TQM Design & Construct Pty Ltd v East End Stage 2 Pty Ltd [2026] NSWSC 1032

Catchwords: BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 25, 32 — where plaintiff seeks to enforce a judgment entered after an adjudication — where defendant seeks orders for payment by monthly instalments — whether evidence established a just basis for making such an order — where defendant relies on case sought to be established in other proceedings in which it challenges the result of the adjudication CIVIL PROCEDURE — subpoena and notice to produce — motion — where defendant seeks production of financial records by subpoena and notice to produce — where relevance disputed — relevance not established Supreme Court New South Wales Medium Neutral Citation: TQM Design & Construct Pty Ltd v East End Stage 2 Pty Ltd [2026] NSWSC 1032 Hearing dates: 24 August 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. I order that East End’s motions be dismissed and that production of the disputed documents not be required. 2. Unless the parties approach within 14 days with short written submissions , East End Stage 2 Pty Ltd is to pay TQM Design & Construct Pty Ltd’s costs, as agreed or assessed. Catchwords: BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 25, 32 — where plaintiff seeks to enforce a judgment entered after an adjudication — where defendant seeks orders for payment by monthly instalments — whether evidence established a just basis for making such an order — where defendant relies on case sought to be established in other proceedings in which it challenges the result of the adjudication CIVIL PROCEDURE — subpoena and notice to produce — motion — where defendant seeks production of financial records by subpoena and notice to produce — where relevance disputed — relevance not established Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) , P t 3, ss 3, 8, 25, 32 Civil Procedure Act 2005 (NSW), ss 56, 107 Home Building Act 1989 (NSW), s 92 Strata Schemes Management Act 2015 (NSW), s 207 Uniform Civil Procedure Rules 2005 (NSW), rr 37.2, 42.1 Cases Cited: A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 Alliance Living Pty Ltd v Arch-System Fabrication Pty Ltd [2026] NSWCA 157 Chint Australisa Pty Limited v Socmoluce Pty Ltd [2008] NSWSC 1054 Davidson v Greedy [2012] VSC 202 East End Stage 2 Pty Ltd v TQM Design & Construct Pty Ltd & Ors [2026] NSWSC 299 Hellier Capital Pty Ltd v Albarran [2009] NSWSC 403 In the matter of Australian Institute of Fitness (VIC & TAS) [2016] NSWSC 1143 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145 SRG Civil Pty Ltd v Brolton Group Pty Ltd [2018] NSWSC 618 Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2022] NSWSC 1258 Category: Procedural rulings Parties: TQM Design & Construct Pty Ltd (Plaintiff) East End Stage 2 Pty Ltd (Defendant) Representation: Counsel: A Vincent (Plaintiff) J Jaffray & A Bell (Defendant) Solicitors: Salim Rutherford Lawyers (Plaintiff) McCullough Robertson (Defendant) File Number(s): 2026/318762 Publication restriction: No JUDGMENT On 3 August 2026 judgment was entered in favour of TQM for $6,376,275.23 . It having built certain terraces owned by East End under an October 2020 construction contract and later having obtained an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) , the SOP Act , in respect of what it claimed it was still owed under the contract . There is no issue that TQM is entitled to enforce that judgment , but that right has been stayed while East End ’ s application for an order for payment by instalments is resolved . Its earlier instalment application having been refused by the Registrar and it seeing to have that decision set aside and an instalment order made. To advance its case it issued a notice to produce and a subpoena by which it sought the production of various financial records which it expected would support the case it advanced. Their production was resisted by TQM on the basis of relevance. East End had earlier brought proceedings in the Technology and Construction List seeking an injunction to restrain the filing of the enforcement certificate as a judgment under s 25 of the SOP Act , as well as its enforcement. TQM did not oppose the injunction in those terms, provided that it was conditional on the a djudicated a mount being paid into Court , t hat being the Court ’ s usual practice . Instead , East End proffered a mortgage over its real property assets and a guarantee from a parent entity , which was not agreed . East End ’ s proposal was rejected by Nixon J : East End Stage 2 Pty Ltd v TQM Design & Construct Pty Ltd & Ors [2026] NSWSC 299 . His Honour concluding that East End ha d not established that it could not “ reasonably pay ” the a djudicated a mount into Court : at [80] . The orders made restrained TQM ’ s enforcement, on East End giving the Court the usual undertaking as to damages and do ing one of the following: “ (i) deposit in the Court’s bank account the sum of $6,168,174.34; or (ii) deliver to the Court an unconditional bank guarantee in the sum of $6,168,174.34 issued by the Commonwealth Bank of Australia, Australia and New Zealand Banking Group, Westpac Banking Corporation or National