Tracenia Nominees P/L v Centro Properties Ltd - [1993] FCA 996

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996 1 % I

JUDGMENT NO. .sS,mnnmssasn.n * 81.) !

PRACTICE AND PROCEDURE - Discovery - alleged misrepresntation

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conveyed to third party - whether third party induced to act -

requirement of an inducing cause - non-party discovery - non-

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party closely related to respondent - costs.

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Federal Court Rules 0.15 r.8, 0.15A r.8.

Gould v Vage l las (1985) 157 CLR 215

Kennedy v Dodson [l8951 1 Ch 334

George Ba l lan t ine and Son Ltd v F E R Dixon and Son Ltd [l9741

1 WLR 1125

Richardson P a c i f i c L imi ted v F ie ld ing (1990) 26

FCR

188

REGISTRY

Tracenia Nominess Ptv Ltd v Centro Pro~erties

Limited and Anor

(No. WAG 63 of 1993)

Judge :

Heerey J

Date:

10 December 1993

Place:

Perth

- 6 J A N 1994

.-EDERAL COURT OF , - - I
AUSTRALIA PRINCIPAL

IN TEE FEDERAL COURT OF AUSTRALIA	1
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DMSION	1
B E T W E E N :

TRACENIA NOMINEES PTY LTD
A C N 009 006 740

Applicant

and
CENTRO PROPERTIES LIMITED
A C N 006 378 365

First Respondent

and
NEIL STEDMAN

Second Respondent

JUDGE :	Heerey J
m:	10 December 1993
PLACE :	Perth

MINUTES OF ORDERS

1. There be an order in terms of the Applicant's motion dated 26 November 1993 for particular discovery.
2. There be an order in terms of the Applicant's motion filed 6 December 1993 for non-party discovery.

3. The respondents pay the costs of the two motions, including revenue costs.

In relation to the motion for non-party discovery, the costs of the non-party be reserved and liberty to apply is reserved in relation to these costs.

NOTE :

Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules

IN TEE FEDERAL CO-'JRT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY	)	NO. WAG 63 of 1993
GENERAL DIVISION	1
B E T W E E N :

TRACENIA NOMINEES PTY LTD
A C N 009 006 740

Applicant

and
CENTRO PROPERTIES LIMITED
A C N 006 378 365

First Respondent

and
NEIL STEDMAN

Second Respondent

JUDGE :	Heerey J
m:	10 December 1993
PLACE :	Perth

EX TEMPORE REASONS FOR JUDGMENT

The applicant seeks, under 0.15 r.8, particular discovery in relation to certain documents described in its notice of motion dated 26 November 1993.

The applicant held a lease of a shop at the Mandurah Forum

Shopping Centre for a term of five years from 28 February 1988 to 28 February 1993. The applicant conducted a newsagency business at the shop. No new lease was granted upon the expiry of the term. The applicant's complaint is that the refusal to grant a new lease by the landlord Uppsala Pty Limited was due to a misrepresentation by the second respondent, Neil Stedman, to the landlord that the applicant had, in the…

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: [1993] FCA 996
Decision Date: 10 Dec 1993

CaseChat Overview and Summary

Tracenia Nominees Pty Ltd sought an order for discovery against Centro Properties Limited and Neil Stedman. The dispute arose from the refusal of the landlord to renew the lease of a shop at the Mandurah Forum Shopping Centre, allegedly due to a misrepresentation by Stedman regarding a promise to re-fit the shop. Tracenia sought to discover various documents, including Colin Round's contract of employment and records related to lease renewal decisions. The court had to determine whether the discovery requests were relevant and necessary for the case, and whether the documents from the non-party landlord should be ordered under the new non-party discovery rule. The court found that the documents sought were relevant to the central issue of whether the non-performance of the alleged promise to re-fit influenced the decision not to grant a new lease. The court also found that the non-party landlord, Uppsala Pty Limited, should provide the requested documents as they were directly related to the decision not to renew the lease.

The court ordered the respondents to pay the costs of the discovery motions, reserving the costs for Uppsala Pty Limited for potential future application. The reasoning of the court was based on the principle that documents need not be admissible to be discoverable if they lead to a line of inquiry that could support or damage the case. The court also noted that the relationship between the parties did not prevent the landlord from being required to provide documents under the new rule for non-party discovery.

Orders