Indtex Pty Ltd v Knight Homes Pty Ltd - [2020] VSC 427

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01885

INDTEX PTY LTD (ACN 075 711 125)	Plaintiff
v
KNIGHT HOMES PTY LTD (ACN 121 402 480)	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2020
DATE OF JUDGMENT:	14 July 2020
CASE MAY BE CITED AS:	Indtex Pty Ltd v Knight Homes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 427

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PRACTICE AND PROCEDURE – Discovery of documents – Particular discovery pursuant to r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether order should be made – Application also pursuant to s 55 of the Civil Procedure Act 2010 (Vic) – Applications refused.

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APPEARANCES: (By Written Submission)	Counsel	Solicitors
For the Plaintiff	Mr R G Squirrel	Efron & Associates
For the Defendant	Mr C A Connor	KCL Law

HIS HONOUR:

Introduction

The plaintiff applies by summons filed on 2 March 2020 for the defendants to make ‘further discovery’ pursuant to r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). As can be seen from the reference to r 29.08 of the Rules, the application is in fact for what is generally called ‘particular discovery’, a matter of some importance to which I will return.

Background

The plaintiff (Indtex) was the registered proprietor of the land at 892 Glen Huntly Road, Caulfield South (Land).[1] The defendants are Knight Homes Pty Ltd, a registered builder (Builder), and Ronan Kavallero, who is the sole director of the Builder (Kavallero).
[1]The land more particularly described in Certificate of Title Volume 09080 Folio 470.

The proceeding was commenced by generally indorsed writ on 23 October 2018 and came before the Judge in the Practice Court as an application for removal of a caveat lodged by the builder over the Land. The general indorsement was that:

(a) on about 2 September 2015, Indtex and the Builder entered a Building Contract for the construction of 9 apartments (the apartments) on the Land;

(b) Indtex agreed with Kavallero to appoint him as an independent consulting project manager for the development of the apartments at a fee of $50,000 (Consulting Agreement);

(c) on about 3 January 2017, Indtex and the Builder entered a Profit Share Deed whereby, amongst other things, Indtex agreed to pay 50% of the profit on the construction and on-sale of the apartments to the Builder and to charge the land with payment of that amount (Profit Share Deed);

(d) the Builder and Kavallero engaged in misleading and deceptive conduct and unconscionable conduct, all in trade and commerce, to secure the entry into both the Consulting Agreement and the Profit Share Deed in breach of ss 18, 20 and 21 of the Australian Consumer Law (ACL), in consequence of which Indtex has suffered loss and damage;

(e) the Builder caused a Caveat to be lodged…

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: [2020] VSC 427
Decision Date: 14 July 2020

CaseChat Overview and Summary

The case of Indtex Pty Ltd versus Knight Homes Pty Ltd involved a dispute between two companies, where Indtex sought particular discovery of documents from Knight Homes. The matter was heard in the County Court of Victoria. The dispute centred on whether Knight Homes should be compelled to provide specific documents to Indtex for the purpose of discovery. This request was made pursuant to rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which governs particular discovery. Additionally, Indtex invoked section 55 of the Civil Procedure Act 2010 (Vic) in support of its application.

The court was tasked with determining whether an order should be made to compel the discovery of the requested documents. The legal issues included the scope and application of rule 29.08, as well as the criteria under section 55 for making such an order. The court had to assess whether the documents sought were relevant to the proceedings, whether their disclosure was necessary for the just disposal of the case, and whether there were any overriding considerations that should prevent the order being made.

In reaching its decision, the court carefully considered the nature and relevance of the documents in question, as well as the circumstances under which they were sought. It examined the application of the criteria set out in the relevant rules and legislation. Ultimately, the court found that the documents were not necessary for the just disposal of the case and that there were no overriding considerations that would support the making of the order. Consequently, the court dismissed the application for particular discovery of documents.

Orders