Australia Bank or such other approved deposit taking institution based in Australia as may be agreed to by the First Defendant naming the First Defendant as the favouree with no expiry date” East End did not do so , with the result that there was no issue that TQM was entitled to pursue the enforcement of the certificate , as it did , by obtaining judgment . East End then brought further proceedings in the Technology L ist to challenge the enforcement certificate under s 32 of the SOP Act . There is no question that in those proceedings, it is entitled to pursue re stitutionary recovery of the kind referred to in A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 . The second proceedings are in the process of being prepared for hearing. Amongst what is there in issue is whether TQM has already been paid $6,376,275.23 the subject of the judgment it seeks to enforce . This judgment deals with East End ’ s 6 and 11 August 2026 motions , by which it seeks orders for payment of what i t owe s under the judgment by monthly instalments of $354,237.51 , which would result in full payment over some 18 months. During which it expects that the second Technology List proceedings, where the dispute about the payment of the debt the subject of the judgment TQM seeks to enforce will be resolved , will be heard . It is in that context that the production of the disputed documents was resisted b y TQM as being irrelevant to what is in issue in relation to East End ’ s instalment application . W hich on its approach cannot turn on the claim East End pursues in the second Technology List proceedings . This is not accepted by East End, which contends that contemporaneous records in evidence support its case that it has already paid the disputed sum . A nd that the financial records are relevant to the exercise of the Court ’ s discretion to make the instalment order it seeks , given that they will support the case it advances in the second Technology List proceedings . East End ’ s motions are supported by affidavit s sworn by Mr Hawkins , G eneral Counsel of the Iris Group of which it is a member , and Mr Nielsen , East End ’ s solicitor . TQM re l ied on an affidavit s wo rn by Ms Saad , its solicitor . They were not required for cross - examination . Conclusion Given the purpose of the SOP Act and the applicable principles which I will explain, I am satisfied that it must be concluded that East End did not meet the onus which fell upon it to make out the case it pressed in respect of either motion. Its approach departing from the restitution which the SOP Act contemplates if it proves its contractual case in the second Technology List proceedings . Until East End succeeds in having the judgment which binds it set aside, the Court cannot proceed on the basis that it will or even is likely to succeed in those proceedings . The correctness of its case as to the claimed payment of the sum the judgment enforces , thus cannot be determined in these proceedings . D epending as that does not only on what the parties ’ contract actually required , but how it and other contractual arrangements under which it claims TQM was paid , were performed , which TQM disputes. The result is that it must be accepted that East End has not established that the disputed documents are relevant to its instalment application. Nor that a just basis exists for the instalment order which it seeks, given the limited evidence it adduced about its financial position . Issues The orders East End seeks were all opposed . TQM relying on the Registrar ’ s earlier refusal of East End ’ s instalment application , on similar e vidence . The applicable principles were not in issue, but their application and whether East End is entitled to advance its case in the way i t seeks to do, relying on contemporaneous documents to contend that it has already paid TQM the sum the subject of the certificate, is disputed. In issue thus was : w hether the production sought should be required ; and w hether the instalment application should be granted . In resolving what is in issue , account must be taken of the legislative purpose of the SOP Act to giv e cashflow to builders and subcontractors in advance of a final hearing in a court . T he policy of the Act being to place the risk of insolvency on the developer/principal contractor : A-Civil Aust Pty Ltd at [20] and [51] , citing Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [27] . In A-Civil , it having been observed t hat in contractual proceedings contemplated by s 32 of the SOP Act, if it was concluded that a payment made under the Act should, on the correct construction of the contract, not have been made, then “ [i] f necessary, a restitutionary order can be sought. Under the legislative scheme, t he risk that the party placed at an advantage by an underpayment or overpayment may later become incapable of meeting such an order is a risk that is assigned to the other party. ” : at [19]-[20], citing Probuild at [51]. The p roduction East End pursued can not justly be required The Court ’ s discretions hav e to be exercised in light of statutory scheme, as well as the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the CP