Sims Sales and Marketing Pty Ltd v Westate Piping Services Pty Ltd
[2007] WADC 196
•7 NOVEMBER 2007
SIMS SALES AND MARKETING PTY LTD -v- WESTATE PIPING SERVICES PTY LTD [2007] WADC 196
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 196 | |
| Case No: | CIV:1297/2007 | 26 OCTOBER 2007 | |
| Coram: | REGISTRAR KINGSLEY | 6/11/07 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | SIMS SALES AND MARKETING PTY LTD WESTATE PIPING SERVICES PTY LTD |
Catchwords: | Practice Application for specific discovery |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WESTATE PIPING SERVICES PTY LTD
Defendant
Catchwords:
Practice - Application for specific discovery
Legislation:
Nil
Result:
Application allowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M J Ahern
Defendant : Mr A D Wilson
Solicitors:
Plaintiff : Aherns Lawyers
Defendant : Frichot & Frichot
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 REGISTRAR KINGSLEY: By an application dated 24 July 2007 the plaintiff seeks specific discovery from the defendant. The plaintiff seeks:
• Turco and Co Pty Ltd ("Turco") accountant's files for the defendant with either a hard copy or electronic format.
• All accounts and financial returns for the defendant held by Turco.
• All notes, memorandum and records held by Turco for the defendant as accountants for the defendant.
2 The plaintiff in the statement of claim pleads that prior to 16 March 2006 BLS Industries Pty Ltd ("BLS") was the trustee of the BLS Unit Trust trading as Cobey Industries. The plaintiff and the defendant each held one share in BLS and their combined shareholding comprised 100 per cent of the issued share capital BLS.
3 The plaintiff pleads that the plaintiff and defendant were co-owners in equal shares of items of equipment ("the equipment") and BLS leased or alternatively hired the equipment from the plaintiff and the defendant. The plaintiff pleads that since 16 March 2006 the defendant has wrongfully claimed exclusive possession of the equipment. By a unit and share purchase deed dated 16 March 2006 the defendant agreed to purchase all of the plaintiff's units in the trust and the plaintiff's single share in BLS. The plaintiff pleads the defendant has had the exclusive control of BLS and assumed exclusive possession of the equipment without payment to the plaintiff of the plaintiff's share as equal co-owner with the defendant of the reasonable leasing or alternative hiring fee in relation to the equipment.
4 In its defence dated 15 September 2006 the defendant broadly denies the plaintiff's allegations.
5 In support of the application for specific discovery Mark Sims ("Sims") in an affidavit sworn 24 July 2007 deposes that Turco have been the accountants for BLS since April 2001. Sims deposes that prior to 16 March 2006 BLS leased the equipment from the plaintiff and defendant and it was agreed between Sims and Leon Bertei the sole director of BLS Industries that BLS would pay market rates for the leasing/hiring of the equipment. Sims deposes that since March 2006 the defendant has wrongfully claimed exclusive possession and has leased it to BLS Industries without the permission of the plaintiff and without payment to the plaintiff.
(Page 4)
6 Thus Sims deposes that Turco files and documents are extremely pertinent to the matters in issue as the files and documents will detail the ownership interests of both the plaintiff and the defendant in the equipment. Sims then goes on to detail by reference to specific documents in the defendant's list of documents evidence of the fact that the Turco files will include documents that go to the ownership issues.
7 Leon Bertei in an affidavit sworn 15 August 2007 opposes the application on the grounds that the terms which the orders are sought are impossible for the defendant to comply. Bertei deposes that the orders sought are futile because they lack sufficient specificity to enable them to be complied with. In addition Bertei deposes that the defendant's present accountant, David Tilley has requested the general journals and working papers but that request has been declined because Turco consider that those records are their property. David Tilley of Accord Group (WA) Pty Ltd in a letter dated 26 April 2006 annexed to Bertei's affidavit suggests that the general journals working papers are part of the records that form the books upon which financial statements and tax returns are created.
8 In my opinion the plaintiff has demonstrated through his affidavit that the class of documents sought to be discovered are relevant by their character. An issue between the parties is the ownership of the equipment and the working papers may well go to that ownership issue. In my opinion that makes the documents relevant. In addition the chamber summons is sufficiently specific to enable the Defendant to know what documents are sought.
9 It would appear that requests have been made of Turco to release those documents but that there may be an issue as to ownership of the record. That does not, in my opinion, make the application futile as that question may be deposed to in the list of documents by Bertei. That then, in my opinion, lays the foundation for any further applications that may be made by the plaintiff to gain access to those documents.
10 Accordingly, I am of the opinion that the plaintiff has satisfied me that the documents are relevant to matters in issue and that the defendant is to provide specific discovery of the documents sought in the plaintiff's chamber summons.
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