Moody v Lendlease Real Estate Investments Limited T/As Lakeside Joondalup Shopping Centre

[2022] WADC 13

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MOODY -v- LENDLEASE REAL ESTATE INVESTMENTS LIMITED T/AS LAKESIDE JOONDALUP SHOPPING CENTRE [2022] WADC 13

CORAM:   REGISTRAR KINGSLEY

HEARD:   4 FEBRUARY 2022

DELIVERED          :   11 FEBRUARY 2022

FILE NO/S:   CIV 793 of 2019

BETWEEN:   BRIAN WALLACE MOODY

Plaintiff

AND

LENDLEASE REAL ESTATE INVESTMENTS LIMITED T/AS LAKESIDE JOONDALUP SHOPPING CENTRE

Defendant

Catchwords:

Practice - Application for specific discovery - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr D J Mezger
Defendant	:	Mr J C Paparone

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
Defendant	:	McCabes Lawyers

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

CVW Group Holdings Pty Ltd v Addison [2011] WASC 267

Rafferty v Amaca Pty Ltd (formerly James Hardy and Co Pty Ltd) [2017] WASC 18

Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218

REGISTRAR KINGSLEY:

1. By his amended statement of claim (ASOC) filed 15 July 2021, the plaintiff alleges the defendant leased or contracted with several entities to allow those entities to lease premises' or operate businesses at a shopping centre known as Lakeside Joondalup Shopping Centre.  The leases included Coles Supermarkets Australia Pty Ltd (Coles) and Myer Pty Ltd (Myer) (ASOC, par 4A).

2. On 16 July 2018 the plaintiff alleges that he was required to drive a truck to the basement area to deliver goods to Coles.  In attempting to deliver the goods the plaintiff was required to navigate his truck around a palette of goods left unattended in the thoroughfare inside the basement area.  The truck driven by the plaintiff collided with a pillar and the plaintiff alleges he was injured.

3. By its amended defence filed 19 July 2021, the defendant admits it entered into lease agreements with Coles and Myer but does not otherwise admit the first paragraph 4A of the ASOC.  The defendant then goes on to plead that the basement area was not a common area in any event, that any liability was imposed upon the tenants and not the defendant and the defendant, did not have the power to direct the manner in which tenants would use the basement area.

4. An issue has arisen as to the extent of discovery and the plaintiff has filed a chamber summons dated 2 November 2021 seeking specific discovery.  The plaintiff seeks a full plan or map of the basement area as that term is defined in par 4A of the ASOC, as well as all documents identifying in plan form, the common areas (again a defined term) between the defendant and Coles and Myer.  The plaintiff also seeks all documents in relation as to who the defendant says had, as at July 2018, control of the basement area other than Coles and Myer and a clear and legible A3 size plan of the licenced area, currently included at schedule F of the lease between the defendant and Coles. 

5. The plaintiff relied on the affidavit of Georgia Rose Bennadetti, filed 23 November 2021, as well as the affidavit of the plaintiff, filed 22 June 2020, and an affidavit of Karina Costello, filed 2 July 2020.  The affidavit of Moody and Costello were filed in relation to the chamber summons filed 9 June 2020. 

6. The starting point in relation to an application for specific discovery is that the affidavit of discovery is conclusive.  A court can go behind the affidavit where the insufficiency of the discovery appears on an admission in the pleading by the party from whom discovery was sought or from the affidavit of documents itself, or from documents referred to in the affidavit or from any other source that constitutes an admission of a discoverable document, or where there is a misconception of the case: Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd[2010] WASC 218.

7. If on the face of it, from the material before the court, the court has a reasonable ground for being fairly certain that the documents are or have been in the possession of the defendant and they relate to a matter in question then the court may make an order: Rafferty v Amaca Pty Ltd (formerly James Hardy and Co Pty Ltd)[2017] WASC 18.

8. The court has a discretion in relation to specific discovery but in absence of an affidavit stating the belief of the deponent that the defendant has or has had the documents sought, the court discretion is not enlivened: CVW Group Holdings Pty Ltd v Addison [2011] WASC 267.

9. The Benedetti affidavit is principally relied on by the plaintiff.  In that affidavit there is no statement of belief on the part of Benedetti that the defendants have had or had the documents sought.  The Benedetti affidavit does annexe a number of pages of a lease between Lendlease Fund Management Limited and Coles and Myer.  In the affidavit of Costello, my attention is directed to requisitions issued by Landgate which states that the sketch provided for Myer does not clearly identify the portion of land to be subject to a lease, noting that the dimensions shown on the sketch are illegible.

10. The plaintiff's evidence from the affidavits of Costello and Benedetti is that the lessor of the premises leased to Coles and Myer is an entity called Lendlease Funds Management Limited.  The defendant admits it is the registered proprietor of the Joondalup Shopping Centre.  Whilst, curiously, the defendant admits entering into lease agreements with Coles and Myer, the evidence does not reflect that pleaded fact.  On the plaintiff's evidence it is Lendlease Funds Management Limited who provided the necessary documentation to Landgate for the registration of the lease.  There is nothing in the affidavit of Benedetti to suggest that the defendants have or have had the documents sought.

11. The plaintiff seeks all documents as to who the defendant says has, at July 2018, had control of the basement area other than Coles or Myer.  The defendants pleads that it is the tenants who had control (amended defence, par 5) and those documents have been discovered.

12. As for the clear and legible A3 plan of the licenced area as referred to in par 47 of the lease between the defendant and Myer and Schedule F in the lease between the defendant and Coles, the lessor is Lendlease Funds Management Limited, not the defendant.  The plan of the licensed area may be in the hand of Lendlease Funds Management Limited.  For the reasons above, this is not a document that the defendant had or has had in their possession.

13. For these reasons the plaintiff's application is dismissed.

14. I will hear counsel on the issue of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

FN

Court Officer

10 FEBRUARY 2022