Agk Management Pty Ltd v Merringtons Pty Ltd

[2009] VCC 166

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-08-01540

AGK Management Pty Ltd	Plaintiff
v.
Merringtons Pty Ltd & Ors	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2009
DATE OF JUDGMENT:	6 March 2009
CASE MAY BE CITED AS:	AGK Management Pty Ltd v. Merringtons Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0166

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Further discovery – Fishing exercise –
application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F. Forsyth	GPZ Legal
For the Defendant	Mr M.P. Pirrie	Frenkel Partners
HIS HONOUR:

1

The plaintiff by summons dated 27 February 2009 seeks further and better discovery from commenced by writ on 18 April 2008, essentially states that the plaintiff seeks to recover the cost of providing bulk direct mailing services to a business which apparently traded under the name “Merringtons”.

2        The plaintiff has pleaded in the statement of claim general terms of agreement with a company, Australian Ophthalmic Supplier Pty Ltd (“AOS”) , signed on 21 August 2007. That company is now in liquidation and the plaintiff seeks to recover from an associated company and two individuals, one of whom was the general manager and the other the national administration manager of AOS.

3        The two previous trial dates of 1 December 2008 and 4 February 2009 have been vacated. The matter is currently set down for trial on 16 March 2009. On 1 December 2008, the plaintiff delivered an amended statement of claim which expanded the bases upon which the claims were made against the defendant. The further documents sought by the plaintiff relate to the business relationship between AOS and the first defendant.

4        In my view the material does not establish that there is a proper basis for the defendants to provide further discovery. There is a large quantity of documents which is now under the control of the liquidator of AOS. Those documents are apparently so extensive that they have been left in the physical control of the first defendant.

5        Specific categories of documents have been subpoenaed by the plaintiff from the liquidator. At one stage it was anticipated that the documents subpoenaed might be brought to court if arrangements could not be made for the documents to be inspected. Apparently there is no difficulty from the liquidator in either party inspecting the documents.

6        The dispute arises because there are so many documents that the plaintiff is unwilling to perform the task of inspecting the documents without some assistance from the defendants in terms of indicating where it might find the particular categories of documents it has listed in the schedule attached to the summons.

7        I have decided that the plaintiff’s application should be dismissed. Upon examination of the statement of claim, the essential allegations made against the defendants are bereft of proper particulars, particularly the allegation of agency made with respect to AOS and the allegations that at relevant times the named individuals had made representations concerning that agency .

8        It seems to me that the primary obligation is on the plaintiff to carry out the necessary investigative work if it wishes to make a claim against the defendants. It is not a case where the plaintiff has been denied the opportunity to inspect the documents by the liquidator of AOS. The plaintiff should not, however, be allowed to use the processes of discovery to compel the defendants to set out in an affidavit a convenient listing of documents so that it can navigate its way through the store of documents of the liquidated company to try and establish material that might assist it to properly formulate its claim.

9         I make these comments with only a limited understanding of the factual basis of the matters in dispute. I have examined the amended pleading and the affidavit material. It may be that these issues become clearer at trial. I will not at this stage vacate the trial date. The

defendants wish to proceed with the trial. This is an appropriate course of action and it
should not be incumbent upon the defendant to assist the plaintiff to articulate its claim. If the
plaintiff has a claim against the defendants that matter should be decided at the trial on 16
March 2009 (the third trial date requested by the parties).

10      Having determined to dismiss the plaintiff’s summons I am asked to deal with the question of costs. Defendants’ counsel has sought costs on an indemnity basis. I have determined to allow counsel’s brief fee and the defendants’ solicitor’s costs of preparing the answering affidavit, briefing counsel and instructing counsel during the hearing. The plaintiff failed to take any steps to inspect the documents of AOS before launching this application. I propose to fix the costs of the application. The total sum of $2,500 seems to me to be an appropriate figure; $1,100 for the brief fee, $800 for the presence of the solicitor at court and the balance for the necessary preparation costs by the solicitor including the answering affidavit and briefing counsel.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 11 March 2009.

Dated: 11 March 2009.

Julien Lowy

Associate to His Honour Judge Anderson