with Deloitte and become an employee and/or agent of [Regent], a company controlled by Sutton; (d) not disclosing to Hunter that he was imminently about to become an employee and/or agent of [Regent]; and Deloitte did not disclose to Hunter or defendant any matter pleaded in this paragraph. 20 So far as Mr Yearsley was concerned, the defendant pleaded in response to ASOC [5B] that Mr Yearsley commenced employment with Regent in or about November 2016 and otherwise did not admit the paragraph.9 It follows that the matters in question on the pleadings at that time included (to quote from the reply submissions [13]) 'when, how and on what terms Mr Yearsley came to be engaged by Regent while he was advising the plaintiff in relation to the Range Ford transaction'. 21 On 22 May 2019, the defendant filed an affidavit of discovery sworn by Mr Sutton on that day. As is usual in an affidavit of discovery, Mr Sutton deposed in his affidavit that: 8. The defendant has made all reasonable enquiries, including of its employees and agents, to identify all documents of any description whatever relating to any matter in question in this action that are or were in its possession, custody or power. 9. To the best of my knowledge, information and belief, neither the defendant, nor its practitioner, nor any other person on its behalf, has now, or ever had possession, custody or power over any document of any description whatever relating to any matter in question in this action, other than the documents listed in Parts 1A and 2A of Attachment A. 9 ADC [7], especially [7.4] - [7.5]. -- 8 of 32 -- [2026] WASC 205 BYDDER J Page 9 22 On 26 May 2020, Hill J ordered the parties to give any supplementary discovery on affidavit by 1 July 2020. That time was later extended by Allanson J with the consent of the parties to 15 October 2021.10 The obligation remained one of general discovery. 23 At that time, the current pleadings were the Second Further Re-Amended Statement of Claim filed 9 March 2020 (2FRASC) and the Second Further Amended Defence (2FAD) filed 13 May 2020. By that time the plaintiff had pleaded in more detail about Mr Yearsley,11 including in the 2FRASC [3R] and [3S]: 3R. From at least 23 January 2016, Yearsley disclosed to Sutton (and by him Regent and, upon incorporation, the defendant): (a) the price range sought by the defendant for the sale of the Range Ford business; (b) that Hunter (and therefore the plaintiff) sought a quick and uncomplicated sale so that Hunter could direct her attention to on [sic] a new automotive dealership acquisition and business in Albany, and no longer be located in Perth; (c) that the plaintiff therefore sought a reliable price in the heads of agreement which would alter upon a review of the value of the business assets. 3S. By reason of the matters pleaded at 3A to 3R: (a) the plaintiff was dependent upon the advice of a trusted commercial advisor, Yearsley, as to the negotiation of the terms of the sale of the Range Ford business; (b) Deloittes and Yearsley had undertaken to the plaintiff that if any conflict of interest arose, they would fully disclose it, seek the plaintiff's informed consent, put in place strict safeguards to ensure fidelity, objectivity and independent [sic], at least Yearsley would cease to act for the plaintiff and, if the conflict of interest could not be averted, Deloittes would cease to act for the plaintiff; (c) in fact, Yearsley was a regular advisor to Regent and Sutton on acquisitions, and had given advice on the purchase of Range Ford by Regent before being engaged by the plaintiff; 10 Order 2 of the consent order made by Allanson J on 11 October 2021. 11 See for example 2FRASC [3A] to [3S]. -- 9 of 32 -- [2026] WASC 205 BYDDER J Page 10 (d) None of the defendant, Deloittes or Yearsley had disclosed that relationship to Hunter and the plaintiff; (e) The plaintiff was therefore dependent on the advice and negotiating skill of Yearsley, where none of Yearsley or Deloitte or the defendant had disclosed the factors which impaired his fidelity, objectivity and independence, which Yearsley and Deloitte had undertaken to disclose if they arose; (f) That dependence arose in circumstances where Yearsley had disclosed the plaintiff's vulnerability, as pleaded at paragraph 3R, in the course of advising Sutton and Regent; and (g) The defendant was aware of the plaintiff's dependence on the circumstances pleaded in the preceding sub- paragraphs, and took no steps to avert the dependence. 24 The defendant admitted that Mr Yearsley had disclosed the matters the plaintiff had pleaded in the 2FRASC [3R(b) - (c)] and otherwise denied the 2FRASC [3R] and [3S].12 The matters in question to which I referred above at [20] remained matters in question on the state of the pleadings in October 2021, as indeed they remain matters in question today. 