Golden Oasis P/L v Lyra P/L

[1993] FCA 22

IN THE FEDERAL COURT OF AUSTRALIA	)	NO. QG 176 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: GOLDEN OASIS PTY. LTD.

Applicant

AND:  LYRA PTY. LTD.

First Respondent

AND :  KINSEY BENNETT & GILL

Second Respondent

AND:  LYRA PTY. LTD.

Cross Claimant

AND :  GOLDEN OASIS PTY. LTD.

Cross Respondent

MINUTES OF ORDERS

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGISTRY

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	1 February, 1993
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

February, 1993.

1.        Macquarie Bank Limited ACN 008 583 542

( "Macquarie"), by a proper officer and after proper

inquiry, list all documents falling within the description in paragraph 2 of this order and file and serve on the first respondent such list verified on oath on or before 8 February, 1993, or, in the alternative, depose to there being no documents which answer that description and file and serve on the first respondent that affidavit on or before 8

2.        The documents referred to in paragraph 1 are: all approvals or copies of approvals of finance by Macquarie relating to transactions:

(a)	which were approvals given on applications by private investors;
(b)	in respect of which the Foreign Investment Review Board or the relevant legislation required the applicant to obtain the approval of the Foreign Investment Review Board to enter into or complete the transaction in question (whether by reason of the application or by reason of any related purchase);
(c)	which involved applications for finance for assistance in the financing of the purchase of income producing real properties;
(d)	which involved applications for finance for an amount between $25,000,000.00 and $40,000,000.00;
(e)	which were transactions in which the amount of finance sought comprised 60% to 90% of the purchase price or value of the property; and
(f)	which involved applications for finance made in the period between 20 November, 1989 and 20 November, 1991.
(a)	Within seven (7) days of serving the verified list on the first respondent, Macquarie give inspection to the solicitor for the first respondent of such listed documents as that solicitor requests and provide copies of such of those listed documents as that solicitor

requires following inspection.

(b)

In complying with this order Macquarie may cover over or otherwise obliterate the names of the applicants for finance and of other persons (other than officers of the Bank) mentioned in the documents.

(c)

Neither copies of nor information concerning the contents of those documents is to be disclosed by the solicitor for the first respondent to any persons other than counsel for the first respondent, the assistants to the solicitor for the first respondent and not more than two persons from whom that solicitor may seek advice and/or a report in connection with the conduct of or for the purpose of use or possible use in these proceedings.

Prior to the solicitor for the first respondent

(d)	disclosing any of those documents or any information therein contained to any such person retained to advise and/or report to that solicitor, that solicitor shall give the solicitors for Macquarie four days' written notice identifying each such person prior to making disclosure to that person.
(e)	No person mentioned in sub-paragraphs (c) and (d) acting for or engaged on behalf of the first respondent shall disclose to any person any documents or information contained therein that has been disclosed to him/her without the prior leave of the court.

4.        The first respondent shall pay Macquarie's costs of and incidental to this application to be taxed on a party and party basis and its reasonable expenses of complying with the order for inspection of documents and provision of copies of documents, to be taxed on a solicitor/client basis.

5.        Macquarie have liberty to apply on one day's notice to the first respondent.

1. The first respondent's costs of and incidental to this application as between the applicant and the first respondent, including the costs of Macquarie, be costs in the proceedings.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 176 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: GOLDEN OASIS PTY. LTD.

Applicant

AND:  LYRA PTY. LTD.

First Respondent

AND :  PINSEY BENNETT & GILL

Second Respondent

AND :  LYRA PTY. LTD.

Cross Claimant

AND:  GOLDEN OASIS PTY. LTD.

Cross Respondent

Coram:  Drummond J

Place: Brisbane

Date:  1 February, 1993

EX TEMPORE REASONS FOR JUDGMENT

The first respondent in the action applies for an of its solicitors copies of applications for and approvals of	order that Macquarie Bank Limited produce for the inspection
finance relating to transactions in the range of $10,000,000.00 to $40,000,000.00 over the period of three years up to 20 November, 1991.
The application is brought pursuant to 0. 15A, r. 8 of the Federal Court Rules which empowers the court, on the application of a party to proceedings such as the present applicant - the first respondent - to order that a person such as Macquarie Bank, who is not a party and in respect of whom it appears that it has or is likely to have or has had or is likely to have had in its possession any document which relates to any question in the proceeding, to make discovery to the applicant for the present relief of that document.
It appears from the statement of claim in the proceedings that the applicant in the action, Golden Oasis Pty. Ltd., entered into a contract to purchase a shopping centre for a price of almost $47,500,000.00 with Lyra Pty. Ltd., the first respondent in the action, and the present applicant. Golden Oasis paid to the second respondent in the action (as stakeholder) nearly $2,400,000.00 by way of deposit and part-payment. The action is brought to recover these deposit moneys.
Clause 39.1 of the contract made the contract subject to Golden Oasis obtaining from Macquarie Bank within
more than the sum of $33,200,000.00 (later varied to 30 days from a specified date "approval of a loan not being
$35,000,000.00) on the security of a registered first mortgage over the land and otherwise upon and subject to the terms and conditions currently being imposed by Macquarie Bank Limited in respect of loans of a similar nature . . .". The contract clause went on to confer on Golden Oasis the right to terminate the contract and to recover its deposit if it "does not obtain such approval for any reason not being attributable to its own default or failure to do everything reasonably required of it to obtain such approval ...".
Golden Oasis alleges in its pleading that it did not obtain the requisite loan approval from Macquarie Bank and, accordingly, claims a refund of the deposit moneys. The vendor, the present applicant, in its defence, alleges that Golden Oasis did obtain the requisite approval and, by way of particulars, refers to a letter dated 20 November, 1991 from Macquarie Bank to Golden Oasis approving a $35,000,000.00 loan facility on certain terms and conditions. In its reply to this defence, Golden Oasis alleges it never received any approval within the meaning of clause 39.1 or, alternatively, if the Bank's letter to it of 20 November, 1991 did constitute an approval within the clause, then it was not an approval upon and subject to the terms and conditions then currently imposed by the Bank in respect of loans of a similar nature.
On 28 July, 1992, I gave judgment on an application me, brought by Golden Oasis for access to certain Macquarie framed in similar, but not identical terms to that now before
Bank documents. The order I made required Macquarie Bank to give discovery of a range of documents identified by certain criteria numbered (a) to (f) in the third order that I then made.
The present applicant, Lyra, relies essentially on much the same material that was relied upon by Golden Oasis. There is no significantly different evidence put before me by Lyra to justify the rather wider order it seeks against Macquarie Bank on its notice of motion. It seems to me that there is no good reason for adopting any different approach from that which I spelt out at some length in the reasons I gave for granting limited relief to Golden Oasis in the judgment I pronounced on 28 July, 1992, subject to one qualification. The present applicant has not sought to put any evidence before me which would provide a foundation for demonstrating that less restrictive criteria should be imposed at its behest as conditions of an order that Macquarie Bank give discovery of documents of a kind sought in the notice of motion. I am, however, satisfied, as a result of argument, that I should make a slightly more expansive order in that while I propose to make an order in terms of the third order I made on the application of Golden Oasis on 28 July last, I propose to vary that order slightly by substituting for paragraph 3(c) of that particular order the following:

assistance in the financing of the purchase of	"which involved applications for finance for
income producing real properties."

I certify that this and the preceding

three pages is a true copy of the
reasons for judgment herein of the

Honourable Mr. Justice Drummond.

Associate: p8vw Date: 1 February, 1993