MM Developments Pty Ltd (ACN 064 032 631) (Receivers and Managers Appointed) and Peat Resources of Australia Pty Ltd (ACN 008 798 025) (Receivers and Managers Appointed) v De Hollander
[2003] WASC 187
MM DEVELOPMENTS PTY LTD (ACN 064 032 631) (RECEIVERS AND MANAGERS APPOINTED) AND PEAT RESOURCES OF AUSTRALIA PTY LTD (ACN 008 798 025) (RECEIVERS AND MANAGERS APPOINTED) & ANOR -v- DE HOLLANDER & ORS [2003] WASC 187
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 187 | |
| 25/09/2003 | |||
| Case No: | CIV:1537/2003 | 16 SEPTEMBER 2003 | |
| Coram: | MASTER SANDERSON | 16/09/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MM DEVELOPMENTS PTY LTD (ACN 064 032 631) (RECEIVERS AND MANAGERS APPOINTED) PEAT RESOURCES OF AUSTRALIA PTY LTD (ACN 008 798 025) (RECEIVERS AND MANAGERS APPOINTED) NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) JOANNE KAREN DE HOLLANDER SOILAND PTY LTD (ACN 099 027 960) AND SOILS AIN'T SOILS 2002 PTY LTD (ACN 099 039 451) KEVIN TREVOR POLLOCK FRANCES IVA POLLOCK |
Catchwords: | Practice and procedure Application for leave to inspect documents referred to in affidavit Turns on own facts |
Legislation: | Rules of the Supreme Court 1971, O 14 r 2(1), O 26 r 8(2), O 26 r 11 |
Case References: | Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Dalecoast Pty Ltd v Guardian International Pty Ltd, unreported; FCt SCt of WA; Library No 990208; 23 April 1999 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Robinson v Adshead (No 1) (1994) 12 WAR 574 Bishopsgate Investment Management Ltd (In Liq) v Maxwell (No 2) [1994] 1 All ER 261 LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517 O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 R v Heilbronn (1999) 30 ACSR 488 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiffs
NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)
Second Plaintiff
AND
JOANNE KAREN DE HOLLANDER
First Defendant
SOILAND PTY LTD (ACN 099 027 960) AND SOILS AIN'T SOILS 2002 PTY LTD (ACN 099 039 451)
Second Defendants
(Page 2)
KEVIN TREVOR POLLOCK
Third Defendant
FRANCES IVA POLLOCK
Fourth Defendant
Catchwords:
Practice and procedure - Application for leave to inspect documents referred to in affidavit - Turns on own facts
Legislation:
Rules of the Supreme Court 1971, O 14 r 2(1), O 26 r 8(2), O 26 r 11
Result:
Application dismissed
Category: B
(Page 3)
Representation:
Counsel:
First Plaintiffs : Mr J A Thomson
Second Plaintiff : Mr J A Thomson
First Defendant : Mr K L Christensen
Second Defendants : Mr K L Christensen
Third Defendant : Mr K L Christensen
Fourth Defendant : Mr K L Christensen
Solicitors:
First Plaintiffs : Mallesons Stephen Jaques
Second Plaintiff : Mallesons Stephen Jaques
First Defendant : Christensen Vaughan
Second Defendants : Christensen Vaughan
Third Defendant : Christensen Vaughan
Fourth Defendant : Christensen Vaughan
Case(s) referred to in judgment(s):
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Dalecoast Pty Ltd v Guardian International Pty Ltd, unreported; FCt SCt of WA; Library No 990208; 23 April 1999
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Robinson v Adshead (No 1) (1994) 12 WAR 574
Case(s) also cited:
Bishopsgate Investment Management Ltd (In Liq) v Maxwell (No 2) [1994] 1 All ER 261
LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517
O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262
R v Heilbronn (1999) 30 ACSR 488
(Page 4)
1 MASTER SANDERSON: This application raises a short but rather difficult point. When the matter came on in general chambers I heard brief argument and indicated to the parties that I would reserve my decision until the following day. At that time I dismissed the application and indicated I would publish my reasons at a later date. These are those reasons.
2 To put the application itself in context it is necessary to say something about the cause of action brought by the plaintiffs against the defendants. As a consequence of an amended writ of summons filed 7 July 2003, the National Australia Bank Ltd is the second plaintiff in the proceedings. A statement of claim was filed on 17 July 2003. In summary, it is said that certain companies associated with the first, third and fourth defendants carried on business under the name "Soils Ain't Soils". It is pleaded that the goodwill of the businesses trading under the business name was derived from a certain registered trademark and the registered business name of "Soils Ain't Soils". It is pleaded that the second plaintiff had a charge over these two assets. It is pleaded that on certain dates in June 2001 and November 2002 the trademark and the business name was transferred from MM Developments Pty Ltd (which was not then in receivership) to the first defendant. It is said that this transfer was effected in breach of a range of fiduciary and statutory duties and contrary to the provisions of the second plaintiff's charge. Inter alia, the plaintiffs want an injunction to restrain the first defendant dealing with either the trademark or the business name and ultimately they want both assets returned to the plaintiffs. That is very much a truncated summary of the pleaded cause of action, but it will suffice for present purposes.
