Southlink Holdings Pty Ltd v Morerand Pty Ltd

[2005] VSC 196

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 6363 of 2004

SOUTHLINK HOLDINGS PTY LTD	Plaintiffs
v
MORERAND PTY LTD	Defendant

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2005
DATE OF JUDGMENT:	8 June 2005
CASE MAY BE CITED AS:	Southlink Holdings Pty Ltd v Morerand Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 196

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Practice – Refusal by plaintiff to answer defendants interrogatories – Certain interrogatories excluded otherwise ordered that answers be provided.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Wise	Mills Oakley Lawyers
For the Defendant	Mr R. Rosenburg	Sackville Wilks & Co

HIS HONOUR:

1. This is an application by the defendant, Morerand Pty Ltd (“Morerand”), seeking answers by the plaintiff Southlink Holdings Pty Ltd ("Southlink") to interrogatories dated 25 February 2005. 

1. The unusual circumstances which have resulted in this Court, rather than a Master, having to determine this matter, whilst unfortunate, are not now relevant.  Suffice it to say that applications such as this one should not be heard by the Practice Court at first instance.

1. The claim itself has some unusual features which are relevant to this application.  In essence, the plaintiff, Southlink, alleges an agreement made in or about late 1994 to February 1995 whereby it entered into a joint venture to develop certain land at Baxter owned by an associate company, Walman Kenny Pty Ltd.  The contract is alleged to have been concluded by Paul Harpur on behalf of Southlink and Peter Rand on behalf of Morerand.  The essence of the agreement, as pleaded, was that Morerand would purchase the land for $175,000 from the associate of Southlink and pay all third party expenses incurred in its rezoning and that the profit on resale would be shared equally between Southlink and Morerand.  The consideration moving from Southlink appears to be that it would procure its associate, Walman Kenny Pty Ltd, to sell the land and that it would procure its director Paul Harpur to provide expertise in the rezoning. 

1. The making of this joint venture agreement is put in issue by Morerand.  It is, however, supported to some extent by a document apparently in Mr Rand’s handwriting dated 16 February 1995. 

1. Since the date of the alleged joint venture agreement the following events occurred, according to the pleadings:

20 March 1995	The land was transferred from Walman Kenny to Morerand.
7 October 1997	Peter Rand died.
12 February 1999	Morerand sold the land.
3 June 2004	Writ issued.

1. It was submitted on behalf of the defendants that, having regard to the fact that the proceeding was not commenced until some nine years after the suggested agreement and nearly seven years after the death of Mr Rand, the Court should view the claim with caution and should be ready to allow extensive interrogation so that the defendant may make an assessment of the claim and prepare its defence.

1. Although an admitted director of the defendant company, Mr Frank Levy (a solicitor with Sackville Wilks & Co) knew of the purchase of the land by Mr Rand and was concerned in the conveyancing, it is denied that he knew of any joint venture or its alleged terms.  There is no specific material to contradict that assertion.  Further, as became clear in argument, the authorship of a number of documents the subject of discovery by the plaintiff is unclear.  Other documents raised questions as to the extent to which disbursements incurred by the plaintiff may be directly attributable to activities relating to the attempted rezoning of the Baxter land.  In all the circumstances I agree with the submission of the defendant.  I reject the contention that the interrogatories, as a whole, are oppressive (as that concept is distilled from the various authorities on this subject). 

1. Accordingly, I propose to order that the plaintiff answer the defendant's interrogatories. 

1. I have considered whether that should be an end to the matter with any objections to individual interrogatories being taken by the deponent in the course of providing answers, although I do not doubt that the Court has the inherent power to undertake the process of passing judgment on individual interrogatories.  On balance, and in deference to the time spent in argument on the appropriateness of specific interrogatories, and in the hope of sparing the parties from further interlocutory litigation, I have decided to indulge in some judicial filleting. 

Interrogatories 5, 6, 7 and 8

1. In my view these interrogatories are too wide, they cover a canvass which is much more extensive than appears in the particulars given in the statement of claim.

Interrogatories 10 and 11

1. These interrogatories are allowable, they concern the performance by the parties of the suggested joint venture agreement. 

Interrogatories 14 and 15

1. These interrogatories are too wide.

Interrogatory 16

1. This interrogatory is oppressive.  It does not specify the nature of the requirement. 

Interrogatory 26

1. This is allowable.  The objection that is directed to evidence is not a good one.

Interrogatory 32

1. This interrogatory is allowable.

Interrogatory 33

1. This interrogatory is allowable.  It is relevant to the allegation in paragraph 7 of the statement of claim which is put in issue.  It may, for example, be that the consultants were not retained by Southlink. 

Interrogatory 43

1. Parts (a) to (c) are allowable.   Parts (d), (e) and (f) - the objection that these do not go to a matter in issue is made out.  They will be disallowed. 

Interrogatories 44(a)-52(a), 55(a), 56(a), 59(a)-61(a)

1. These interrogatories are allowable.  The identity of the person responsible for these documents is relevant to their proof.

Interrogatory 66

1. This interrogatory is not allowable.  Although the plaintiff must prove its loss, mitigation is not put in issue in the defence. 

Interrogatory 67-70

1. These interrogatories are not allowable.  Insofar as they enquire after Southlink’s contentions they are not proper interrogatories.  Insofar a they enquire after the underlying facts, they require Southlink to express an expert opinion which it is not obliged to do.

1. In conclusion, therefore, I will order the plaintiff answer all of the interrogatories other than the following:  Interrogatories 5, 6, 7, 8, 14, 15, 16, 66, 67(b), 68, 69 and 70.

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