25 On 15 October 2021, the defendant filed Mr Sutton's affidavit sworn on that day providing supplementary discovery. As is usual in the context of discovery, Mr Sutton deposed in his affidavit sworn 15 October 2021 in materially identical terms to paragraphs 8 and 9 of his affidavit sworn 22 May 2019.13 26 The defendant's discovery in respect of the matters in question to which I referred above at [20] identified a small number of documents. In Exhibit 1 [6] - [7], Ms Hunter deposes that: 6. I have reviewed the defendant's discovery in this matter, including with assistance from the plaintiff's solicitors with whom I have conferred as to that review. 7. From that review, it appears that the only document discovered and made available for inspection, or at all, which expressly addresses the terms of, negotiation of the terms of, or 12 2FAD [3R] and [3S]. The defendant's response to the pleas in the 2FRASC relating to Mr Yearsley must of course be understood in the context of its broader pleading to the 2FRASC. However, it is sufficient to refer to these aspects of the 2FAD for the purpose of resolving the application. 13 The only difference between them is that in paragraph 9 of Mr Sutton's affidavit sworn 15 October 2021, he also refers to the documents listed in his affidavit sworn 22 May 2019. -- 10 of 32 -- [2026] WASC 205 BYDDER J Page 11 communications as to the engagement of Mr Yearsley by Regent is that letter containing an offer of employment letter dated 23 September 2016, being Exhibit TMH-7 (at pages 21 - 25). The offer of employment letter to Mr Yearsley 27 There are features of the offer of employment letter (Exhibit TMH-7 to Exhibit 1) which raise a question about whether discoverable documents are, or had been, in the defendant's possession, custody or power which the defendant has not discovered, including: (a) the document not being signed by Mr Yearsley, despite the last page of the document requesting him to sign and the defendant's admission that Mr Yearsley was employed by Regent in November 2016; (b) references in the document to various attachments which have not been discovered; (c) references in the document to information given by Mr Yearsley to Regent to assess Mr Yearsley's application to become an employee; and (d) a reference in the document to a release date from Deloitte. 28 By his affidavit which is Exhibit 3, filed in response to the application, Mr Sutton deposes to: (a) the preparation of the offer of employment letter and attaches a draft of the letter of employment which he found on the local drive of his office computer (Attachment TMS-1) (Exhibit 3 [4] - [6]); (b) communications regarding the potential employment of Mr Yearsley (Exhibit 3 [7] - [13]), including: (i) a spreadsheet prepared by Mr Sutton and signed by him and Mr Yearsley on 25 June 2016 (Attachment TMS-2); and (ii) an email between Mr Sutton and Mr Yearsley dated 21 May 2016, which Mr Sutton does not attach but which he deposes 'provided a comparison between the roles of Chief Financial Officer and Financial Controller -- 11 of 32 -- [2026] WASC 205 BYDDER J Page 12 … [and] does not relate to the potential employment of Mr Yearsley';14 (c) the employment application process for Mr Yearsley (Exhibit 3 [14] - [19]); (d) the lack of any consideration by Regent's board of Mr Yearsley's employment (Exhibit 3 [20] - [24]); (e) the lack of any attachments to the offer of employment letter (Exhibit 3 [25] - [29]); (f) Mr Yearsley having never countersigned the offer of employment letter (Exhibit 3 [30] - [31]); and (g) Mr Yearsley's employment records with Regent, including a tax file number form (Attachment TMS-3) and a payroll record showing Mr Yearsley's date of employment was 9 November 2026 (Attachment TMS-4) (Exhibit 3 [32] - [35]). 29 In Exhibit 3 Mr Sutton deposes to conducting searches which I would expect to have been undertaken in providing discovery, but were unlikely of themselves to have been sufficient to discharge the defendant's discovery obligations, such as a search of the local drive on Mr Sutton's office computer15 and of Mr Yearsley's personnel file.16 30 It is unclear from Exhibit 3 whether additional searches have been made for documents relating to the offer of employment to Mr Yearsley. For example, Mr Sutton deposes in Exhibit 3 [13] that: Given the passage of time, I do not recall any other written communications that I may have had with either Mr Yearsley or anyone else regarding the terms of Mr Yearsley's appointment. 31 The only searches to which Mr Sutton deposes in Exhibit 3 are of the local drive on Mr Sutton's office computer, 'hard copy records', Mr Sutton's office outlook email account, Mr Yearsley's personnel file and (it appears) Regent's payroll records.17 There is no evidence from Exhibit 3 that there has been a search of (to take a non-exhaustive example) the local drives or email accounts of Regent's employees. 14 Exhibit 3 [9]. 15 Exhibit 3 [5], [7]. 16 Exhibit 3 [31]. 17 Exhibit 3 [5], [6], [7], [31], [34]. -- 12 of 32 -- [2026] WASC 205 BYDDER J Page 13 32 I make no finding on the nature or extent of the searches undertaken by the defendant in giving discovery in 2019 and 2021. Nor do I make any credibility finding about Mr Sutton in relation to his discovery affidavits and the discovery provided by the defendant. 