Tah Land Pty Ltd v Sheridan Holdings Pty Ltd

[2000] WASC 145

TAH LAND PTY LTD -v- SHERIDAN HOLDINGS PTY LTD & ORS [2000] WASC 145

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 145
Case No:	CIV:2284/1997	Heard:	30 MAY 2000
Coram:	MASTER SANDERSON	Delivered:	7/06/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for leave refused
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Parties:	TAH LAND PTY LTD SHERIDAN HOLDINGS PTY LTD HAROLD JAMES WILLIAM MISSEN LILA ALEXANDRA MISSEN
Catchwords:	Practice and procedure Application for leave to administer interrogatories Turns on its own facts
Legislation:	Rules of the Supreme Court, O 27 r 1 Trade Practices Act, s 51A, s 52
Case References:	Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550 Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 Hall v Truman, Hanbury & Co (1885) 29 Ch D 307 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 Hoad v Nationwide News Ltd (1998) 19 WAR 468 Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TAH LAND PTY LTD -v- SHERIDAN HOLDINGS PTY LTD & ORS [2000] WASC 145 CORAM : MASTER SANDERSON HEARD : 30 MAY 2000 DELIVERED : 7 JUNE 2000 FILE NO/S : CIV 2284 of 1997 BETWEEN : TAH LAND PTY LTD

Plaintiff

AND

SHERIDAN HOLDINGS PTY LTD
First Defendant

HAROLD JAMES WILLIAM MISSEN
LILA ALEXANDRA MISSEN
Second Defendants

Catchwords:

Practice and procedure - Application for leave to administer interrogatories - Turns on its own facts

Legislation:

Rules of the Supreme Court, O 27 r 1

Trade Practices Act, s 51A, s 52

Result:

Application for leave refused

(Page 2)

Representation:

Counsel:

Plaintiff : Ms S J Gepp
First Defendant : Mr A J N Aristei
Second Defendants : Mr A J N Aristei

Solicitors:

Plaintiff : Hotchkin Hanly
First Defendant : B W Duckham & Co
Second Defendants : B W Duckham & Co

Case(s) referred to in judgment(s):

Dalecoast Pty Ltd v Monisse [1999] WASCA 103

Case(s) also cited:

Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550
Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221
Hall v Truman, Hanbury & Co (1885) 29 Ch D 307
Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699
Hoad v Nationwide News Ltd (1998) 19 WAR 468
Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32

(Page 3)

1 MASTER SANDERSON: This is the first and second defendants' application for leave to administer interrogatories. A minute of proposed interrogatories dated 28 March 2000 accompanied the application. The application is brought under O 27 r 1.

2 To put the interrogatories in context, it is necessary to say something of the nature of the action between the parties. The plaintiff was at all material times the owner of retail premises known as Kingsway City Shopping Centre. The plaintiff alleges that the first defendant agreed to lease three shops in the shopping centre from the plaintiff. The first defendant's obligations under the lease agreement were, it is alleged, guaranteed by the second defendants. It is further alleged by the plaintiff that the first defendant has failed to make rental payments due and that, accordingly, the first and second defendants are liable to the plaintiff for these payments.

3 Both defendants deny that they are liable to the plaintiff. By their defence they deny that there was any concluded lease agreement, so that any occupation of the shopping centre by the first defendant was pursuant to a tenancy at will which has been terminated and with respect to which the first defendant has no liability to the plaintiff. The defendants then raise a counterclaim against the plaintiff. This counterclaim is put on a number of different grounds. First, it is said that certain representations were made by the plaintiff through its agent to the first defendant which were misleading or deceptive, contrary to s 52 of the Trade Practices Act. Secondly, it is said that these same representations were representations as to future matters and were made by the plaintiff's agent without reasonable grounds, contrary to s 51A of the Trade Practices Act. Finally, it is said with respect to these representations that they were made negligently and in breach of the plaintiff's duty of care to the defendant. The defendants say that these causes of action give rise to a claim for damages and a right to have any lease agreement declared void ab initio, pursuant to the provisions of the Trade Practices Act.

4 Central to the defendants' counterclaim and to this application for leave to administer interrogatories is par 15 of the counterclaim. It is in the following terms:

"15. During December 1995 the Plaintiff, by its agent, Messrs Colliers Jardine, in order to induce the First Defendant to make an offer to lease and enter into possession of the premises, made the following representations to the First Defendant, and thereby the Second Defendants, namely:

(Page 4)

(a) that there would be located at or near the proposed tenancy of the First Defendant ('the proposed tenancy') a medical centre which would attract after hours clientele;

(b) that there would be located in the property close to the proposed tenancy a laundromat which would attract after hours clientele;

(c) that there would be located in the property close to the proposed tenancy a pharmacy which would trade outside core hours and that the said pharmacy premises had been leased;

(d) that there would be located in the property a food hall close to the proposed tenancy which would trade outside core hours;

(e) that there would be located in the property close to the proposed tenancy a combination Collins Bookstore/Australian Geographic/ABC/Newsagency and Lotto outlet which would attract substantial clientele to the benefit of the First Defendant;

(f) that there would be located in the property a liquor store which would attract after hours clientele and that the said liquor store premises had been leased.

