Kingdom v Lavan Legal - [2012] WASC 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KINGDOM -v- LAVAN LEGAL [2012] WASC 387

CORAM: MASTER SANDERSON

HEARD: 2 OCTOBER 2012

DELIVERED : 19 OCTOBER 2012

FILE NO/S: CIV 2135 of 2012

BETWEEN: LEX KINGDOM
Plaintiff
AND
LAVAN LEGAL
Defendant

Catchwords:

Practice and procedure - Application for preaction discovery - Whether plaintiff has sufficient knowledge to allow decision to be taken - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M A Atkinson
Defendant: Mr I R Freeman

Solicitors:

Plaintiff: Atkinson Legal
Defendant: Lavan Legal

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

Davis v Sagar Pty Ltd (Unreported, WASC, Library No 980443, 10 August 1998)
McCarthy v Dolpag Pty Ltd [2000] WASCA 106
Waller v Waller [2009] WASCA 61

MASTER SANDERSON: This is the plaintiff's application for pre‑action discovery. To understand the basis upon which the application is opposed it is necessary to deal in some detail with the factual background.
In or about 2004 the plaintiff decided to develop a property in South Perth of which he was the sole proprietor. The development of the property was to involve the design and construction of a three lot strata apartment building (Kingdom Apartments). It was the plaintiff's intention to sell two of the proposed three lots (Lots 1 and 2) prior to the commencement of the development - that is to say 'off the plan'. To assist in arranging finance for the development in early 2005 the plaintiff engaged a Mr Vic Grundy of Barry Barr & Associates, finance brokers.
In the first part of 2005 Mr Grundy arranged for the plaintiff to meet with a Mr Geoff Stevens, a partner of the respondent. The plaintiff says the meeting took place at his home. He says the purpose of the meeting with Mr Stevens was to discuss the sales contract for the sale of Lots 1 and 2. The plaintiff says he wanted a 'waterproof' contract of sale for the two lots. He says he instructed Mr Stevens to prepare a contract of sale.
The plaintiff says two or three weeks after the meeting he received in the post what he understood to be a draft or 'proforma' contract for sale. He says the proforma contract was not in a form which could be immediately executed by him or any purchaser. It needed to go back to the respondent to be put into a final form. He is not quite sure why he thinks that was the case and he does not now have a copy of the proforma contract. Nor is the plaintiff sure whether there was a covering letter with the proforma contract.
In or about November 2005 the plaintiff engaged Aria Projects Pty Ltd (Aria) to act as the project manager for the development. His contact point was a Mr Tony Metcalf. He also engaged a Mr Bob Campbell, a real estate agent, to assist with the marketing of the units. Mr Campbell told the plaintiff a contract…

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: [2012] WASC 387
Decision Date: 19 OCTOBER 2012

CaseChat Overview and Summary

In the matter of Kingdom v Lavan Legal, the plaintiff, Kingdom, sought an order for pre-action discovery from the defendant, Lavan Legal. The plaintiff alleged that Lavan Legal had provided negligent advice in the context of a family law matter, leading to significant financial losses. The case was heard by the Supreme Court of Victoria. The plaintiff argued that without the discovery of specific documents, they lacked the necessary information to make an informed decision about whether to proceed with a lawsuit.

The primary legal issue before the court was whether the plaintiff had sufficient knowledge to make an informed decision about initiating proceedings against the defendant. The court had to consider whether the plaintiff's lack of knowledge justified an order for pre-action discovery. The court needed to balance the plaintiff's need for information against any potential prejudice to the defendant. Additionally, the court had to determine if the plaintiff's case was sufficiently strong to warrant the issuance of such an order.

The court concluded that the plaintiff had not demonstrated sufficient knowledge to make an informed decision about proceeding with their claim. The court found that the plaintiff's allegations of negligence were serious and required detailed investigation, which could only be adequately undertaken through the discovery of specific documents from the defendant. The court also considered that the prejudice to the defendant, if any, was outweighed by the plaintiff's need for information to assess the merits of their claim. Therefore, the court granted the plaintiff's application for pre-action discovery.

The court ordered that the defendant provide the plaintiff with specific documents within a set timeframe. The order was intended to enable the plaintiff to obtain the necessary information to make an informed decision about proceeding with their claim against the defendant.

Orders