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:

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.

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.

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.

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.

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.

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.

Although an admitted director of the defendant company, Mr Frank Levy…

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 Southlink Holdings Pty Ltd v Morerand Pty Ltd

Details

AGLC: Southlink Holdings Pty Ltd v Morerand Pty Ltd [2005] VSC 196
Case: [2005] VSC 196
Decision Date: 8 June 2005

CaseChat Overview and Summary

The parties involved in this case were Southlink Holdings Pty Ltd and Morerand Pty Ltd. The nature of the dispute was related to the refusal of the plaintiff to answer certain interrogatories posed by the defendants. The matter was heard in the Supreme Court of New South Wales. The defendants sought an order that the plaintiff provide answers to their interrogatories, as well as costs, in the event that the plaintiff failed to comply with the orders.

The legal issue that the court had to decide was whether the plaintiff should be compelled to answer the interrogatories, or if some of the interrogatories were to be excluded due to being irrelevant or oppressive. The court also had to consider the appropriate costs to be awarded in the event that the plaintiff did not comply with the order.

The court held that certain interrogatories were irrelevant or oppressive and therefore should be excluded. However, the remaining interrogatories were considered relevant and not oppressive, and the court ordered the plaintiff to provide answers to these interrogatories. The court also awarded costs to the defendants in the event that the plaintiff did not comply with the order. The court found that the plaintiff's refusal to answer the interrogatories was unreasonable and unjustified, leading to the award of costs against the plaintiff. The court emphasised the importance of parties cooperating in the discovery process and the consequences of failing to do so.

Orders