(g) that there would be located in the property at or near the proposed tenancy three automatic teller machines.

(h) that major lettings in the property had been leased to BIG W and Woolworths."

5 In response to par 15 of the counterclaim the plaintiff pleads par 4 of its amended reply and defence to counterclaim. That paragraph is in the following terms:

"4. Save that the Plaintiff says that its agents, Messrs Colliers Jardine, informed the Second Defendants that:

(Page 5)

(a) the Plaintiff had been negotiating with prospective tenants for the future medical centre to be located on the south east entry to the carpark to the shopping centre;

(b) the Plaintiff was negotiating with two separate prospective tenants for shop 38, both of whom intended to carry on a laundromat and drycleaning business;

(c) the pharmacy to be located opposite the First Defendant's proposed tenancy had been let;

(d) a hall comprising a food hall would be located at the rear of the First Defendant's proposed tenancy;

(e) the Plaintiff had been negotiating with Collins Booksellers in respect of a Collins Bookshop containing sub-agencies;

(f) that subject to a liquor licence being granted to the proposed tenant, the shop location on the north western corner of the shopping centre had been leased

the Plaintiff otherwise denies each and every allegation in paragraph 15 of the Amended Counterclaim."

6 At first reading, par 4 seems to be an improper plea in response to par 15 of the counterclaim. After all, what the plaintiff is doing is denying that the representations pleaded in par 15 of the counterclaim were made by the plaintiff or its agent. A simple denial would have sufficed. However, I think what is pleaded in par 4 can be explained by reference to par 5 of the reply. That paragraph pleads that two paragraphs of par 4, they being sub-par 4(c) and 4(f), were representations as to future matters. Paragraph 5 then goes on to provide particulars as to how it was that the plaintiff's agent had reasonable grounds for making the predictions. Clearly, what the plaintiff had in mind is the provisions of s 51A of the Trade Practices Act. The effect of that section is to cast the onus upon the plaintiff to establish that any predictions which were made were made on reasonable grounds. To make out the plea that the predictions were made on reasonable grounds, the plaintiff must first establish what those predictions were. In any event, leaving proper pleading practice to one side, what par 4 does is set up what the plaintiff

(Page 6)

says were the representations made by its agent. The effect of par 4 in its present form, when set against par 15 of the counterclaim, is to demonstrate clearly the differences between what the plaintiff and the first defendant says were the representations made to the first defendant by the plaintiff's agent.

7 Before dealing with these particular interrogatories I should say something generally about the grant of leave to administer interrogatories. I would repeat again, with respect, what was said by Owen J in Dalecoast Pty Ltd v Monisse [1999] WASCA 103 ([5] - [6]):

"It is often the case that the benefit to be obtained from delivering interrogatories is far outweighed by the inconvenience and expense to the other party in having to answer them. As a mechanism for understanding the case which a party has to meet that have, at least to some extent, been replaced by the pre-trial exchange of witness statements which is ordered in most cases. The standard form of pre-trial documents orders means that a party will seldom go to trial not knowing what documents it has to prove strictly.

These are developments that have occurred in recent times and the present regulatory framework for interrogatories has to be seen against that background. In the 1996 amendments to the Rules of the Supreme Court there was a significant change to the regime for interrogatories. It is now necessary to obtain leave before any interrogatories are administered. ... The leave regime is administered with case management principles in mind. Considerable thought needs to be given to whether it really is necessary to administer interrogatories consistent with the principles enshrined in O 1 r 4B. If they are considered necessary, great thought must go into framing them so that they achieve the objective for which they are designed without putting the other party to unnecessary trouble and expense. They must cover the ground that the party concerned wants to cover. ... "

8 The interrogatories proposed by the defendants in this case are six in number, but contained within the six questions are numerous sub-questions and sub-sub-questions. The interrogatories run to 21 pages and if all were to be answered, a total of 135 responses, or thereabouts, would be required. I would be disinclined to grant leave on the basis that the request is prolix and oppressive. Counsel for the plaintiff opposed the

(Page 7)

grant of leave on both these grounds and there is substance in the objection.

9 Even leaving those two issues to one side, I am not satisfied that these interrogatories are necessary. To succeed under the Trade Practices Act the defendants need to establish that the representations pleaded in par 15 of the counterclaim were made by the plaintiff's agent. The interrogatories are directed at what is pleaded by the plaintiff in par 4 of the reply. In other words, the interrogatories address very much a peripheral issue. Moreover, this is a case where prior to trial there will almost inevitably by an order for the exchange of witness statements. The defendants will then be in a position of knowing not only which witnesses the plaintiff intends to call, but what each of those witnesses will say. Presumably, the witness statements will address what is in par 4 of the reply. It would be extraordinary if they did not do so. That will allow the defendants to ascertain the case that they have to meet and any evidence they need to marshal to respond to the plaintiff's case.

10 I am not satisfied that this is a case where it is appropriate to allow the defendants to administer interrogatories, certainly not in the form of the present minute. I would refuse leave. The chamber summons will be dismissed. The defendants should pay the plaintiff's costs of the application, including reserved costs in any event.