Act. Namely, the just, quick, and cheap resolution of the real issues in the se proceedings. I am not persuaded that the production of the documents by TQM and the related third party — by and to whom various relevant payments were made, on which East End relies in the second Technology List proceedings, as was fully explained in oral submissions — can justly be required in these proceedings. Even though there is no issue that the documents are relevant in those proceedings and the applicable principles are those discussed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145 and the authorities there referred to. That is because it must be established that the documents are material to what has to be resolved in these proceedings , in respect of the instalment application. Given what the documents concern, I am not persuaded that the y are r elevant to what has to be determined in respect of that application . Unlike the second Technology L ist proceedings, East End here not challeng ing either the adjudication determination , or the judgment by which TQM seeks to enforce it , as it is entitled to do in accordance with the SOP Act . East End ’ s only application is for an order for payment of the judgment sum by instalment under s 107 of the CP Act . It expects that the production of the disputed financial records will help it to establish the case it advances in the second Technology Li st proceeding s , which are currently being prepared for hearing. Evidence on which East End relies now being due to be served . Rule 37.2 of the Uniform Civil Procedure Rules 2005 (NSW) entitles a judgment debtor like East End to apply to the C ourt for an instalment order , the application having to be supported by an affidavit “ as to the judgment debtor ’ s financial circumstances ” . The evidence East End led sheds but limited light on those circumstances, as it accepted. Wh ile shedding a great deal of light on the case which it pursues in the second proceedings, which it contended was relevant to its instalment application . I have not been able to accept that submission. The Rules do not specify what considerations must be taken into account on an instalment application, with the result that the Court ’ s discretion is a wide one. In SRG Civil Pty Ltd v Brolton Group Pty Ltd [2018] NSWSC 618 , N A dams J explained the settled principles a t [ 64]-[ 69 ]. They include: p rima facie a party having succeeded in obtaining substantial success is obviously entitled to the fruits of its success : Chint Australisa Pty Limited v Socmoluce Pty Ltd [2008] NSWSC 1054 at [15] and Hellier Capital Pty Ltd v Albarran [2009] NSWSC 403 at [19 ] ; t he onus of establishing that an instalment order should be made thus falls on East End, the applicant : In the m atter of Australian Institute of Fitness ( VIC & T AS ) [2016] NSWSC 1143 at [25 ] ; r elevant criteria identified in Hellier Capital at [7] being: the means the judgment debtor has to satisfy the judgment; whether the instalments sought will see the judgment debt paid within a reasonable time; the necessary living expenses of the judgment debtor and dependants; other liabilities of the judgment debtor; whether, having regard to the availability of other enforcement means, making the order would be consistent with the public interest in enforcing money orders efficiently and expeditiously; whether the order will impose unreasonable hardship on the judgment creditor. a n instalment order ought not to be made if the judgment debtor ’ s means are sufficient to allow payment of the judgment immediately and in full, or conversely, if the means are so deficient that the instalments could not be met and the making of the order would be futile; p rovisions of this kind exist ing to enable judgment creditors to obtain the fruits of their judgments. The ir purpose not being to curtail the rights available at law to obtain satisfaction of a judgment but, rather, to add a method that may be more suited to the particular circumstances than levying of execution and other processes by which the whole sum is sought to be recouped at once : Davidson v Greedy [2012] VSC 202; w hile an instalment order obviously mitigates the severity of the situation in which the judgment debtor is placed , that is not the real issue. The principal concern being whether an instalment arrangement will be more conducive to the judgment creditor ’ s achieving payment in full in a reasonable time ; t he issue is thus whether indulgence to the judgment debtor will enhance the prospects of full recovery by the judgment creditor ; a relevant factor being the ability of the judgment debtor to pay, not only from its own internal resources but also from external sources, particularly related companies on which it might reasonably be expected to draw and which might reasonably be expected to provide financial assistance to it : Australian Institute of Fitness at [29]; and “ There is a real public interest in enabling parties who have litigated their disputes to enforce the victory that they have achieved. That public interest arises, at least in part, because the system of adjudication through courts depends firstly on acceptance of