GLIDDON PROPERTIES PTY LTD -v- NP PROPERTIES PTY LTD & ORS [2006] WASC 64

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 64
Case No:	CIV:2294/2005	Heard:	3 APRIL 2006
Coram:	MASTER NEWNES	Delivered:	13/04/06
No of pages:	9	Judgment Part:	1 of 1
Result:	Order for preaction discovery
Category:	B
PDF Version

Parties:	GLIDDON PROPERTIES PTY LTD (ACN 073 690 552) NP PROPERTIES PTY LTD (ACN 115 078 995) NEVILLE JOHN CROKE N J CROKE PTY LTD (ACN 080 457 996)
Catchwords:	Practice and procedure Application for pre-action discovery O 26A r 4 Whether plaintiff may have cause of action against the defendants Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 436A Rules of the Supreme Court 1971 (WA), O 26A r 4
Case References:	McCarthy v Dolpag Pty Ltd [2000] WASCA 106 Cohen v Walthamstow Pty Ltd, unreported; SCt of WA; Library No 980148; 30 March 1998 Ronald Charles Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GLIDDON PROPERTIES PTY LTD -v- NP PROPERTIES PTY LTD & ORS [2006] WASC 64 CORAM : MASTER NEWNES HEARD : 3 APRIL 2006 DELIVERED : 13 APRIL 2006 FILE NO/S : CIV 2294 of 2005 BETWEEN : GLIDDON PROPERTIES PTY LTD (ACN 073 690 552)

Plaintiff

AND

NP PROPERTIES PTY LTD (ACN 115 078 995)

First Defendant

NEVILLE JOHN CROKE

Second Defendant

N J CROKE PTY LTD (ACN 080 457 996)

Third Defendant

Catchwords:

Practice and procedure - Application for pre-action discovery - O 26A r 4 - Whether plaintiff may have cause of action against the defendants - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 436A

Rules of the Supreme Court 1971 (WA), O 26A r 4

(Page 2)

Result:

Order for preaction discovery

Category: B

Representation:

Counsel:

Plaintiff : Mr T H Brickhill

First Defendant : Mr M A Atkinson

Second Defendant : Mr M A Atkinson

Third Defendant : Mr M A Atkinson

Solicitors:

Plaintiff : Brickhills

First Defendant : Atkinson & Partners

Second Defendant : Atkinson & Partners

Third Defendant : Atkinson & Partners

Case(s) referred to in judgment(s):

McCarthy v Dolpag Pty Ltd [2000] WASCA 106

Case(s) also cited:

Cohen v Walthamstow Pty Ltd, unreported; SCt of WA; Library No 980148; 30 March 1998
Ronald Charles Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998

(Page 3)

1 MASTER NEWNES: This is an application by the plaintiff for pre-action discovery under O 26A r 4 to obtain information to enable the plaintiff to make a decision whether or not to commence proceedings against the defendants.

2 The plaintiff, in its capacity as trustee of the Gliddon Investment Trust, and NJ Croke Pty Ltd, in its capacity as trustee for the Croke Family Trust, previously carried on, in partnership, the business of "WA Road Projects". The partnership business involved the provision of traffic management services…

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: [2006] WASC 64
Decision Date

CaseChat Overview and Summary

Gliddon Properties Pty Ltd brought an application for pre-action discovery against NP Properties Pty Ltd, Neville John Croken, and J Croke Pty Ltd. The plaintiff sought documents to determine whether it had a cause of action against the defendants. The defendants argued that the plaintiff had not established reasonable grounds to believe it may have a cause of action against them and that the documents sought were too wide. The court held that there was sufficient evidence to establish that the plaintiff may have a cause of action against the defendants for breach of a restraint covenant. The court limited the categories of documents sought by the plaintiff to those in the possession, custody, or power of the defendants as trustees and those related to Mr. Croken, NJ Croke, or any entity in which they have an interest. The court ordered the defendants to provide the limited documents sought by the plaintiff.

The final orders of the court are yet to be determined. The court will hear the parties on the precise form of orders and on costs.

Orders