PLAINTIFF SEEKS PRE-ISSUE DISCOVERY ORDER AGAINST THE NATIONAL AUSTRALIA BANK
Capstone Financial Planning v NAB Ltd (Ruling) [2020] VCC 1841 (25 November 2020)
This is an application brought by the plaintiff Capstone Financial Planning Pty Ltd, for the defendant, National Australia Bank Ltd (“NAB”), to make pre-issue discovery, pursuant to Rule 32.05 of the County Court Civil Procedure Rules 2018.
Facts:
The plaintiff is a financial planning licencee who provided financial advice to Sonia Shard. In the course of redeeming an investment held by Ms Shard the plaintiff made an error in the paperwork for the transfer. The result was that the redeemed funds, totalling a not insignificant sum of $104,462.46, were electronically transferred to an account held with NAB. The funds were meant to be transferred to an account held in Ms Shard’s name with the Macquarie Bank.
NAB refused to provide relevant details of the account holder who has been the unintended recipient of the incorrectly transferred funds. The plaintiff now seeks orders that reveal the identity of the account holder of NAB account number 120066717 with BSB 083-334, including the account holder’s name, postal address, email address, and mobile phone number. These details are needed to pursue recovery of the funds.
Issue: Sould the court grant the order sought by the plaintiff?
Law:
Analysis:
Clearly there has been a simple error by the plaintiff so as to transfer Ms Shard’s funds to the wrong account. The details of the account holder are not known by the plaintiff. The defendant says it cannot provide the account holder’s details due to privacy constraints and is unable to provide the account details in the absence of a Court order.
An applicant seeking to rely on Rule 32.05(b) is required to show, as an objective fact, that it has not sufficient information for it to decide whether to commence a proceeding to obtain relief. The court is satisfied that the plaintiff lacks sufficient objective facts so as to commence a proceeding for the recovery of the funds. On any view the relevant details of the potential defendant – that is, the person or entity who was the recipient of the funds – will be within the knowledge of NAB.
Conclusion: Court orders that NAB is to make Discovery pursuant to rule 32.05(b) of documents which reveal the identity of the account holder of the NAB account number 120066717 with BSB 083-334, including documents which reveal the account holder’s name, postal address, email address, and mobile phone number.