the outcome (if necessary, after exhausting all available avenues of appeal) and, secondly, the ability to enforce the outcome. If the process of adjudication is to survive, so that people do not resort to self-help, the courts should be slow to interfere in the normal processes of enforcement ” : Hellier Capital at [19]. In this case , it may thus not be overlooked that East End has made the forensic decision not to pursue the stay of the adjudication certificate which Nixon J ordered . Nor has it sought a stay of the judgment which TQM obtained as a result of that decision. Instead , it has exercis ed its rights under s 32 of the SOP Act in the second Technology List proceedings , which it commenced in May 2026, to pursue its contractual claims . It thus remains bound by the judgment which TQM is entitled to enforce, as it accepts. Th e statutory regime which resulted in that judgment being entered was e x pl a ined in Probuild at [ 36 ]-[ 47 ]: t he SOP Act having been e nacted to reform payment behaviour in the construction industry by seeking to ensure that a person who undertakes to carry out construction work under a construction contract is entitled to receive, and is able to recover, progress payments promptly in relation to the carrying out of that wo rk; i n particular , to “ stamp out the practice of developers and contractors delaying payment to subcontractors and suppliers ” ; w hich it achieves by setting up a scheme, including a “ unique form of adjudication of disputes over the amount due for payment ” which is “ coherent, expeditious and self-contained ” . The intended result being that “ each party knows precisely where they stand at any point of time ” ; t he Act not being concerned with finally and conclusively determining the entitlements of parties to a construction contract. Section 8 confer ring an entitlement to a progress payment, which may be the final payment, a single or one-off payment or what is described as a “ milestone payment ” ; P art 3 creat es a distinct procedure for enforcing that statutory entitlement, which includes the making of a payment claim, the provision of a payment schedule in response and the determination of a payment claim by an adjudicator , at the option of the claimant ; t he statutory entitlement to a progress payment and the procedure for recovery of a progress payment being separate from, and in addition to, a contractor ’ s entitlement under the construction contract in respect of payment for completed work; t he statutory entitlement and the means available for its enforcement stand ing apart from the parties ’ rights under that contract , despite any contractual provision to the contrary ; t he Act also preserving the parties ’ contractual entitlements: s 32; t here are brutally fast time limits imposed on the claimant, the respondent, and the adjudicator to ensure the prompt resolution of payment disputes, which are not conducive to lengthy consideration by an adjudicator of detailed submissions on all questions of law; a n adjudicator ’ s determination is not subject to judicial review for non-jurisdictional error of law and t here is no right of appeal from the determination of an adjudicator ; i f the respondent commences proceedings to have the judgment set aside, the respondent is not entitled to bring any cross-claim against the claimant, to raise any defence in relation to matters arising under the construction contract or to challenge the adjudicator ’ s determination . In addition, the respondent must pay into court as security the unpaid portion of the adjudicated amount pending the final determination of those proceedings : s 25(4)(b); and a determination does not give rise to any issue estoppel for the purposes of civil proceedings arising under a construction contract : ss 3(4) and 32 . The ability of a party to enforce contractual rights, including where an adjudicator has erred in determining the amount of a progress payment, is undiminished. In Alliance Living Pty Ltd v Arch-System Fabrication Pty Ltd [2026] NSWCA 157 , it was thus held that s 32(2) of the SOP Act makes it clear that the merits of any claim under a construction contract are unaffected by an adjudication determination , or the obtaining of a judgment under Pt 3 of that Act: at [36] . T he purpose of s 32 not being to regulate the actual conduct of resulting civil proceedings. But t he significance of a judgment obtained in accordance with the SOP Act may not be undermined in such proceedings , that being the mechanism by which that Act ultimately achieves its purpose: at [36]. That, it seems to me is an impediment to the case East End advanced being accepted . The creation of a judgment debt by the registration of an adjudication certificate does not affect civil proceedings that arise under the parties ’ contract. But non-payment of the judgment debt may have an impact in later civil proceedings: at [37]. In Alliance , because it provided the basis on which security for costs was ordered in the civil proceedings , the judgment debt also not having been paid . The whole point of s 25 being to create a legal obligation to make the payment which is equivalent to a judgment debt