Pritchard Associates Pty Ltd v Stevenson
[1999] NSWSC 888
•2 September 1999
CITATION: Pritchard Associates Pty Ltd v Stevenson & Anor [1999] NSWSC 888 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 11597/97 HEARING DATE(S): 30 August 1999 JUDGMENT DATE:
2 September 1999PARTIES :
Pritchard Associates Pty Limited
(Plaintiff)David Stevenson
Harvey Wong
(First Defendant)
(Second Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr T Edwards (Sol)
Mr R Angyal
(Plaintiff)
(First Defendant)SOLICITORS: Truman Hoyle
Holman Webb
(Plaintiff)
(First Defendant)CATCHWORDS: Further list of document; Service of experts reports ACTS CITED: Legal Profession Act 1987 - s 48E DECISION: See para 15
7
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
THURSDAY, 2 SEPTEMBER 1999
11597/97 - PRITCHARD ASSOCIATES PTY LIMITED v
JUDGMENT (Further list of documents -
DAVID STEVENSON & ANOR
service of experts reports)
1 MASTER: By amended notice of motion filed 30 August 1999 the first defendant seeks orders pursuant to Part 23 r 3(6) of the Supreme Court Rules, and that the first defendant file and serve all expert reports upon which he proposes to rely 21 days after service of the further verified list of documents filed by the plaintiff and that the plaintiff file and serve all statements and expert’s reports in rely upon which it proposes to rely within 28 days after service of the expert’s reports of the applicant. The first defendant relied on two affidavits of Richard John Bain Allsop sworn 13 July 1999 and 27 August 1999. The plaintiff relied on the affidavit of Robert Lloyd Pritchard sworn 19 July 1999 and Francis Lemar sworn 10 February 1999.2 In paragraph (2) of the amended notice of motion the first defendant seeks that orders (13), (14) and (15) made by Master Malpass on 10 December 1998 be discharged. Order (15) is that upon the presentation of a certificate of assessment of the costs to the registrar of the common law division of the court, the costs as assessed are to be paid to the plaintiff from the security sum by the registrar. Order (15) was made after a contested application to set aside a default judgment and it was one of the terms upon which the judgment was set aside. It is more appropriate that the discharge of order (15) be dealt with by Master Malpass and it is stood over before him for that purpose on a date to be fixed. Default judgment has been entered against the second defendant.
3 The issues raised in the pleadings in this matter have been helpfully set out in a judgment of Bell J dated 22 April 1999 and I have relied upon some of these in setting them out below.
4 The plaintiff, Pritchard Associates Pty Limited, claims an amount of $264,185 due under a contract entered into with the first and second defendants who are said to have been partners in relation to the promotion of a forestry resource development project in the East and West Sepik province of Papua New Guinea. The plaintiff alleges two agreements, the first made on 21 May 1996 on acceptance by the defendants of the plaintiff’s offer made on 18 May 1996 to provide consultancy services in connection with the project and the second, described as a variation of the first, made on 10 August 1996. The alleged variation that occurred on 8 August 1996 was that if the plaintiff reduced the charges for total consultancy services (excluding out-of-pocket expenses) otherwise payable in accordance with the first agreement, to the sum of US$250,000 for all work carried out up until 24 September 1996 with consultancy fees accruing thereafter to be charged at the rates and on the terms agreed in the first agreement, the defendants would pay to the plaintiff the balance then remaining unpaid of the said sum of US$250,000, namely US$204,185 as to the sum of US$154,185 forthwith and as to the balance of US$50,000 on 1 September 1996.
5 By his amended defence filed 25 February 1999 the first defendant denies that he was a party to any contract with the plaintiff. He alleges that the plaintiff is incorrectly named. He contends that the agreement under which the plaintiff seeks payment was between the plaintiff and San Kung Trading Ltd. Further, the first defendant pleads that the original agreement was one for the provision of legal services made between Phillips Fox of which Robert Pritchard was a partner and San Kung Trading Ltd. Subsequently, after Mr Pritchard ceased to be a partner of Phillips Fox it is contended that the agreement was between Mr Pritchard in his personal capacity as a solicitor and San Kung Trading Ltd.
6 By paragraph (30) of the amended defence the defendant alleges that if it is held that there was an agreement between the plaintiff and the first defendant (which is denied) firstly, at all material times the plaintiff was not a solicitor or a solicitor corporation and did not hold a currently practising certificate; secondly, any work carried out or services provided by the plaintiff pursuant to such an agreement or part thereof, constituted general legal work within the provisions of s 48E of the Legal Profession Act 1987 (NSW) (as amended); thirdly, the carrying out of general legal work by the plaintiff was prohibited by s 48E and fourthly, the agreement alleged to exist between the plaintiff and the first defendant was void.