33 It is sufficient for the purpose of determining this application to note that: (a) no satisfactory explanation has been given for why the four documents attached to Exhibit 3, all of which relate to a matter in question on the pleadings, were not discovered in 2019 or 2021; and (b) Mr Sutton's evidence in Exhibit 3 is qualified in places by phrases to the effect that his memory or that the availability of the defendant's records has been affected by the passage of time.18 This is relevant to determining the application, given the opportunities in 2019 and 2021 to provide discovery, the unexplained failure to discover the four documents attached to Exhibit 3 in 2019 or 2021 and that those problems can be expected to only worsen over time. 34 In her later affidavit (Exhibit 2), Ms Hunter responds to some of Mr Sutton's evidence in Exhibit 3. On the offer of employment letter, one version of which is Exhibit TMH-7 in Exhibit 1 (discovered letter) and another draft version of which is Attachment TMS-1 in Exhibit 3 (draft letter), Ms Hunter deposes in part that:19 As to TMS-1 to Mr Sutton's affidavit, my solicitors sought and obtained the native format original of that document from the defendant's solicitors. A true copy of the metadata from that document is shown at TMH-22. A true copy of the redlined revisions by author can be seen at TMH-23. Although my solicitors sought the native format of the original document from which Mr Sutton deposes it was copied from, the defendant has refused to give that document, without explanation: A true copy of the relevant correspondence is contained in attachment TMH-15. 18 Exhibit 3 [4] ('Whilst I cannot now recall doing so'), [6] ('I cannot recall'), [13] ('Given the passage of time, I do not recall'), [16] ('Given the passage of time, I cannot recall precisely'), [17] ('To the best of my recollection'), [25] (in relation to the offer of employment letter, 'To the best of my recollection, there were no attachments to the Letter'), [29] ('Regent Motors has not retained a copy of the Welcome Pack that was current at the time that the Letter was drafted'), [30] ('To the best of my recollection, Mr Yearsley never countersigned the Letter'), [32] ('To the best of my recollection, Regent Motors did pay Mr Yearsley's phone and internet bills from the time that he was first employed. Given the passage of time, I verily believe that Regent Motors has not retained any records'), [35] ('As far as I can recall, Regent Motors did not create or maintain any records for the allocation of company cars'). 19 Exhibit 2 [37]. -- 13 of 32 -- [2026] WASC 205 BYDDER J Page 14 35 The metadata in Exhibit TMH-22 to Exhibit 2 records the author of the discovered letter to be Sarah Stanton, that the document was last modified by Mr Sutton and, under the heading 'Related Dates': Last Modified 17-Mar-26 2:53 PM Created 25-Jun-16 12:50 PM Last Printed 17-Mar-26 2:53 PM 36 In relation to the discovered letter, the draft letter and the draft of the letter with redlined revisions by the author that is Exhibit TMH-23 to Exhibit 2 (redlined letter), counsel for the plaintiff drew my attention to a number of matters including: (a) Exhibit 2 page 71 (part of the redlined letter) has a red box containing Page 5: [1] Deleted Yearsley, Matthew (AU - Perth) 30-May-16 7:36:00 AM which counsel for the plaintiff submits shows that Mr Yearsley was amending the redlined copy on 30 May 2016; (b) the date at the head of the offer of employment letter, which appears as: (i) 23/09/2016 in the discovered letter; and (ii) 14XX/0406/2016 in the draft letter and in the redlined letter, which counsel for the plaintiff submits could suggest that the original date was 14 April 2016 (albeit I note that could be the date of the letter which Mr Sutton says he used as a template,20 the intended date of the offer to Mr Yearsley or something else); (c) if the draft copy was based on a template letter prepared for someone else, counsel for the plaintiff submits that it bears many similarities to the discovered copy which was the offer of employment to Mr Yearsley and may suggest that Mr Yearsley was drafting his own offer of employment as early as May 2016; 20 Exhibit 3 [5]. -- 14 of 32 -- [2026] WASC 205 BYDDER J Page 15 (d) both the draft letter and the redlined letter bear the heading 'Offer of Employment - Chief Financial Officer', and state under the heading 'Position' that 'You will be employed in the position of Dealer Principal Chief Financial Officer of Range Ford Regent Motors Group while the discovered letter bears the heading 'Offer of Employment - GM for Business Development & Strategy' and states under the heading 'Position' • To direct and manage projects in conjunction with the Managing Director and Group Financial Controller for a period of 12 months. • From 1 January 2018 the role will become the Chief Financial Officer and responsibilities will be commensurate with that position. 