3 The plaintiffs have applied for summary judgment. In support of that application they have filed an affidavit of Ian Charles Francis ("Mr Francis"), sworn 17 July 2003, and an affidavit of Rachel Elizabeth Burdett ("Ms Burdett"), sworn the same day. By par 24 through to 27 of his affidavit, Mr Francis deposes to the ownership of the trademark and its assignment to the first defendant. By par 28 to 31 he deals with the business name. In both cases he says that his examination of the books of MM Developments Pty Ltd do not indicate that the first defendant paid MM Developments Pty Ltd anything for the transfer of either the trademark or the business name. Clearly these paragraphs are central to the plaintiffs' application for summary judgment.
4 Ms Burdett is employed by the second plaintiff as a Principal Manager in "the Credit Restructuring WA unit". For present purposes, it
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- is par 3 and 4 of her affidavit which are of interest. They are in the following terms:
"3 Further, I refer to paragraphs 24 to 27 of the Francis Affidavit. Based upon enquiries I have made within the Second Plaintiff with all persons who I consider might have any relevant knowledge, and my review of the Second Plaintiff's files, I believe that the assignment of the Trademark from MM Developments to Joanne de Hollander was made without the Second Plaintiff's knowledge or consent.
4 I also refer to paragraphs 28 to 31 of the Francis Affidavit. Based upon enquiries I have made within the Second Plaintiff with all persons who I consider might have any relevant knowledge, and my review of the Second Plaintiff's files, I believe that the transfer of the Business Name from Peat Resources to Joanne de Hollander was made without the Second Plaintiff's knowledge or consent."
"1. Within 48 hours of the making of this order, the second plaintiff produce at the offices of the second plaintiff's solicitors the contents of the files referred to in paragraphs 3 and 4 of the affidavit of Rachel Elizabeth Burdett sworn 17 July 2003 and filed in these proceedings and that the first defendant and her solicitors be at liberty to inspect and peruse the documents so produced.
2. Alternatively to paragraph 1, paragraphs 3 and 4 of the affidavit of Rachel Elizabeth Burdett sworn 17 July 2003 be struck out.
3. The second plaintiff pay the first defendant's costs of the application to be taxed."
6 The first defendant's application relies upon the provisions of O 26 r 8(2) of the Rules of the Supreme Court 1971. That rule is in the following terms:
(Page 6)
- "Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice."
7 In support of the application, counsel for the first defendant relied upon the Full Court decision in Dalecoast Pty Ltd v Guardian International Pty Ltd, unreported; FCt SCt of WA; Library No 990208; 23 April 1999. This case concerned an appeal against a decision of a Master directing that inspection be given of certain documents referred to in the plaintiff's statement of claim. In the course of his reasons, White J referred to the decision of Master Adams in Robinson v Adshead (No 1) (1994) 12 WAR 574 and a number of English decisions referred to in that judgment. His Honour accepted that the proper approach to rule was that where there is a request to inspect documents mentioned in pleadings or affidavits, the requested party must produce the document unless he can show good cause why he should not. His Honour made the point that the rule applies equally to pleadings and affidavits and no distinction can properly be drawn between the two. Based upon this proposition, counsel submitted that inspection of the second defendant's files should be ordered.
8 In my view it is important to consider what issue is to be determined on the summary judgment application. Clearly the plaintiff is making the point that the records of MM Developments Pty Ltd do not show any consideration for the transfer of the trademark or the business name to the first defendant. The affidavit of Ms Burdett, at par 3 and 4, deals with the question of whether the second plaintiff had knowledge of any such transfer. The first defendant has not alleged either that there was consideration for the transfer of the trademark and business name, or that the second plaintiff had knowledge of such transfer. To date, in opposition to the application, there is on file an affidavit of the third defendant, sworn 12 August 2003. That affidavit makes no mention of par 24 to 27, or 28 to 31 of Mr Francis' affidavit. It makes no mention at all of Ms Burdett's affidavit.
9 It is important to draw back for a moment and consider where the parties stand in relation to this summary judgment application. Under the provisions of O 14 it is necessary for a party, when applying for summary judgment, to verify the facts upon which the claim is based and to depose to a belief that there is no defence to the claim: see O 14 r 2(1). Once that is done, the evidentiary burden shifts to the defendant to establish a
(Page 7)
- prima facie defence and the defendant must condescend upon particulars. That is not to suggest that the legal burden of persuasion shifts to the defendant - it does not: see Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 at 23. But a defendant must do more than raise bare allegations unsupported by material facts: see Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 at 113. What the affidavits of Mr Francis and Ms Burdett have done is establish the evidentiary framework against which they are able to say that they believe the first defendant has no defence to the plaintiffs' claim.
10 What then is the first defendant to say in answer to the plaintiffs' claim? Certainly she has not raised any suggestion that the second plaintiff knew about the transfer of the trademark or the business name. If she were to make that allegation, then the veracity of the search undertaken by Ms Burdett might be an issue and there may be grounds for ordering that the second plaintiff's files be available for inspection by the first defendant. I expressed no concluded view on that question. But at present, there is no real live issue such as would justify any inspection being ordered. In other words, I am satisfied that the plaintiffs have established that although certain documents in their possession are mentioned in Ms Burdett's affidavit, they have shown good cause why these documents should not be available for inspection.
11 If I am wrong in that analysis of the position, I would nonetheless make an order excusing production of the documents pursuant to the provisions of O 26 r 11. In my view, there is no fairness in requiring the second plaintiff to produce its files in the context of this summary judgment application. As I have said, I am not satisfied that there is any issue between the parties at present which would justify the unlimited inspection which the first defendant seeks.
12 It is for these reasons I dismissed the first defendant's application. I ordered that the first defendant pay the second plaintiff's costs of the application.
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