Harman v Universal Pastoral Co Pty Ltd - [2007] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HARMAN -v- UNIVERSAL PASTORAL CO PTY LTD [2007] WADC 147

CORAM: REGISTRAR KINGSLEY

HEARD: 6 JULY 2007

DELIVERED : 28 AUGUST 2007

FILE NO/S: CIV 1694 of 2006

BETWEEN: JOSSLYN ANTONY HARMAN
Plaintiff
AND
UNIVERSAL PASTORAL CO PTY LTD
Defendant

Catchwords:

Practice - Application for specific discovery

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr P A Kyle
Defendant: Mr P Van Der Zanden

Solicitors:

Plaintiff: Kyle & Company
Defendant: Lavan Legal

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

Nil

REGISTRAR KINGSLEY: The plaintiff's application is for specific discovery. The plaintiff seeks from the defendant all documents, correspondence, file notes, invoices and statements in or formerly in the possession of Hudson Henning and Goodman solicitors who were acting as the solicitors or representatives of the defendant in respect of the sale of land known as Springdale on the south coast at Denmark in or about October 2005.
The plaintiff's application is supported by an affidavit sworn by Peter Arthur Kyle on 13 June 2007. The deponent states that it is apparent from discovered documents that Hudson Henning and Goodman were appointed the representatives of the defendant on settlement of the sale of Springdale. The deponent goes on to say that at some stage Hudson Henning and Goodman ceased to be the defendant's representative and Thompson Legal became the defendant's representative.
The plaintiff pleads that the defendant was the owner of Springdale and by an agreement in writing dated 24 August 2005 the defendant appointed the plaintiff as a real estate agent to sell Springdale. The agreement was for an exclusive period of 180 days. The agreement provided that if, during the exclusive period, a person or company is introduced as a purchaser of Springdale then the defendant would pay 2.5 per cent of the sale price.
The plaintiff pleads that it introduced a company, LWP Denmark Pty Ltd to the defendant and that by an agreement in writing made in or about 31 October 2005 the defendant agreed to sell Springdale to LWP Property Group. The plaintiff pleads that in breach of the agreement the defendant appointed Burton Realty to sell the land. The plaintiff claims by reason of the breach of the agreement, the sum of $357,500 for damages. For the purposes of these reasons I am assuming that the company LWP Denmark Pty Ltd in par 6 of the amended statement of claim is in fact the purchaser referred to as LWP Property Group Pty Ltd referred to in par 7 of the amended statement of claim.
The defendant has not pleaded to the amended statement of claim but in a prior defence and counter‑claim pleads an oral appointment agreement where the plaintiff was appointed on an open or non‑exclusive basis and that the agreed selling fee would be 2 per cent of the sale price. The defendant pleads that in August 2005 a representative of the plaintiff forwarded to the defendant a written listing authority. The defendant pleads that the written authority did not reflect the oral appointment agreement in that it stated that the plaintiff was authorised to act as the defendant's agent on an exclusive basis and that the selling fee was 2.5 per cent of the sale price plus goods and services tax. The defendant pleads that on the proper construction of the written authority the plaintiff was only entitled to a selling fee if the buyer of the land is introduced by the plaintiff and goes on to plead that the written authority was executed by the parties under a common mistake or unilateral mistake.
Subsequent to the execution of the written authority the defendant pleads that there was a representation by the plaintiff in October 2005 to the effect that the plaintiff would send to the defendant a document amending the written authority to an open agency with a selling fee of 2 per cent. The defendant pleads a further representation that in or about 20 October 2005 the plaintiff represented to the defendant in writing that the plaintiff had released the defendant from any exclusive agency and that the defendant would only have to pay the plaintiff a selling fee if a plaintiff introduced a buyer to the land and that the buyer came from the person's listed in the addendum document enclosed with the facsimile.
The defendant admits that LWP Property Group Pty Ltd were introduced to the land before 22 February 2006 and that LWP Property Group Pty Ltd were introduced to the land by Burton Realty.
On the pleadings then, the central issue is the proper construction of the written authority. The issue for the court to determine is whether the plaintiff's version of the written authority is correct or whether on the defendant's plea, the written authority did not reflect an earlier oral appointment agreement and that the agreement ought to be rectified. That being the focus of attention of the court, I am of the opinion, that the documents relating to the sale of the land known as Springdale is not relevant to the pleaded issue.
The plaintiff's application is an application for discovery of particular documents. The affidavit in support of the application must specify the particular documents that are relevant to the issues and the actions. The affidavit of Peter Arthur Kyle sworn 13 June 2007 merely states that it is apparent from a number of documents discovered by the defendant that the firm Hudson Henning and Goodman were appointed representatives of the defendant on settlement of the sale of the defendant's land. As previously stated the issue in this matter is the content and interpretation of the written authority to sell. In my opinion the settlement of the sale of the land is not a relevant issue. Accordingly, the class of documents sought in the schedule to the plaintiff's application have not been demonstrated to be relevant by their character. There is no evidence before me that the documents are relevant by virtue of their content.
The documents specified in the schedule to the plaintiff's application would comprise documents that are not in the possession, custody or power of the defendant but are documents solely in the hands of the firm of solicitors. There has been no attempt by the plaintiff's solicitor to differentiate the documents that are in the defendant's custody, possession or power as opposed to those documents that are owned exclusively by the solicitors Hudson Henning and Goodman. Accordingly, in my opinion, the plaintiff's application has not overcome the initial threshold of specificity as to the type and nature of the documents.
Accordingly, for these reasons I am of the opinion that the plaintiff's application ought to be dismissed.
The plaintiff's chamber summons sought orders in relation to leave to amend the statement of claim and to provide discovery. The question of the statement of claim had earlier been dealt with whereby, subject to two amendments, the plaintiff was given leave to amend the statement of claim. In the usual course the defendant would be entitled to costs on that application. In relation to the application for discovery that application has been dismissed. Accordingly, in my opinion, the appropriate order for costs is that the plaintiff pay, the defendant's costs on the application; such costs to include the defendant's costs thrown away by reason of the amendments to the statement of claim.