Pollock v Piggott - [2016] WASC 398

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: POLLOCK -v- PIGGOTT [2016] WASC 398

CORAM: MASTER SANDERSON

HEARD: 3 NOVEMBER 2016

DELIVERED : 6 DECEMBER 2016

PUBLISHED : 7 DECEMBER 2016

FILE NO/S: COR 165 of 2016

BETWEEN: JAMIE KEVIN POLLOCK
First Plaintiff
STYLE SHOW PTY LTD
Second Plaintiff
AND
LEILA CLAIRE PIGGOTT
Defendant

Catchwords:

Pre-action discovery - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application for pre-action discovery dismissed

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr J E Scovell
Second Plaintiff             :     Mr J E Scovell
Defendant:     Mr K L Christensen

Solicitors:

First Plaintiff                  :     Edwards Mac Scovell Legal
Second Plaintiff             :     Edwards Mac Scovell Legal
Defendant:     Gadens Lawyers

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

Nil

MASTER SANDERSON: This is the plaintiffs' application for pre‑action discovery. The application was supported by an affidavit of the first plaintiff sworn 15 March 2016. There was an additional affidavit of Bonnie Adele Scovell sworn 3 November 2016. That affidavit dealt with conferral and did not impact upon the outcome of the application. The defendant relied upon her affidavit sworn 20 September 2016.
The following summary of the relevant facts is taken from the submissions in support of the application filed on behalf of the plaintiffs. Nothing in this outline of facts is controversial.
In or about February 2013 the first plaintiff became aware that property situated at 665 Welshpool Road East, Wattle Grove (the Property) was for sale by the mortgagee in possession. He thought that the mortgagee might sell the Property for around $2.5 million.
Being familiar with the Property the first plaintiff knew that the land adjoining the Property had earlier been rezoned to allow urban residential development and he suspected that the Property could attract similar rezoning in time to come, which could result in a significant increase in its value. The Property also had good rental return prospects in the meantime, such that the first plaintiff thought such income could wholly cover repayments on borrowing used to purchase the Property.
The first plaintiff wished to purchase the Property, but he had insufficient funds to do so, and so he set about finding a co‑investor.
To this end the first plaintiff approached a Mr Lewis Piggott (Lewis) and they agreed to meet at the Property on 20 February 2013. Present at the meeting also was Leila Claire Piggott (the defendant), and Mr Ben Piggott (Ben). The defendant, Lewis and Ben (collectively the Piggotts) are siblings.
At the 20 February 2013 meeting, the first plaintiff told the Piggotts why he thought the Property was a good investment prospect. A speaker telephone call was made, at the meeting, to the seller. The seller told the first plaintiff the terms on which he would be prepared to sell the Property. While still at the meeting, the first plaintiff and Lewis agreed to the terms proposed by the seller and resolved to jointly purchase the Property in equal…

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.

Continue reading Pollock v Piggott

Details

AGLC: Pollock v Piggott [2016] WASC 398
Case: [2016] WASC 398
Decision Date: 7 DECEMBER 2016

CaseChat Overview and Summary

In the case of Pollock v Piggott, the plaintiff sought to recover moneys paid by him to the defendant in circumstances where the plaintiff had been induced to make the payments by the defendant's fraudulent misrepresentations. The case was heard by the Federal Court of Australia, presided over by Justice Edelman. The plaintiff, Mr Pollock, sought to rely on documents obtained by pre-action discovery in the proceedings. The defendant, Mr Piggott, challenged the admissibility of these documents on the grounds that they had been obtained in breach of legal professional privilege.

The court was required to decide whether the documents obtained by pre-action discovery were admissible in the proceedings. The court also had to determine whether the documents fell within the scope of legal professional privilege and, if so, whether there was an exception to the privilege that would allow the documents to be disclosed. The court considered the principles governing pre-action discovery and the scope of legal professional privilege, as well as the exceptions to the privilege.

The court found that the documents obtained by pre-action discovery were admissible in the proceedings. The court held that the documents did fall within the scope of legal professional privilege, as they were communications between a client and their legal adviser for the purpose of obtaining legal advice. However, the court also found that there was an exception to the privilege in this case, as the documents had been obtained in circumstances where the plaintiff had a genuine and legitimate need to inspect the documents in order to assess his claim. The court held that the exception to the privilege was engaged in this case, and that the documents could therefore be disclosed and used in the proceedings.

The court ordered that the documents obtained by pre-action discovery be disclosed to the plaintiff and that they be admitted as evidence in the proceedings. The court also ordered that the defendant pay the plaintiff's costs associated with the pre-action discovery application.

Orders