Schofields Property Development Pty Ltd v Lindsay-Owen - [2014] NSWSC 220

Supreme Court

New South Wales

Medium Neutral Citation: Schofields Property Development Pty Ltd v Lindsay-Owen [2014] NSWSC 220
Hearing dates: 7 March 2014
Decision date: 12 March 2014
Jurisdiction: Equity Division - Commercial List
Before: Stevenson J
Decision:
Exceptional circumstances not established

Catchwords: PROCEDURE - interlocutory issues - disclosure of documents - Practice Note SC Eq 11 - parties have not yet served all evidence - whether documents necessary to enable expert to conclude report - applicant has exercised contractual entitlement to documents from one cross defendant - whether exceptional circumstances established in relation to other cross defendant
Legislation Cited: Practice Note SC Eq 11
Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393
Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2012] NSWSC 913
Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458
RSA (Moorvale Station) Pty Ltd v VDM CCE Pty Ltd [2013] NSWSC 534
SkyMesh Pty Ltd v Ipstar Australia Pty Ltd [2012] NSWSC 696
Category: Interlocutory applications
Parties: Gregory Hamilton Willoughby Lindsay-Owen (First Applicant/First Defendant/First Cross Claimant)
Dairycorp Pty Ltd (Second Applicant/Second Defendant/Second Cross Claimant)
Schofields Property Development Pty Ltd (First Respondent/Plaintiff/First Cross Defendant)
Villawood Management Pty Ltd (Second Respondent/Second Cross Defendant)
Representation: Counsel:
M Dicker SC (Applicants/Defendants/Cross Claimants)
L V Gyles SC with P M Knowles (Respondents/Plaintiff/Cross Defendants)
Solicitors:
HWL Ebsworth Lawyers (Applicants/Defendants/Cross Claimants)
Clayton Utz (Respondents/Plaintiff/Cross Defendants)

File Number(s): SC 2013/215845
Publication restriction: Nil

Judgment

Introduction

By notice of motion filed on 9 December 2013 the Cross Claimants, Mr Lindsay-Owen and Dairycorp Pty Ltd, seek an order that the Cross-Defendants, Schofields Property Development Pty Ltd and Villawood Management Pty Ltd, disclose certain documents.

As the parties have not yet served all their evidence, I must have regard to Practice Note SC Eq 11 which at [4] provides:

"The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure."

Decision

The Cross Claimants have not established exceptional circumstances. Their notice of motion of 9 December 2013 should be dismissed.

Background

The Cross Claimants own land at Blacktown. On 29 March 2010 the Cross Claimants entered into a Joint Venture Agreement with Schofields, a property developer, to develop the land. On the same day the Cross Claimants and Schofields entered into a Project Management Agreement with Villawood, a project manager.

Under the Joint Venture Agreement, Schofields was entitled to a particular interest in the land if, as happened, relevant planning approval was not obtained for the proposed development by 29 September 2012.

The Cross Claimants allege that, in failing to obtain the planning approval by 29 September 2012, Villawood acted in breach of the Project Management Agreement and that Schofields acted in breach of the Joint Venture Agreement and its alleged fiduciary duty to the Cross Claimants.

The Cross Claimants claim that they are…

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.

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Details

Case: [2014] NSWSC 220
Decision Date: 12 March 2014

CaseChat Overview and Summary

The case involved Schofields Property Development Pty Ltd as the applicant and Lindsay-Owen as the respondent, with several cross-defendants. The matter was heard in the Supreme Court of New South Wales, Equity Division. The dispute centred around the disclosure of documents necessary for the applicant to instruct an expert witness. Specifically, the applicant sought an order for the respondent to disclose certain documents to enable the expert to complete their report. At the time of the application, the applicant had not yet served all evidence, and some documents were still outstanding.

The legal issues before the court were whether the documents were necessary to enable the expert to complete their report, and whether exceptional circumstances existed to warrant the disclosure of documents from the cross-defendants. The applicant had exercised its contractual right to obtain documents from one of the cross-defendants, but had not done so for the other cross-defendant. The court had to determine whether the applicant had established exceptional circumstances to compel the disclosure of documents from the second cross-defendant.

In delivering the judgment, the court noted that the applicant had already obtained the necessary documents from one cross-defendant, and had not demonstrated exceptional circumstances to compel the disclosure of documents from the second cross-defendant. The court held that the applicant had not satisfied the threshold for establishing exceptional circumstances under Practice Note SC Eq 11. The court emphasised the importance of the parties fulfilling their obligations to disclose documents in a timely manner, and the need for the applicant to exercise its contractual rights to obtain documents from the cross-defendants. The application for an order compelling disclosure of documents from the second cross-defendant was dismissed.

The final orders of the court were that the applicant was to pay the respondent's costs of the application, and that the applicant was to pay its own costs of the application. The court made no order as to costs between the applicant and the second cross-defendant. The court's decision highlights the importance of parties fulfilling their obligations to disclose documents in a timely manner, and the need for applicants to establish exceptional circumstances to compel disclosure of documents from third parties.

Orders