37 The references to the appointment of a Chief Financial Officer in each of the discovered letter, the draft letter and the redlined letter may take on particular significance given Mr Sutton's evidence in Exhibit 3: 8. Through those searches, I identified only two documents. 9. The first was an email from Mr Yearsley to myself dated 21 May 2016, which provided a comparison between the roles of Chief Financial Officer and Financial Controller. That email does not relate to the potential employment of Mr Yearsley. 10. At the time, Regent Motors had a Financial Controller, but I was actively trying to grow the Regent Motors group and was concerned about whether the existing finance structure and controls would be adequate for a larger operation. 11. I knew that Mr Yearsley had had experience when working in Sydney with automotive groups that were bigger than Regent Motors and had experience with different corporate finance structures. Accordingly, I sought Mr Yearsley's advice as to what structure would best accommodate growth and sought his advice as to the differences between the roles of Chief Financial Officer and Financial Controller. 38 Counsel for the plaintiff drew my attention to the fact that the email from Mr Yearsley to Mr Sutton dated 21 May 2016 was not attached to Exhibit 3. The plaintiff by its proposed amended chamber summons filed 25 May 2026 seeks discovery of that document, including each and every version of the document and the native -- 15 of 32 -- [2026] WASC 205 BYDDER J Page 16 electronic formats of the document. I will hear the parties on that application. 39 Ms Hunter also refers to the remuneration spreadsheet for Mr Yearsley which is Attachment TMS-2 to Exhibit 3 (remuneration spreadsheet) and which Mr Sutton deposes was signed by Mr Yearsley and Mr Sutton on 25 June 2016. Ms Hunter deposes that21 In my experience as an employer in the automotive industry, a remuneration arrangement of that degree of detail and significance would ordinarily be preceded, accompanied, and followed by communications and records concerning the making of the offer, negotiation of terms, approval, commencement planning, payroll implementation, tax and superannuation setup, allocation of benefits, the involvement of legal advisors and other professional advisors, and retention of executed records. 40 Counsel for the plaintiff submits that it is inherently unlikely that a remuneration arrangement of the kind reflected in the remuneration spreadsheet would be documented only by one spreadsheet and one unsigned letter. He also emphasises the proximity between the date when the remuneration spreadsheet was signed (25 June 2016) and what he submitted was the impugned aspect in this case of the plaintiff's sale of Range Ford to the defendant (in the three days from 1 to 3 June 2016).22 41 I note Mr Sutton's evidence about when the remuneration spreadsheet was prepared and his usual practice of making decisions within a week, as well as his evidence that given the passage of time, he cannot recall precisely when he first approached Mr Yearsley about employment.23 42 It would be premature for me to make any finding on those matters. It is also unnecessary for me to refer in more detail to Ms Hunter and Mr Sutton's evidence in Exhibits 1, 2 and 3, save in relation to the email chain between Mr Yearsley and Mr Tyson dated 23 January 2016 (see below). 43 It is sufficient for the purpose of determining the application to say that on the evidence before me, there is ample reason to believe that there may be additional discoverable documents relating to matters in question as they relate to Mr Yearsley, including 'when, how and on 21 Exhibit 2 [15]. 22 Reply submissions [29] - [32]. 23 Exhibit 3 [16]. -- 16 of 32 -- [2026] WASC 205 BYDDER J Page 17 what terms Mr Yearsley came to be engaged by Regent while he was advising the plaintiff in relation to the Range Ford transaction' (see [20] above). The email chain between Mr Yearsley and Mr Tyson dated 23 January 2016 44 Ms Hunter also deposes in Exhibit 1 [4] to the existence of three other documents discovered by the defendant including, relevantly to the application, an email chain between Mr Yearsley and Mr Sutton dated 23 January 2016 but starting on 22 January 2016 (email chain). The email chain is exhibit TMH-1 to Exhibit 1 and is the email chain to which the amended notice refers at [1]. The email chain is also cited as a particular to the Claim [3H], which is in the following terms: From at least 23 January 2016, Yearsley and Deloitte were at all material times auditors, tax advisors and professional advisors to Regent and entities under its control, being a corporation of which Sutton was at all material times a director and the principal executive, including with respect to contemporaneous transactions where Yearsley and Deloitte were advising Sutton and Regent: (a) as to the acquisition and management of the Auto Classic automotive dealership in Perth, as to which Yearsley gave advice to Sutton and Regent as late as at least 23 January 2016; (b) as to the acquisition of the business of Range Ford automotive dealership, as to which Yearsley gave advice to Sutton and Regent as late as at least 23 January 2016; and (c) as to the acquisition and management of Geographe Ford automotive in Bunbury, as to which Yearsley gave advice to Sutton and Regent as late as at least 23 January 2016; and where Yearsley was authorised to, and did, make enquiries as an agent of Regent, gave advice, and had duties of confidentiality to, Regent; and (d) where none of Yearsley or Deloitte disclose any of those matters to Hunter. 