Bond University v Limgold Pty Ltd - [1996] QSC 209

IN THE SUPREME COURT

OF QUEENSLAND
Writ No. 1824 of 1995

Brisbane

Before Mr Justice B. W Ambrose J.

[Bond University v. Limgold Pty Ltd & Ors]

BETWEEN:
BOND UNIVERSITY LIMITED

Plaintiff

AND:
LIMGOLD PTY LTD and NISTA PTY LTD
First Defendants

AND:
THE LONG TERM CREDIT BANK OF JAPAN LIMITED
Second Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered: 25/10/1996

CATCHWORDS: O. 40 r. 38C RULES OF THE SUPREME COURT - Application to set aside writ of non-party discovery - whether offer to contract relevant for the purpose of valuation where no contract entered into - extent to which tender documents are relevant for the purposes of valuation

Counsel: P. Morrison Q.C. for the plaintiff/respondent

P. O'Shea for the applicant non-party University of Queensland

J. Sheahan for the applicant non-party Griffith University

Solicitors:Minter Ellison for the plaintiff/respondent
Blake Dawson Waldron for the applicant non-party Griffith University

Hearing Date: 11 October 1996

IN THE SUPREME COURT

OF QUEENSLAND
Writ No. 1824 of 1995

Brisbane

Before Mr Justice B W Ambrose

[Bond University v. Limgold Pty Ltd & Ors]

BETWEEN:
BOND UNIVERSITY LIMITED

Plaintiff

AND:
LIMGOLD PTY LTD and NISTA PTY LTD
First Defendants

AND:
THE LONG TERM CREDIT BANK OF JAPAN LIMITED
Second Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 25/10/1996

These are applications by Griffith University and University of Queensland to set aside writs of third party discovery issued by the plaintiff against them separately on 16 September 1996.
           The pleadings in the matter are voluminous and complicated. The latest amended statement of claim delivered 27 September 1996 extends over 57 pages and the latest defence and counterclaim placed before me delivered on 12 July 1996 extends over 44 pages. One of the many issues between the plaintiff and the defendants is whether moneys allegedly expended by the plaintiff on Bond University Campus increased the value of that campus.
           Late in 1995 the second defendant appointed receivers and managers to the assets of the first defendant which included Bond University Campus land and improvements. Those receivers and managers offered the campus lands and improvements by sale by public tender.
           Both applicant third parties submitted tenders for the purchase of the campus land and improvements. Ultimately the tender submitted by University of Queensland was accepted.          Needless to say the tender submitted by Griffith University was not accepted.
           One of the many matters in issue between the plaintiff and the defendants is whether the plaintiff by reason of its alleged expenditure of money in improving Bond University Campus increased the value of that campus at material times.
           One of the issues which the plaintiff seeks to pursue is whether it has an equitable interest in Bond University Campus to the extent that the value of that campus was increased by virtue of the improvements which it effected to it.
           The plaintiff has provided the defendants with particulars of moneys allegedly expended on effecting improvements on campus. These particulars indicate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] QSC 209
Decision Date: 25 October 1996

CaseChat Overview and Summary

Bond University Limited filed a suit against Limgold Pty Ltd, Nista Pty Ltd, and The Long Term Credit Bank of Japan Limited, with the core dispute being whether the expenditure by Bond University on improvements to its campus increased the value of the campus. The case involved complex pleadings, with the plaintiff seeking to establish if it had an equitable interest in the campus due to the improvements it made. The defendants argued that any expenditure by the plaintiff did not significantly increase the value of the campus. The plaintiff sought discovery from non-parties, Griffith University and University of Queensland, who had made tenders for the campus, to obtain documents related to valuations and the tender process. The applicants argued that the writs should be set aside, claiming the documents sought were not relevant to the issues between the parties and could reveal commercially confidential information.

The legal issues before the court were whether the documents sought in the writs of non-party discovery were relevant to the matters in question and if the applications to set aside the writs were justified. The court considered the relevance of the documents under the Rules of the Supreme Court, specifically Rule 40 r. 38A, which allows a party to require a non-party to produce documents relating to the matter in question and in their possession. The court also examined the necessity of the documents for the due conduct of the litigation and the potential for abuse of process if the plaintiff sought information from non-parties instead of the defendants. The applicants argued that the writs should not be issued until all inter-party discovery steps were taken and that the documents sought were not necessary for the litigation.

The court found that the documents sought were relevant to the valuation issue, as they could potentially inform the valuation exercise being undertaken by the plaintiff. The court rejected the argument that only documents directly relevant to an allegation in issue should be considered, stating that documents that might enable a party to advance their case or damage the opposing party's case were also relevant. The court also determined that the applications to set aside the writs were not justified, as the documents sought could be relevant to the valuation issue and the plaintiff had not abused the process by seeking information from non-parties. The court ordered that the writs should not be set aside but modified the specifications in the writs to ensure that only relevant documents were produced.

Orders