CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 5) - [2025] ACTSC 137

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 5)
Citation:	[2025] ACTSC 137
Hearing Date:	10 February 2025
Decision Date:	7 April 2025
Before:	McWilliam J
Decision:	Application to set aside subpoenas dismissed. Orders made preventing access to subpoenaed documents until evidence in chief has been filed.
Catchwords:	PRACTICE & PROCEDURE – SUBPOENAS – legitimate forensic purpose – where issue at trial is whether landlord’s refusal to consent to lease transfer is reasonable – where legislation confines material to be used in assessment of reasonableness – where pleadings join issue with landlord’s basis of refusal – legitimate forensic purpose established
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1728, 6604 Leases (Commercial and Retail) Act 2001 (ACT) s 100
Cases Cited:	Alister v The Queen (1984) 154 CLR 404 CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3) [2024] ACTSC 304 CDLC Pty Ltd v Capital Estate Developments Pty Ltd [2023] ACTSC 284 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 DPP v Warren [2015] ACTSC 111 Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Grant v Downs (1976) 135 CLR 674 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 Portal Software v Bodsworth [2005] NSWSC 1115 Re North Coast Transit Pty Ltd [2013] NSWSC 1912 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Trade Practices Commission v Arnotts (1989) 88 ALR 90 Wornes v Freewater Australia Pty Ltd [2022] ACTSC 147
Parties:	CDLC Pty Ltd (ACN 624 214 400) (In Liquidation) ( First Plaintiff) Pouring Pty Ltd (ACN 637 678 310) (Second Plaintiff) Capital Estate Developments Pty Ltd as trustee for Capital Estate Developments Trust (ACN 137 573 632) ( First Defendant) Arthur Choi (Third Party)
Representation:	Counsel R McGilvray ( First and Second Plaintiffs and Third Party) J Nottle ( First Defendant)
Solicitors McGilvray ( Plaintiffs and Third Party) Gadens ( First Defendant)
File Number:	SC 494 of 2022

McWILLIAM J:

1․This proceeding concerns a long-running dispute about two commercial leases in respect of premises located at Denman Prospect shopping precinct, from which the first and second plaintiffs respectively operated a café trading as “Morning Dew”, and a bar and restaurant trading as “Honeysuckle”. The procedural history is set out in CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3) [2024] ACTSC 304 (CDLC (No 3)) at [3]-[19].
2․The original leases held by each plaintiff were terminated by the first defendant in 2022 and interim leases were entered into through a deed of settlement, the intent of which was to enable each of the plaintiffs to sell their respective business with a short-term lease that would then be renegotiated with the new business owner.
3․The interim leases provided for the plaintiffs to request the consent of the…

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: [2025] ACTSC 137
Decision Date: 7 April 2025

CaseChat Overview and Summary

The case between CDLC Pty Ltd and Capital Estate Developments Pty Ltd was heard before the court, addressing issues surrounding the enforcement and scope of subpoenas in the context of a property lease dispute. The dispute centred on whether the landlord's refusal to consent to a lease transfer was reasonable, with the court tasked to determine if the subpoenas issued were justified for the purpose of establishing this fact.

The central legal issue the court had to decide was whether the subpoenas issued by CDLC were within the scope of a legitimate forensic purpose. This was particularly relevant given that the legislation in question limited the material that could be used to assess the reasonableness of the landlord's refusal. The pleadings in the case had already identified the basis upon which the landlord's refusal was made, necessitating the court to balance the need for thorough investigation against the statutory constraints on the use of certain information.

The court found that the subpoenas were issued for a legitimate forensic purpose because the basis of the landlord's refusal was already in issue and the subpoenas sought to further elucidate this point. The court ruled that the subpoenas were valid and dismissed the application to set them aside. However, to safeguard against premature disclosure of sensitive information, the court also made orders preventing access to the subpoenaed documents until the completion of the evidence in chief phase. This ensured that the sensitive material was not improperly disclosed while still allowing the necessary investigation to proceed within the legal constraints.

Orders

Orders of the court

Application to set aside subpoenas dismissed. Orders made preventing access to subpoenaed documents until evidence in chief has been filed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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