45 The Defence [3H] pleads to the Claim [3H] that the defendant: 3H.1 admits that at all material times Deloitte were auditors and tax advisers to the defendant and its related entities; -- 17 of 32 -- [2026] WASC 205 BYDDER J Page 18 3H.2 says that: (a) the transaction by which the defendant acquired the automotive dealership known as "Auto Classic" settled on or about 4 August 2015; (b) the transaction by which the defendant acquired an interest in the automotive dealership known as "Geographe Ford" settled in or about December 2013; 3H.3 otherwise denies paragraph 3H and without limiting the preceding denial, specifically denies that Deloitte or Yearsley were advising Sutton and Regent in relation to acquisition of the business of the Range Ford automotive dealership. 46 I will refer to the email chain later in these reasons in the context of paragraph 1 of the amended notice. Legal principles 47 In Maek Pty Ltd v Ibrahim,24 Quinlan CJ observed: The contemporary principles in relation to discovery are now well- established. They include: 1. A party does not have a strict entitlement to an order for discovery. 2. The power to order discovery is discretionary. 3. The discretion is to be exercised having regard to the timely and cost effective disposal of litigation. 4. On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice. 5. Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'. 6. The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings. 7. Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered. 24 Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [26] (footnotes omitted). -- 18 of 32 -- [2026] WASC 205 BYDDER J Page 19 In this context, as Martin CJ observed in Roe v The State of Western Australia:25 [T]he extent of the obligation to give discovery and the entitlement to discovery will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court 1971 (WA) and in particular the principles enunciated in O 1 r 4A and r 4B. Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties. In the context of discovery, this means that when issues arise with respect to the breadth of the discovery to be ordered, the ambit of discovery will be determined taking into account the cost and delay associated with the provision of discovery over a broader ambit, as compared to the forensic benefit likely to be derived from the provision of discovery over that broader ambit. Unless the cost and delay involved in the provision of that discovery is proportionate to the forensic benefit likely to be derived from a broader ambit of discovery, and to the value and importance or complexity of the subject matter of the proceedings, a narrower ambit of discovery will be ordered. 48 Subject to these principles, on an application or of its own motion the court (having regard to the Rules O 1 r 4B) may order any or all parties to give discovery as provided by the Rules O 26 r 7. The court's power to make such an order is not exhausted as a result of a general discovery order having been made and is to be given a broad construction.26 49 As counsel for the plaintiff submitted, interrogatories and orders to discover documents are each aspects of the same body of principles and rules, namely discovery.27 However, as Mitchell J observed in Girgis v Poliwka28 'the experience of the law is that interrogatories frequently waste parties' time and divert resources from the substantive resolution of the matter.' 25 Roe v The State of Western Australia [2013] WASC 130 [10] - [11]. 26 Civil Procedure Western Australia [26.7.1]. 27 Civil Procedure Western Australia [27.0.1]. 28 Girgis v Poliwka [2015] WASC 446 [3]. -- 19 of 32 -- [2026] WASC 205 BYDDER J Page 20 50 In Girgis v Poliwka [No 3],29 Derrick J said in respect of interrogatories: 11 It is well established that there is no right to issue interrogatories under O 27 r 1. The discretion to order interrogatories is to be exercised with regard to the case management principles expressed in O 1 r 4B of the [Rules]. 12 The purpose of the requirement for leave to be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose. The range of legitimate forensic purposes that can be served by the administration of interrogatories is not closed. A legitimate forensic purpose includes gathering information in relation to events which are outside the knowledge of a party and which can be assumed to be within the knowledge of the party to whom the interrogatories are administered. This is a legitimate forensic purpose because it facilitates the administration of justice by assisting a party to prove a matter particularly within the knowledge of the other party by requiring the provision of sworn answers which can be tendered at trial: Girgis v Poliwka [2015] WASC 446 [2]. 