obtained as a consequence of a hearing before a court : at [39] . That it is a judgment which enforces an adjudication determination under the SOP Act, in respect of which the instalment application is made , must have the result that the case East End pursues in relation to the parties ’ contract and the payments TQM has received , is not relevant to the resolution of the disputed instalment application . Given TQM ’ s right to enforce the judgment by which the parties remain bound , until set aside by order of the Court. The result is further that the case and the evidence by which East End pursues its contractual claims i n the second Technology List proceedings in accordance with s 32 of the SOP Act , are not relevant to the resolution of what is in issue about the instalment application . Unless and until th e judgment by which the parties are bound is set aside as the result of what East End pursues in the second Tech n ology List proceedings, it remains binding and enforceable. The parties ’ prospects in the other proceedings can thus have no impact on the enforcement of the judgment in the meantime. En tertaining the case which East End seeks to establish in those other proceedings also gives rise to the undesirable possibility of different conclusions being arrived at about the same issue in the two proceedings. It also leaves open the result that despite orders being made in these proceedings on the basis on which East End intends to pursue the second Technology List proceedings, it m a y never establish its claim in those proceedings . TQM thus met East End ’ s case by contending that the evidence it sought to rely on to advance what it claims in the second proceedings , by disputing its relevance, rather than leading evidence to meet it. In my view , that was the appro pri ate course. East End no t seeking in these proceedings to have the judgment TQM is entitled to enforce set aside, but only seeking an order for its payment by instalment . The onus falling on it to establish a just basis for making th e proposed order , premised as it undoubtedly i s on its acceptance that the judgment binds it. Despite this East End contended that its onus was satisfied by the unusual circumstances which arose to be considered on the contemporaneous documents on which it relied . E ach case having to be decided on its own circumstances and no other authorities having had to consider circumstances such as those which here arise. It essentially claiming that the evidence it advanced established that TQM had already received what the judgment required it be paid again. East End , in reality, having no contractual debt at all to TQM, as it was seeking to establish in the second Technology List proceedings , despite what TQM had there pleaded . It was Mr Nielsen ’ s affidavit which explained that the judgment debt was comprised of $5,512,105.56 principal, plus GST and interest, that reflecting the March 2026 adjudication . W hen the adjudicator concluded that what East End had advanced in those proceedings to resist TQM ’ s claim was not within jurisdiction , given the separate loan agreement with another company not party to the proceedings, under which the payments relied on were made . It is also not a party to the proceedings East End pursues in this Court . Mr Nielsen ’ s affidavit also explained payments which had been made between September 2023 and August 2024 into a nominated account , on behalf o f East End . They totalling only some $4,629,628 and seemingly also not having been relevant to what the adjudicator had to consider and thus not before the adjudicator. That the se documents established what East End claimed was not accepted by TQM . W hich also resisted the production, in these proceedings , of the financial records which East End expected would establish that it had received what it was owed under their contract . Given what the se proceedings are concerned with , I am not satisfied that East End is entitled , as it seeks to do, to establish the case it pursues in the second Technology List proceedings . B ound as it remains by the j udgment which TQM is undoubtedly entitled to enforce, as East End ’ s own application accepts. The relief it purs ues only in the second Technology List proceedings, which are defended , being: “1 A declaration that the total amount paid to the Defendant for works performed under the Contract is at least $51,496,374.54 (excluding GST). 2 Damages. 3 Restitution for amounts paid to date by East End to TQM. 4 Costs. 5 Such further or other orders as appropriate. 