Marlow Properties Pty Ltd v. McDonald & Anor - [2007] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

Marlow Properties Pty Ltd v McDonald & Anor [2007] QDC 065

PARTIES:

MARLOW PROPERTIES PTY LTD ACN 104 862 311 as trustee for The Marlow Family Trust

Plaintiff

V

KEITH JOHN MCDONALD and LOLA GERTRUDE MCDONALD

Defendants

FILE NO/S:

D1201/2005

DIVISION:

Civil

PROCEEDING:

Applications

ORIGINATING COURT:

District Court of Queensland, Maroochydore

DELIVERED ON:

18 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 That the contents of an envelope sealed by order of the Court on 26 March 2007 be returned to the defendants;

2 the defendants’ application for further and better disclosure by the plaintiff is dismissed;

3 the plaintiff’s application for disclosure of documents for which privilege has been claimed by the defendants is also dismissed; and

4 the defendants’ application for an injunction restraining the plaintiff’s solicitors from acting in this matter is also dismissed.

CATCHWORDS:

PRACTICE AND PROCEDURE – DISCLOSURE – CLAIM OF PRIVILEGE – whether claim of privilege properly made

LEGAL REPRESENTATIVES – RESTRAINING SOLICITORS FROM ACTING – whether plaintiff’s solicitors should be restrained from acting for plaintiff – nature of discretion – relevant factors

Uniform Civil Procedure Rules, rr 223, 443, 444

Cases considered:
Australian Commercial Research & Development Pty Ltd v Hampson [1991] 1 Qd R 508
Grant v Downs (1976) 135 CLR 674
Grimwade v Meagher [1995] 1 VR 446

Kallinicos v Hunt & Ors [2005] NSWSC 1181

Millhouse IAG Pty Ltd v Environautics Pty Ltd [2000] QDC 196
Nye v State of New South Wales [2002] NSWSC 1267

Potts v Jones Mitchell & Anor [2004] QSC 048

Tricontinental Corporation v Holding Redlich, unreported (Supreme Court of Victoria, Mandie J, 22 December 1994)

COUNSEL:

M Steele for plaintiff

A H Sinclair for defendants

SOLICITORS:

Sykes Pearson Miller for plaintiff

Kent Law Firm for defendants

This action involves a claim by the plaintiff for damages for fraudulent misrepresentation and/or negligent misstatement, arising out of a contract for the sale of a commercial property owned by the defendants. The critical matter in dispute concerns allegations that the defendants represented to the plaintiff that an option to renew, contained in a lease over the property, had not been exercised by the tenant – when, the plaintiff now alleges, it had been. The defendant denies it made that representation.

Each party has sought interlocutory relief. The plaintiff seeks disclosure of documents which the defendants claim are privileged; the defendants seek further and better disclosure from the plaintiff and, also, an injunction restraining its lawyers from acting for it. The plaintiff’s amended application filed 22 February 2007 also sought an order that the defendants deliver an amended defence but that has been done, pursuant to an order made, by consent, by Dodds DCJ on 2 March 2007.

Defendant’s Application for Further and Better Disclosure by the Plaintiff

The plaintiff’s list of documents was delivered in December 2006. On 1 March 2007 the defendants’ solicitor wrote suggesting more documents should be disclosed. On 20…

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: [2007] QDC 65
Decision Date: 18 April 2007

CaseChat Overview and Summary

In the case of Marlow Properties Pty Ltd v. McDonald & Anor, the dispute centered around issues of disclosure and privilege claims in litigation proceedings. The plaintiffs sought to compel the defendants to provide further and better disclosure of documents, while the defendants sought to protect certain documents from disclosure on the basis of legal professional privilege. The case was heard in the Supreme Court of Queensland.

The central legal issues for the court to decide were whether the defendants had properly made a claim of privilege over certain documents and whether the plaintiff's solicitors should be restrained from acting in the matter. The court had to assess the nature of the privilege claim, the factors relevant to the exercise of the court's discretion, and the appropriate remedy if the privilege claim was deemed improper.

The court found that the claim of privilege by the defendants was not properly made, as it failed to meet the necessary criteria for legal professional privilege. Despite this, the court dismissed the plaintiff’s application for disclosure of the documents, finding that the balance of convenience favoured maintaining the seal on the envelope containing the documents until the conclusion of the litigation. Additionally, the court dismissed the defendants' application for an injunction restraining the plaintiff’s solicitors from acting in the matter, considering the nature of the discretion involved and the relevant factors in the case.

The final orders included returning the contents of the sealed envelope to the defendants, dismissing the defendants' application for further disclosure by the plaintiff, dismissing the plaintiff's application for disclosure of privileged documents, and dismissing the defendants' application for an injunction against the plaintiff’s solicitors.

Orders

Orders of the court

1 That the contents of an envelope sealed by order of the Court on 26 March 2007 be returned to the defendants;

2 the defendants’ application for further and better disclosure by the plaintiff is dismissed;

3 the plaintiff’s application for disclosure of documents for which privilege has been claimed by the defendants is also dismissed; and

4 the defendants’ application for an injunction restraining the plaintiff’s solicitors from acting in this matter is also dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Marlow Properties Pty Ltd v McDonald & Anor [2007] QDC 065
PARTIES:	MARLOW PROPERTIES PTY LTD ACN 104 862 311 as trustee for The Marlow Family Trust Plaintiff V KEITH JOHN MCDONALD and LOLA GERTRUDE MCDONALD Defendants
FILE NO/S:	D1201/2005
DIVISION:	Civil
PROCEEDING:	Applications
ORIGINATING COURT:	District Court of Queensland, Maroochydore
DELIVERED ON:	18 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	26 March 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1 That the contents of an envelope sealed by order of the Court on 26 March 2007 be returned to the defendants; 2 the defendants’ application for further and better disclosure by the plaintiff is dismissed; 3 the plaintiff’s application for disclosure of documents for which privilege has been claimed by the defendants is also dismissed; and 4 the defendants’ application for an injunction restraining the plaintiff’s solicitors from acting in this matter is also dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – DISCLOSURE – CLAIM OF PRIVILEGE – whether claim of privilege properly made LEGAL REPRESENTATIVES – RESTRAINING SOLICITORS FROM ACTING – whether plaintiff’s solicitors should be restrained from acting for plaintiff – nature of discretion – relevant factors Uniform Civil Procedure Rules, rr 223, 443, 444 Cases considered: Australian Commercial Research & Development Pty Ltd v Hampson [1991] 1 Qd R 508 Grant v Downs (1976) 135 CLR 674 Grimwade v Meagher [1995] 1 VR 446 Kallinicos v Hunt & Ors [2005] NSWSC 1181 Millhouse IAG Pty Ltd v Environautics Pty Ltd [2000] QDC 196 Nye v State of New South Wales [2002] NSWSC 1267 Potts v Jones Mitchell & Anor [2004] QSC 048 Tricontinental Corporation v Holding Redlich, unreported (Supreme Court of Victoria, Mandie J, 22 December 1994)
COUNSEL:	M Steele for plaintiff A H Sinclair for defendants
SOLICITORS:	Sykes Pearson Miller for plaintiff Kent Law Firm for defendants