13 Interrogatories must relate to a 'matter in question' between the parties: O 27 r 1. Interrogatories do not relate to a matter in question unless they can fairly be said to be directed at adducing material to support a party's case or destroy that of the party's opponent: Hennessy v Wright (1890) 24 QBD 445, 447; Ugle v The State of Western Australia [2002] WASCA 117 [18]. 14 The ability to give leave to interrogate is not confined to those cases in which the interrogatories relate to facts that are directly in issue. Rather, it extends to the situation where the interrogatories address facts the existence or non-existence of which are relevant to the existence or non-existence of facts directly in issue: Marriott v Chamberlain (1886) 17 QBD 154, 163; Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101, 112; Ugle v The State of Western Australia [18]. 51 I gratefully adopt Quinlan CJ and Derrick J's statements of the relevant principles in relation to discovery and interrogatories. 52 I note that counsel for the plaintiff submits that the application is distinguishable from the interrogatories considered in the Poliwka cases. I accept that the application is materially different from those interrogatories. However, the principles identified by Derrick J remain 29 Girgis v Poliwka [No 3] [2018] WASC 133 [11] - [14]. -- 20 of 32 -- [2026] WASC 205 BYDDER J Page 21 relevant to my consideration of the application so far as it relates to interrogatories. Consideration 53 It is convenient to consider the amended notice by reference to the paragraphs of the amended notice with Arabic numerals. While the amended notice must be read in its entirety, including with reference to the paragraphs with Roman numerals, the focus of both parties' submissions were on the Arabic numbered paragraphs. The parties' submissions Submissions generally applicable to the requests in the amended notice Defendant's submissions 54 Aside from submissions on the law, including reference to the two Poliwka cases, counsel for the defendant's submissions focus on the requests in paragraph 1 and the requests in paragraphs 2 to 5. Plaintiff's submissions 55 As to the interrogatories and further and better discovery sought by the amended notice generally, counsel for the plaintiff submits that: (a) they are proportionate, because they concern a central issue, the quantum in dispute is significant, the defendant's discovery is incomplete, the defendant's own evidence has revealed new documents and the requests are confined to a single factual controversy; (b) answers to the interrogatories and further discovery would identify the relevant factual case now, avoid surprise, narrow the issues, reduce the length and opacity of cross-examination and assist the just, quick and cheap resolution of the real controversy; (c) there is now a concrete reason to believe that further relevant documents exist or existed; and (d) they are not speculative but seek exactly the kinds of documents that the defendant's own documents indicate exist or existed and, if there are no documents, interrogatories are appropriate to capture unwritten material as best as it can be captured. -- 21 of 32 -- [2026] WASC 205 BYDDER J Page 22 Assessment of the submissions 56 I accept that further and better discovery is required from the defendant in relation to: (a) Mr Yearsley's advice to the defendant, Regent and Mr Sutton on the three transactions pleaded in the Claim [3H] and referred to in the email chain; (b) Mr Yearsley's employment by Regent; and (c) the events from the first approach by Mr Sutton or Regent to Mr Yearsley about accepting employment with Regent until Mr Yearsley commenced employment with Regent in November 2016. 57 Those matters are central to the plaintiff's case as pleaded and are within the defendant's knowledge, not the plaintiff's. Case management principles support requiring the defendant to give further and better discovery, provided that requirement is appropriately targeted. 58 It is also apparent from the documents attached to Exhibit 3 that the defendant's discovery was incomplete. As I have said, there is ample reason to believe there may be additional discoverable documents relating to matters in question as they relate to Mr Yearsley. 59 Until further and better discovery is provided by the defendant, it is premature to determine whether leave should be granted to the plaintiff to administer interrogatories. Leave may be inappropriate in light of further and better discovery and the interrogatories in respect of which leave is sought may be different. For example, they may be easier to draft in a way likely to ask questions the answers to which can be tendered in evidence under the Rules O 27 r 9. 