HEYTESBURY PROPERTIES PTY LTD -v- CITY OF SUBIACO [1999] WASC 116

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 116
Case No:	CIV:1323/1996	Heard:	28 JULY 1999
Coram:	MASTER SANDERSON	Delivered:	4/08/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed in part
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Parties:	HEYTESBURY PROPERTIES PTY LTD (ACN 008 747 215) CITY OF SUBIACO HEYTESBURY PTY LTD (ACN 008 666 966) PETER JOHN PATRIKEOS JANET LEE HOLMES A COURT (as joint administrators of the Estate of the late MICHAEL ROBERT HAMILTON HOLMES A COURT) JANET LEE HOLMES A COURT
Catchwords:	Practice and procedure Further and better answers to interrogatories Turns on its own facts
Legislation:	Nil
Case References:	Nil Codelfa Construction Pty Ltd v State Rail Authority of NSW [1981-1982] 149 CLR 337 Hall v Truman, Hanbury & Co [1885] 29 Ch D 307 Hoad v Nationwide News Ltd, unreported; SCt of WA (Steytler J); Library No 980375; 11 June 1998 Mulley v Manifold (1959) 103 CLR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HEYTESBURY PROPERTIES PTY LTD -v- CITY OF SUBIACO [1999] WASC 116 CORAM : MASTER SANDERSON HEARD : 28 JULY 1999 DELIVERED : 4 AUGUST 1999 FILE NO/S : CIV 1323 of 1996 BETWEEN : HEYTESBURY PROPERTIES PTY LTD (ACN 008 747 215)

Plaintiff

AND

CITY OF SUBIACO

Defendant

FILE NO/S : CIV 1205 of 1997 BETWEEN : CITY OF SUBIACO

Plaintiff

AND

HEYTESBURY PTY LTD (ACN 008 666 966)

First Defendant

PETER JOHN PATRIKEOS

JANET LEE HOLMES A COURT (as joint administrators of the Estate of the late MICHAEL ROBERT HAMILTON HOLMES A COURT)

Second Defendants

JANET LEE HOLMES A COURT

Third Defendant

(Page 2)

Catchwords:

Practice and procedure - Further and better answers to interrogatories - Turns on its own facts

Legislation:

Nil

Result:

Application allowed in part

Representation:

CIV 1323 of 1996

Counsel:

Plaintiff : Mr S Penglis

Defendant : Mr J L Sher

Solicitors:

Plaintiff : Freehill Hollingdale & Page

Defendant : Corrs Chambers Westgarth

(Page 3)

CIV 1205 of 1997

Counsel:

Plaintiff : Mr J L Sher

First Defendant : Mr S Penglis

Second Defendants : Mr S Penglis

Third Defendant : Mr S Penglis

Solicitors:

Plaintiff : Corrs Chambers Westgarth

First Defendant : Freehill Hollingdale & Page

Second Defendants : Freehill Hollingdale & Page

Third Defendant : Freehill Hollingdale & Page

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

Case(s) also cited:

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1981-1982] 149 CLR 337
Hall v Truman, Hanbury & Co [1885] 29 Ch D 307
Hoad v Nationwide News Ltd, unreported; SCt of WA (Steytler J); Library No 980375; 11 June 1998
Mulley v Manifold (1959) 103 CLR 341

(Page 4)

1 MASTER SANDERSON: This is the plaintiff's chamber summons in action CIV 1323 of 1996 seeking an order that the defendant provides supplementary answers to certain interrogatories. There is an identical summons in action CIV 1205 of 1997 in which the City of Subiaco is the…

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.

Continue reading Heytesbury Properties Pty Ltd v City of Subiaco

Details

AGLC: Heytesbury Properties Pty Ltd v City of Subiaco [1999] WASC 116
Case: [1999] WASC 116
Decision Date

CaseChat Overview and Summary

In the case of Heytesbury Properties Pty Ltd v City of Subiaco, the plaintiff sought further and better answers to interrogatories from the defendant, the City of Subiaco. The plaintiff argued that the answers provided by the defendant were inadequate and required more detailed information to understand the reasoning behind their responses. The primary focus of the dispute was on the leases of certain land in Subiaco, which had been assigned to the plaintiff by Humes Ltd. The plaintiff claimed that the leases had been frustrated due to the terms of a Town Planning Scheme No 2 implemented by the defendant, resulting in the plaintiff's inability to carry out the required activities on the leased property. Consequently, the plaintiff alleged that it was not liable to pay the defendant for unpaid rent and taxes.

The legal issues the court needed to decide were whether the defendant's answers to interrogatories 3.1.2 and 6 were satisfactory and if interrogatory 4 should be answered by the defendant. The court examined the defendant's response to interrogatory 3.1.2, which asked for reasons why a request to vary the leases had been rejected. The court found the defendant's answer inadequate, as it did not provide the material facts relied upon to conclude that it was in the best interests of the defendant to refuse the plaintiff's request. The court ordered the defendant to provide a further and better answer to this interrogatory.

Regarding interrogatory 4, the court found that it was irrelevant and not discoverable, as the leases referred to in the interrogatory had not been discovered. The court agreed with the defendant's submission that compelling the defendant to answer interrogatory 4 would amount to a collateral attack on the decision of the Acting Master refusing discovery.

Lastly, the court considered the defendant's objection to interrogatory 6, which related to the legal advice sought about a specific amendment to the Town Planning Scheme. The court held that the defendant should answer questions 6.1 and 6.2, but it may claim privilege with respect to question 6.3, which required disclosing the impact of the amendment on the defendant. The court ordered the defendant to provide a further answer to interrogatory 6, subject to any claim for privilege in relation to legal advice provided to the defendant.

In summary, the court allowed the plaintiff's application for further and better answers to interrogatories 3.1.2 and 6 but declined to order the defendant to answer interrogatory 4. The court would hear the parties as to the precise form of orders and costs.

Orders