Development Ventures Pty Ltd v Bayside Health - [2003] VSC 111

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6276 of 2001

DEVELOPMENT VENTURES PTY LTD	Plaintiff
v
BAYSIDE HEALTH	Defendant
and
FREEHILL, HOLLINGDALE & PAGE (A FIRM)	Third Party

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1-2 APRIL 2003
DATE OF JUDGMENT:	10 APRIL 2003
CASE MAY BE CITED AS:	DEVELOPMENT VENTURES PTY LTD v BAYSIDE HEALTH
MEDIUM NEUTRAL CITATION:	[2003] VSC 111

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Damages – Third party defence to plaintiff's statement of claim amended on first day of hearing – Consequently plaintiff's case not pursued – Defendant had made offer of compromise – Whether plaintiff should pay defendant costs – Whether plaintiff should pay defendant costs on indemnity basis after date of offer of compromise – Whether plaintiff should pay third party costs – Whether third party should pay plaintiff’s costs – Whether third party should indemnify plaintiff for plaintiff’s costs and/or defendant's costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Middleton QC with Mr S.M. Anderson	Rigby Cooke
For the Defendant	Mr M. Dreyfus QC with Mr D. Masel	Mills Oakley
Third Party	Mr G. McEwan	Minter Ellison

HIS HONOUR:

The plaintiff in this matter is a property developer. In May 1997 it entered into a contract with the defendant's predecessor for the purchase of the Chevron Hotel site adjacent to the Alfred Hospital on the corner of Commercial and St. Kilda Roads, Melbourne. The contract was completed on 30 June 1998.

On 14 June 2001 the plaintiff issued proceedings seeking declarations and damages. The central complaints made by it were:

(a)that statements contained in a brochure provided to it in or about February 1997 by the vendor's agents were false and/or misleading ("the brochure representations");
(b)that statements contained in a property report provided to it in March 1997 by the vendor's agents were false and/or misleading ("the report representations"); and
(c)that the statement provided to it pursuant to s.32 of the Sale of Land Act 1962 in April 1997 was false and/or misleading ("the s.32 statement").

The plaintiff's claim is formulated by reference to:

(a)       breaches of warranty;
(b)      negligent misrepresentation; and
(c)       breaches of the Fair Trading Acts 1985 and 1999 and the Trade Practices Act 1974.

The plaintiff's statement of claim alleges that prior to the sale the vendor had sought and received advice from two independent valuers as to the value of the Chevron Hotel site. The instructions to the valuers included the following statement:

"The Alfred Hospital operates a 'trauma unit' and utilises a helipad over Commercial Road on adjoining land. The Civil Aviation Authority has recommended that any future development of the site be restricted to three or four storeys. It is acknowledged that this is purely a recommendation only and is not enforceable through the Civil Aviation Act or any other legislation."

It is alleged both valuers in turn referred to this consideration in providing valuation advice and identified its potential impact as a material consideration (albeit in different terms). One…

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: [2003] VSC 111
Decision Date: 10 April 2003

CaseChat Overview and Summary

The dispute in Development Ventures Pty Ltd v Bayside Health involved a complex web of legal claims, counterclaims and third-party proceedings. The case was heard in the Federal Circuit Court, with the plaintiff, Development Ventures Pty Ltd, suing the defendant, Bayside Health, over issues related to a development project. The plaintiff's claim included allegations of breach of contract and negligence, while the defendant counterclaimed against the plaintiff and initiated third-party proceedings against another entity, which became a significant part of the dispute.

The court had to address several critical legal issues, including the admissibility and consequences of amending the plaintiff's statement of claim on the first day of the hearing, which led to the plaintiff not pursuing their case. Additionally, the court examined whether the defendant was entitled to costs from the plaintiff, particularly on an indemnity basis post the date of the offer of compromise. Another significant issue was the allocation of costs between the defendant, the third party, and the plaintiff, specifically whether the third party should pay the plaintiff's costs, and if the third party should indemnify the plaintiff for both their own and the defendant's costs.

In its decision, the court ruled that the amendment of the statement of claim on the first day of the hearing was permissible but had significant consequences for the plaintiff's case. The court held that the defendant was entitled to costs from the plaintiff, but not on an indemnity basis. Furthermore, the court found that the third party was not liable to pay the plaintiff’s costs or indemnify the plaintiff for the defendant's costs. The reasoning was based on the procedural fairness and the impact of the plaintiff's actions on the overall litigation process.

The final orders of the court directed that the defendant was to recover costs from the plaintiff up to the date of the offer of compromise, but not on an indemnity basis. The third party was not ordered to pay any costs to the plaintiff or indemnify the plaintiff for any costs incurred by the defendant. The court's decision provided clarity on the respective liabilities of the parties involved and the appropriate allocation of costs in complex litigation involving multiple parties.

Orders