60 Once further and better discovery has been provided by the defendant, the plaintiff can consider whether it wishes to apply again for leave to administer interrogatories to the defendant. -- 22 of 32 -- [2026] WASC 205 BYDDER J Page 23 Paragraph 1 Defendant's submissions 61 Counsel for the defendant submits that so far as it provides for interrogatories, paragraph 1 is vague and oppressive because it requires the defendant: (a) to discern what is meant by matters 'touched upon' in the email; (b) to identify the actual or contemplated parties and each natural person representing or speaking for them (and what is meant by 'speaking for them'); (c) if a matter 'touched upon' is a historical matter, the defendant will have to state the matters referred to in paragraph 1(b); and (d) if a matter 'touched upon' is a prospective or contemplated transaction or dealing, the defendant will have to state the matters referred to in paragraph 1(c). 62 The defendant also submits that the vagueness and oppressive nature of paragraph 1 is illustrated by reference to the sale of Range Ford, as this would require the defendant to identify the proposed parties to the sale as at 23 January 2016, identify the natural persons representing or speaking for them (presumably at any time up to 23 January 2016) and state the information required by paragraph 1(b) in relation to the sale of Range Ford. 63 Counsel for the defendant also submits that so far as paragraph 1 relates to Range Ford, it is difficult to discern what forensic purpose the request would serve. In this regard, he noted that the ultimate question is what an answer to paragraph 1 will do to facilitate proof at trial. 64 To the extent that paragraph 1 seeks further and better discovery, counsel for the defendant submits that there is no reason to believe that further relevant documents exist which have not been discovered or that the time and cost of searching for further documents is reasonable and proportionate. Plaintiff's submissions 65 Counsel for the plaintiff submits that the forensic purpose of paragraph 1 is plain, as it goes directly to the pleaded allegations that Mr Yearsley and Deloitte were advising Mr Sutton and Regent in -- 23 of 32 -- [2026] WASC 205 BYDDER J Page 24 relation to acquisitions, including of Range Ford, and that Mr Yearsley communicated information to Mr Sutton without differentiating his obligations to the plaintiff from Regent's interests. 66 He also submits that the email chain is a single, identified communication, it is already particularised in the Claim and the request seeks the defendant's account of the transactions, participants and responses it records. Assessment of submissions 67 I do not accept that there is no reason to believe further relevant documents exist and I consider the time and expense required to comply with an appropriately targeted order for further and better discovery is justified on case management principles. 68 However as it stands, paragraph 1 is too broad and lacks clarity. 69 As to its breadth, paragraph 1 goes well beyond Mr Yearsley's advice to the defendant, Regent or Mr Sutton. (a) It seeks details about everyone who was a party or contemplated to be a party to 'each matter touched upon' in the email chain. (b) The matters 'touched upon' in the email chain are not confined to the three transactions pleaded in the Claim [3H]. (c) It requires details of when those matters were concluded, when negotiations concerning them were commenced and concluded, what was carried out or contemplated to be carried out and by whom, when and how. 70 Because of its breadth, paragraph 1 goes beyond what is necessary for the fair disposal of the proceedings. 71 As to clarity, I agree with counsel for the defendant that it is unclear in the context of paragraph 1 how far the phrase 'each matter touched upon' extends. The use of terminology such as 'historical, prospective, and contemplated matters' also lacks clarity. For example, if a matter was in train as at 23 January 2016, is it a historical, prospective or contemplated matter or transaction? 72 Despite the above, I am prepared to consider an application for further and better discovery of documents relating to communications between or including Mr Yearsley and any of the defendant, Regent, -- 24 of 32 -- [2026] WASC 205 BYDDER J Page 25 Mr Sutton or any officer, employee, contractor or agent of the defendant, Regent or Mr Sutton about any one or more of the three transactions pleaded in the Claim [3H]. Paragraphs 2 to 5 Defendant's submissions 73 Counsel for the defendant submits that: (a) these proposed interrogatories relate to Mr Yearsley's employment by Regent; (b) the circumstances relating to Mr Yearsley's employment are explained by Mr Sutton in Exhibit 3 and his witness outline filed 18 May 2026; (c) Mr Sutton will be called as a witness at trial and can be cross-examined; (d) the plaintiff has also filed a witness outline from Mr Yearsley; (e) the time and expense of answering further interrogatories or giving further discovery directed to these issues will not advance the case management objects given the case is about the