7 In relation to any alleged August 1996 agreement the first defendant alleges that the plaintiff has received payment of US$170,291.57. He alleges that it was a term of any agreement with the plaintiff that the balance of the amount of US$250,000 would be payable to the plaintiff upon completion of the work required to be carried out in relation to the forestry resource development project and that the work required by that project has not been completed.
8 The plaintiff has provided to the first defendant unverified discovery by list of documents dated 19 February 1999. The list of documents refers to documents which are contained in 9 lever arched folders. The first defendant has inspected the documents contained in these folders and has agreed that the documents contained in each folder do not need to be itemised nor identified in any other manner. This part of the list of documents that relates to those folders is adequate.
9 The gravamen of the plaintiff's complaint is that the discovery that has been given is inadequate in that the documents that are relevant to an issue in dispute have not been included in the list of documents. The plaintiff complained that after the first defendant identifies documents which have not been discovered further documents continue to be produced. Such documents included timesheets completed by Ms Potts, a diary belonging to the plaintiff which has not yet been produced, any retained agreements as between the plaintiff and sub-consultants and invoices.
10 The plaintiff submitted that there were only four issues to be decided, firstly, who were the parties to the contract; secondly, what were its terms; thirdly, what work was to be performed and fourthly, was the work legal work or not? The plaintiff submitted that firstly, it had discovered all relevant documentation; secondly, that to itemise all documentation would involve time and expense. It would cause further delay to the plaintiff in obtaining a hearing date to its detriment because the first defendant had no interest in permitting this matter to get to trial. Thirdly, the plaintiff submitted that the documents were relevant for the work done up to 24 September 1996 which is in accordance with a purported agreement of 8 August 1996.
11 Part 23 r 3(6) of the Supreme Court Rules relates to discovery and provides:
“(6) The list of documents shall:
(c) specify against the description of each document or group in part 2 of the list the person (if any) in whose possession the document or group of documents is believed to be;
(a) be divided into two parts, of which part 1 relates to documents in the possession, custody or power of party B, and part 2 relates to documents which are not, but were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B;
(b) include a brief description by reference to nature and date (or period) of each document or group of documents, and in the case of a group, the number of documents in that group;
(d) identify any document or group of documents which is claimed to be privileged, and specify:
(i) any provision of Part 3.10 of the Evidence Act 1995 under which the privilege is claimed to arise; or
(ii) the circumstances which it is claimed bring the document or group of documents within rule 1(c)(ii) or (iii).”
12 At least two agreements have been pleaded that of 18 May 1996 and 10 August 1996 in the statement of claim. The first defendant denies that there were such agreements and puts into issue whether the plaintiff breached implied terms of the contract in that work was not carried out promptly and efficiently. The first defendant also asserts that some of the work was not reasonably required for the purpose of the forestry resource development project, the contract had not been completed and it was void pursuant to s 48E of the Legal Profession Act 1987 because it involved legal work.
13 It is my view that the list of documents is inadequate. The diary of Mr Pritchard which is not referred to in the list of documents is relevant to the issues in dispute. As Mr Pritchard did not keep timesheets after 14 August, 1996 diary entries would be relevant to show the nature of the work he undertook on behalf of the defendant. Invoices have subsequently been located in storage in Mr Pritchard’s garage. Accounts rendered by Phillips Fox, Deloitte Touche, Tohmatsu and Cartier Newells were forwarded to the first defendant as late as 23 August 1999. The list of documents does not comply with Part 23 of the Rules. Part 2 of the schedule does not comply with Part 23 r 3(6). A statement such as “brief to counsel” is not sufficient. The list should be verified in accordance with Part 23 r 3(5). The plaintiff is required to serve a further list of documents within 21 days. The following orders sought in the motion are consequential orders that follow the supply of a further list of documents. I make orders in accordance with paragraphs (3) and (4) of the amended notice of motion which relate to the service of experts reports.
14 The first defendant unsuccessfully attempted to resolve the inadequacy of discovery prior to filing this notice of motion. Costs should follow the event. The plaintiff is to pay the first defendant’s costs of the motion.
15 The orders I make are:
(1) The portion of paragraph (2) of the notice of motion which refers to paragraph (15) of the orders of Master Malpass of 10 December 1998 is stood over before Master Malpass on a date to be fixed.(2) The plaintiff is to serve a further list of documents within 21 days. This list is to be verified.
(3) Orders in accordance with paragraphs (3) and (4) of the notice of motion filed 30 August 1999.
(4) The plaintiff is to pay the first defendant’s costs of the motion.**********
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