Cahill v Kiversun Pty Ltd - [2017] VSC 628

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2016 01231

BETWEEN

PETER JOSEPH CAHILL	Plaintiff
v
KIVERSUN PTY LTD	Defendant

S ECI 2016 01256

AND BETWEEN

MOLONGLO GROUP (AUSTRALIA) PTY LTD	Plaintiff
v
PETER JOSEPH CAHILL AND OTHERS (according to the attached schedule)	Defendants

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2017 and 12 September 2017
DATE OF JUDGMENT:	12 October 2017
CASE MAY BE CITED AS:	Cahill v Kiversun Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 628

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PRACTICE AND PROCEDURE – Subpoena – Objection to inspection of documents by reason they are protected by client legal privilege – Whether inspection should be permitted by reason that subject documents ‘affect a right of a person’ within the meaning of s 121(3) of the Evidence Act 2008 (Vic).

PRACTICE AND PROCEDURE – Discovery – Documents – Application for further discovery of communications between solicitor and clients after contract is alleged to have been concluded – applicant contended post contractual conduct was relevant in determining whether contract existed and whether terms should be implied into contract – Application refused.

PRACTICE AND PROCEDURE – Discovery – Documents – party had pleaded that he ‘was ready willing and able to perform agreement’ – Application for discovery of all documents relevant to party’s ability to perform obligations under agreement – Party’s ability to perform obligations under the alleged sale agreement was a real issue in dispute and documents sought were discoverable.

In proceeding S ECI 2016 01231

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Rodbard-Bean	Aitken Partners
For the Defendant	Mr S T Pitt	Mills Oakley

In proceeding S ECI 2016 01256

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms T Spencer Bruce	King & Wood Mallesons
For the Defendant	Mr A Rodbard-Bean	Aitken Partners

HIS HONOUR:

The plaintiff in proceeding number S ECI 2016 01231, Peter Joseph Cahill (‘Mr Cahill’), seeks an order for specific performance of an alleged sale agreement dated 15 July 2016 by which he claims to have a proprietary interest in a property at Rokeby Street, Collingwood. That agreement is referred to in the pleadings as the ‘Cahill Sale Agreement’ and I shall adopt that term in these reasons. The defendant in that proceeding, Kiversun Pty Ltd (‘Kiversun’), the vendor of the Rokeby Street property, denies that any binding contract was made for the sale of the Rokeby Street property with Mr Cahill and maintains that an enforceable agreement was reached with Molonglo Pty Ltd (‘Molonglo’).

In essence Mr Cahill contends that Kiversun and Molonglo are attempting to ‘gazump’ the Cahill Sale Agreement which he contends was binding on the parties and entered into before the Molonglo contract.

In the proceeding in which Molonglo is plaintiff, number S ECI 2016 01256, Molonglo seeks removal of a caveat placed on the Rokeby Street property by Mr Cahill by reason that Mr Cahill has no caveatable interest. Mr Cahill resists the removal of his caveat and counterclaims for…

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: [2017] VSC 628
Decision Date: 12 October 2017

CaseChat Overview and Summary

In the case of Cahill v Kiversun Pty Ltd, the court was faced with several issues pertaining to the discovery of documents and the inspection of documents protected by client legal privilege. The primary dispute involved whether certain documents should be made available for inspection despite being protected by privilege, and whether additional documents should be disclosed in the context of a contract and post-contractual communications. The dispute was heard in the Supreme Court of Victoria.

The legal issues before the court were centered around the interpretation of the Evidence Act 2008 (Vic) in relation to client legal privilege and the discovery of documents relevant to a contractual dispute. Specifically, the court had to determine if the subject documents affected a right of a person within the meaning of section 121(3) of the Evidence Act 2008 (Vic). Additionally, the court needed to decide if further discovery of communications between the solicitor and clients, post the alleged conclusion of the contract, was necessary to determine the existence of the contract and any terms that should be implied into it.

In addressing these issues, the court held that the subject documents did not affect a right of a person within the meaning of section 121(3) of the Evidence Act 2008 (Vic), and therefore, the objection to the inspection of these documents on the basis of privilege was upheld. Regarding the application for further discovery of post-contractual communications, the court found that such communications were not relevant to the determination of the existence of the contract or the implication of terms into it. Consequently, the application for further discovery was refused. However, the court did find that the party's ability to perform obligations under the alleged sale agreement was a real issue in dispute, and thus, documents relevant to this ability were discoverable.

The court ultimately denied the application for further discovery of post-contractual communications but granted the discovery of documents relevant to the party’s ability to perform obligations under the agreement.

Orders