Further Reduction in the sale price for Range Motors of $400,000; (f) paragraphs 2 to 5 are oppressive and excessively wide, whether considered as interrogatories or requests for further and better discovery, reflected (by way of example) in it being common ground that Mr Yearsley was employed no later than November 2016 and yet paragraph 2(k) to (n) seek information and documents for the period up to 30 June 2017. Plaintiff's submissions 74 Counsel for the plaintiff submits that paragraphs 2 to 5 are directed to the precise matters which require clarification on the defendant's own evidence and lie at the centre of the plaintiff's case, namely when the first employment communication occurred, what terms were proposed, what information was provided by Mr Yearsley, what drafts and related communications existed, and what records were created in implementing Mr Yearsley's employment. -- 25 of 32 -- [2026] WASC 205 BYDDER J Page 26 75 As to the witness outline of Mr Yearsley, counsel for the plaintiff informed me that the plaintiff will not be calling Mr Yearsley as a witness. Assessment of submissions 76 I do not accept the defendant's submissions as they relate to the evidence that Mr Sutton has given and may give at trial, including that Mr Sutton can be cross-examined. The plaintiff's capacity to effectively cross-examine Mr Sutton would depend in part on the insight into the circumstances surrounding Mr Yearsley's employment by Regent that further and better discovery may provide. Further, the fair disposal of the proceedings requires that the plaintiff be given access to documents relating to Mr Yearsley's employment and the information they contain which is within the defendant's knowledge and not the plaintiff's. 77 I do not consider that the witness outline from Mr Yearsley provides a basis for rejecting or narrowing the scope of paragraphs 2 to 5. In addition to the plaintiff not intending to call Mr Yearsley as a witness, access to documents relating to Mr Yearsley's employment may shed further light on matters in question on the pleadings relating to Mr Yearsley. 78 I also do not accept the defendant's submission that the time and expense of giving further discovery will not advance case management objects because the amount in dispute is $400,000. As the plaintiff contends, the amount involved may substantially exceed $400,000 and, in any event, the fair disposal of the proceedings requires further and better discovery by the defendant to the plaintiff. 79 Paragraphs 2 to 5 are neither oppressive nor excessively wide. To the extent that they seek documents after November 2016, they seek documents relating to the financial year beginning on 1 July 2016. Discovering those documents should not be unduly onerous and they have a legitimate forensic purpose, given documents of that kind may shed light on whether Mr Yearsley received benefits attributable to his engagement or employment by Regent before November 2016. 80 For those reasons, I am prepared to order the defendant to give further and better discovery generally in terms of paragraphs 2 to 5. However, paragraphs 2 to 5 will require amendment so that they seek further and better discovery and are not interrogatories. -- 26 of 32 -- [2026] WASC 205 BYDDER J Page 27 Conclusion 81 For the reasons set out above: (a) I decline to grant leave to the plaintiff to administer interrogatories at this time, but that does not foreclose the plaintiff seeking leave to administer interrogatories after the defendant has given further and better discovery; (b) I decline to order that the defendant give further and better discovery in terms of paragraph 1 of the amended notice, but I am prepared to consider an application for further and better discovery of documents relating to communications between or including Mr Yearsley and any of the defendant, Regent, Mr Sutton or any officer, employee, contractor or agent of the defendant, Regent or Mr Sutton about any one or more of the three transactions pleaded in the Claim [3H]; (c) I am prepared to order the defendant to give further and better discovery generally in terms of paragraphs 2 to 5, subject to paragraphs 2 to 5 being amended so that they only seek further and better discovery and are not interrogatories; and (d) I will hear the parties on: (i) the plaintiff's application to amend the chamber summons and the attached notice, including the plaintiff's application for discovery of the email from Mr Yearsley to Mr Sutton dated 21 May 2016, including each and every version of the document and the native electronic formats of the document; (ii) the costs of the application; and (iii) the orders necessary to give effect to these reasons. -- 27 of 32 -- [2026] WASC 205 BYDDER J Page 28 ATTACHMENT A -- 28 of 32 -- [2026] WASC 205 BYDDER J Page 29 -- 29 of 32 -- [2026] WASC 205 BYDDER J Page 30 -- 30 of 32 -- [2026] WASC 205 BYDDER J Page 31 -- 31 of 32 -- [2026] WASC 205 BYDDER J Page 32 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Honourable Justice Bydder 29 MAY 2026 -- 32 of 32 --