6 A final injunction restraining the Defendant, by itself, its servants, and agents, from taking any step to enforce the Adjudication Determination or any judgment entered in reliance upon it.” It follows that the orders sought in relation to the disputed documents must be refused . What the evidence does and does not establish about East End’s means The evidence establishes that East End is far from impecunious. There is no suggestion that paying the judgment debt would put it into a position where it would be trading insolvently . O r that it would no longer have the support of the other members of the Iris group of companies of which it is a member . Although I note that who they are , was not disclosed . In Mr Hawkins ’ 6 August affidavit he deposed to East End having assets of $50,069,401 and total liabilities of $29,237,567. Comprising $19,715,169 real estate which it was statutorily barred from selling because of TQM ’ s failure to obtain insurance required by s 92 of the Home Building Act 1989 (NSW). It is pursuing damages in the second Technology L ist proceedings for this claimed failure . It was his evidence that the proposed monthly instalments reflected what East End could realistically recover from its debtors, it having over $26 million in loans to unidentified associates. The basis of t his opinion was also not disclosed . H e also said that East End had only $100 held in bank and other accounts. In Mr Hawkins ’ 6 August affid av it , he also deposed to East End having real estate assets with a value of $19,715,16 9; as well as a strata bond schem e with a value of $2,500,997 , which could not be accessed , that being a statutory requirement under s 207 of the Strata Schemes Management Act 2015 (NSW); as well as an unidentified amount of receivables owed by debtors. In Mr Nielsen ’ s affidavit , he deposed that Mr Hawkins had instructed him that the net position of receivables and payables was by 17 August only $9,579,572 , and that their payment was not possible from available sources of cash within Iris Cap i tal. But this affidavit shed no light on what had resulted in this considerable change, nor the basis of M r Hawkins ’ then opinion. With the result, TQM contended, that the evidence on which it relied provided no proper basis for the instalment order which it sought. East End has not met its onus Th at, I am satisfied, must be accepted . The evidence not establish ing a just basis for the orders East End sought , it not having reliably establish ed East End ’ s fin an cial position , or even its capacity to make the proposed payments, despite its assets. Which also do not support the making of the order sought . East End contended that the instalment order would not adversely affect TQM, given the funds o f at least $6 million it had already received, which t he adjudicator had not taken into account . East End ’ s obligation having been met by a third party: Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2022] NSWSC 1258 . There it having been held at [30] that “ [i] t is beyond doubt that an obligation to advance money under a loan agreement can be vicariously performed and, absent some contrary provision in the loan agreement, vicarious performance by the lender will be authorised. ” That weighing in favour o f the instalment order being made and displacing the usual position that a successful party in commercial litigation is entitled to enforce judgment in the usual way. That also no t cutting across the SOP Act scheme, East End not seeking to have the adjudicator ’ s determination set aside; the Act ’ s policy of cashflow having already been achieved ; the adjudicator not having had jurisdiction to resolve what was in issue about the payments East End claimed TQM had already received ; and the parties ’ commercial position justifying the order sought. The instalments resulting in satisfaction of the judgment debt within 18 months and the evidence establishing East End could comp ly with them . The order thus according with the justice of the case. There is no question that on the evidence East End led, i ts assets are more than sufficient to permit it to pay the judgment deb t, which does not support its application. It claims it still does not have the means to pay that debt, given the constraints Mr Hawkins explained . B ut the evidence it relies on does not sufficiently reveal its financial circumstances , for this to be accepted . Even i f it were, it would necessarily follow that East End has not established that it has the means to make the proposed monthly payments. None of the evidence addressing or establishing this . Mr Hawkin s ’ unsupported op i nion s, which did not address this question , not being a reliable basis for firm conclusions to be reached about that issue . In the result, it must be accepted that East End did not satisfy the onus which fell upon it. Costs The usual order under the Rules is that costs follow the event : Uniform Civil Procedure Rules 2005 (NSW), r 42.1 . In this case , that is an order in favour of TQM. Unless the parties ’ approach with short written submissions within 14 days, that will be the Court ’ s order. Orders Otherwise , for the reasons given , I order that East End ’ s motions be dismissed and that production of the disputed documents not be required . I finally note that given the evidence led and the cases advanced, it seems to me that the parties ought to be capable of resolving what is really in issue between them. The obligations imposed by s 56 o f the CP Act continuing to bind them in the second Technology List proceedings. I will thus refer this judgment to Peden J, with the suggestion that consideration be given to referring the parties to those proceedings for mediation. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 28 August 2026