Pluim Constructions Pty Ltd v Tuggerah Business Park Pty Ltd

[1996] FCA 1201

1201 , 46

IN THE FEDERAL COURT OF AUSTRALIA ) 1 JUDGMENT No, .e...,,** ee**e*..e wmbw,bbme

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 728 of 1996
GENERAL DIVISION

BETWEEN :

PLUIM CONSTRUCPIONS PTY

LIMITED

Applicant

AND :

TUGGERAH BUSINESS PARK PTY

LIMITED

First Respondent

TERRACE TOWER GROUP PTY

LIMITED

Second Respondent

TERRACE TOWER PTY LIMITED

Third Respondent

PATRICK HOULAHAN

Fourth Respondent

PATRICK HOULAHAN AND

ASSOCIATES PTY LIMITED

Fifth Respondent

J S NOMINEES PTY LIMITED

Sixth Respondent

LANLEX NO 117 PTY LIMITED

Seventh Respondent

VINCENT TRAD

Eighth Respondent

COURT : LOCKHARTf OfLOUGHLINf MOORE JJ

DATE : 26 NOVEMBER 1996

PLACE : SYDNEY

REASONS FOR JUDGMENT

THE COURT

This is an application for leave to appeal from the judgment of a Judge of the Court (Branson J.) given on 8 November 1996. Her Honour dismissed an application by the applicant for orders for preliminary discovery against the respondents pursuant to order 15A rule 6.

There is a serious question as to whether leave is necessary because, on one view of the matter, an order dismissing an application under order 15A rule 6 is a final order. However, it has been agreed between the parties that the Court should not only hear argument on the application, but it should deal with the appeal as well. This may give rise to an inherent procedural problem as there is no notice of appeal before the Court (which technically, of course,

there cannot be). We shall say more about that later.

The dispute between the parties arises out of a building contract involving a substantial sum of money which appears to have been between the applicant and the first respondent. It has all the hallmarks of a classic building case on a large scale. Her Honour considered the prospective causes of action and set them out in her judgment, in particular at page 7. She dealt with each of the assertions that was made before her by the applicant and considered them extensively.

The first of the alleged prospective causes of action was described by her Honour at page 11 of her judgment as being formulated against the first respondent in terms of fraudulent misrepresentation or deceit. The other prospective causes of action were also set out by her Honour.

Although the findings of her Honour differed slightly

with respect to certain of the prospective causes of action,

in essence she found that the evidence before her was insufficient to establish that there was reasonable cause to believe that the applicant has, or may have, a right to obtain relief in this Court from the relevant respondent.

The applicant has submitted before us that her Honour erred in various respects. The primary attack on her Honour's judgment is that her Honour is asserted to have approached the case on a premise which is fundamentally false, namely, that she looked at the potential claim of the applicant as being a claim that sounded in damages only, whether that be at common law, or under S. 82 of Trade Practices Act 1974 or under the equivalent provision of the Fair Trading Act (NSW). It is said that her Honour ought also to have examined the material before her on the basis that there was reasonable cause to believe the applicant has, or may have, the right to obtain injunctive relief, in particular pursuant to S . 80 of the Trade Practices Act, or other relief pursuant to S. 87 of that Act.

Order 15A rule 6 provides in paragraph (a), so far as is material, that where 'there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertainedr then provided the conditions set out in paragraphs (b) and (c) are also satisfied, the Court may make an order for preliminary discovery.

It was submitted on behalf of the applicant that it was conceded by the applicant and the concession was agreed to by counsel for the respondents - that no case was put before her Honour inviting the relief now sought. No evidence was adduced before her Honour and no submissions were made to her, either in the written submissions that were handed up or in the oral argument that was advanced, that there is reasonable cause to believe that the applicant had any right other than the right to obtain damages or possibly damages on the case sounding in debt based on a quantum meruit claim. I say there is possibly a case sounding in debt because there has been in the law a long standing question, still not finally resolved, as to whether a quantum meruit claim is a claim for damages or not. Certainly, whatever else it is, it is a claim of a monetary character only.

The applicant's submission suffers from a basic misconception. It is not for a judge to ferret through all the material before the Court and to decide whether or not there may be reasonable cause to believe that an applicant has, or may have, a right to obtain relief. It is for a party to outline to the Court, in submissions based on the material, whether any particular form of relief may or may not be available to the applicant. As I have said, all that was put to her Honour were submissions based on damages or on quantum meruit . Thus, we reject the view that her Honour was in some way bound, herself, to go beyond the submissions and see if

any other cause of action or right of relief may have existed. Furthermore, on the material which is before the Court - which is, of course, the same material which was before the learned primary Judge - we are not persuaded that there is any reasonable cause to believe that the applicant has or might have the right to obtain injunctive other relief or relief under S. 87. I emphasise that this decision is based on the material before the Court because if, for example, an applicant fails in an application under order 15A rule 6, but sometime later produces substantially different material or material which throws a very different light on the question of a reasonable cause of action, then there is no doubt that an application based on that material can be brought again. Nor does the Court say anything whatever about the prospects of success, if any, in the ultimate cause of action which the applicant may have. That is not a matter which is before us.

Another submission was put to us based upon Jones v

D u n k e l ( 1 9 5 9 ) 101 CLR 298; some argument was also put to her

Honour both in written submissions and in oral argument relating to Jones v D u n k e l . Her Honour did not find it necessary to deal with the point; we see no substance in it at all. Jones v D u n k e l can have no application in a situation such as the present, based on the material we have.

For these reasons the Court is of the view that in so far

as it may be necessary to obtain leave to appeal, the

application for leave must be refused.

With respect to the apparent problem of dealing with an appeal in the absence of a notice of appeal, the Court does see a difficulty in disposing of the appeal itself because it is not strictly before us at this stage; further, we feel it is appropriate in a case like this to say that we are not satisfied that there would be any reasonable likelihood of success in an appeal brought as of right pursuant and from her Honour's judgment of 8 November 1996.

The applicant shall pay the costs of the first to seventh respondents of the application for leave to appeal. The costs are to be taxed if not agreed.

I certify that this and the preceding five

(5) pages are a true copy of the reasons

for judgment herein of the Honourable

Justice Lockhart.

Associate

Dated: 26 November 1996

Solicitors for the Applicant :	Dr David Doyle & Affiliates
Counsel for the Respondents :	M G Rudge
Solicitors for the Respondents:	Landerer & CO
Date of Hearing	26 November 1996
Date of Judgment	26 November 1996