Crown International Consortium Pty Ltd v Bruce Lyon - [2008] NSWSC 1334

CITATION: Crown International Consortium Pty Ltd v Bruce Lyon [2008] NSWSC 1334

HEARING DATE(S): 5/12/08

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 5 December 2008

DECISION: See para [32] of the judgment.

CATCHWORDS: PROCEDURE – application for extension of time to serve evidence – less than diligent approach by plaintiff to date – no specific prejudice to defendants – extension granted – additional order that proceedings be dismissed unless evidence served in accordance with orders. - DISCOVERY AND INTERROGATORIES – plaintiff proposes to obtain expert evidence – seeks further discovery – documents sought not logically or reasonably connected to subject matters of expert evidence – application dismissed.

LEGISLATION CITED: Civil Procedure Act 2004

CASES CITED: Phornpisutikul v Mileto {2006] NSWSC 57

PARTIES: Crown International Consortium Pty Ltd (Plaintiff)
Bruce Lyon (Holdings) pty Limited (First Defendant)
Cloudgard (No.240) Pty Limited (Second Defendant)
Bruce Lyon Pty Limited (Third Defendant)

FILE NUMBER(S): SC 50192/07

COUNSEL: I R Pike (Plaintiff)
M A Ashhurst SC (Defendants)

SOLICITORS: Slater & Gordon Lawyers (Plaintiff)
McCabe Terrill Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

5 December 2008 (ex tempore revised 5 December 2008)

50192/07 CROWN INTERNATIONAL CONSORTIUM PTY LTD AND ANOR v BRUCE LYON (HOLDINGS) PTY LTD & 2 ORS

JUDGMENT

1 HIS HONOUR: The plaintiff (Crown) seeks orders:

2 In very brief compass, Crown's claim in these proceedings is founded on a joint venture agreement made between it and Bruce Lyon. The joint venture was for the development of a property at Epping. The third defendant, presumably a licensed real estate agent, was to be the exclusive selling agent of the units to be brought into existence through the execution of the joint venture project.

3 Crown asserts that the third defendant was to be an exclusive agent for three years from 31 March 2004 until 31 March 2007. It says that the exclusive agency came to an end on the latter date and that the third defendant was thereafter (presumably, in default of some other action being taken) no more than a non-exclusive agent for the sale of the units.

4 Up until recently, Bruce Lyon seems to have taken the position that the third defendant's exclusive agency continued after 31 March 2007, presumably until some step was taken thereafter to terminate it. However, on 25 September 2008, Bruce Lyon's current solicitors notified Crown's current solicitors that Bruce Lyon would not oppose a declaration that the agency between Crown and the third defendant ceased to be exclusive on 31 March 2007, and continued as a non-exclusive agency thereafter until terminated.

5 Crown appears to assert that its damages are the loss of the opportunity to effect sales after 31 March 2007 because, through what it says was Bruce Lyon's intransigence, the joint venture was not able to…

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: [2008] NSWSC 1334
Decision Date: 5 December 2008

CaseChat Overview and Summary

Crown International Consortium Pty Ltd brought an action against Bruce Lyon. The nature of the dispute involved an application for an extension of time to serve evidence, as well as requests for further discovery and interrogatories. The Federal Circuit and Family Court of Australia was the court that handled the matter. The plaintiff, Crown International, sought an extension of time to serve evidence, noting that their approach to date had not been entirely diligent. Despite this, there was no specific prejudice to the defendants that would result from granting the extension. The court recognised the plaintiff's less than diligent approach but granted the extension on the condition that the proceedings would be dismissed if the evidence was not served in accordance with the court's orders. Additionally, the plaintiff proposed to obtain expert evidence and sought further discovery, which the court deemed unnecessary as the documents sought were not logically or reasonably connected to the subject matters of the expert evidence. Consequently, the application for further discovery was dismissed.

The court's reasoning focused on the plaintiff's conduct and the potential impact on the defendants. It considered the plaintiff's past behaviour in managing the case, which was less than diligent, and the absence of specific prejudice to the defendants as key factors in granting the extension. The court also emphasised the importance of adhering to the orders given and warned of potential dismissal if the conditions were not met. Regarding the discovery application, the court determined that the documents requested were not pertinent to the expert evidence, leading to the dismissal of that application. The court's outcome balanced the need for procedural fairness with the necessity to maintain efficient and relevant litigation processes.

Orders