whether order for preliminary discovery should be made
no reasonable basis for prospective applicant’s belief in circumstances where investment made consistently with information memorandum provided
Quick Take
1A belief that relief may be available under r 7.23(1)(a) is not reasonably based where the prospective applicant's investment was made consistently with the information memorandum actually provided to and acknowledged by the applicant, even if a separate promotional brochure for a different fund contained different representations, and where there is no evidence linking the prospective respondent to oral misrepresentations made by a third party such as a migration agent.
2The mere interconnectedness of corporate entities and shared officeholders does not, without more, provide a reasonable basis for believing that each entity may be liable; the prospective applicant must identify some rational basis for attributing responsibility for the alleged wrongdoing to each prospective respondent individually.
3Preliminary discovery under r 7.23 does not extend to documents relevant only to a prospective respondent's capacity to satisfy a judgment; documents concerning asset ownership, tax returns and bank statements sought solely to assess recoverability fall outside r 7.23(1)(c)(i).
