Vecchio v Dominion Holdings No 54 Pty Ltd

[2000] VSC 550

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5805 of 2000

MARIO TONY PETER VECCHIO.	Plaintiff
v.
DOMINION HOLDINGS No. 54 PTY LTD	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 DECEMBER 2000
DATE OF JUDGMENT:	14 DECEMBER 2000
CASE MAY BE CITED AS:	MARIO TONY PETER VECCHIO v DOMINION HOLDINGS No. 54 PTY LTD
MEDIUM NEUTRAL CITATION:	[2000] VSC 550

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CATCHWORDS:      Practice and procedure – further discovery – relevance of documents.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H. Fraser	Nathan Kuperholz
For the Defendant	Mr A. Sandbach	Michael Richards

HIS HONOUR:

1. This proceeding was instituted in the Court on 24 March of this year.  On 14 November it came before the Listing Master for a final directions hearing.  On that occasion the Listing Master fixed the proceeding for trial on 15 May 2001 on an estimate of duration of three to four days.

1. Within days of that order and on 16 November 2000 the defendant filed a summons in the Court by which it seeks further discovery from the plaintiff.  That summons came before a Master of the Court on 6 December.  The Master dismissed the summons.  In doing so he recorded on the Court record that he completed that day: 

"It is my view that discovery of documents relating to the purchase of another property by the plaintiff at a considerable distance from the land the subject of this proceeding is not required.  The application for such discovery is merely a fishing expedition."

1. As I think I indicated, the Master dismissed the application and ordered that the defendant pay the plaintiff's costs.

1. On 8 December the defendant filed a notice of appeal in the Court from that order to a Judge of the Court.  It is that appeal which is now before me.

1. The Statement of Claim filed on behalf of the plaintiff alleges that on 30 June 1999 the defendant sold to the plaintiff Lot 2 on a proposed three lot plan of subdivision of land at 54 Mont Albert Road, Canterbury for the price of $1.6 million.  The contract provided for the payment of a deposit of $160,000 with the balance of purchase money to be paid 365 days later or within 14 days of the registration of the proposed three lot plan of subdivision, whichever was the later date.  The plaintiff duly paid to the defendant or the defendant's agent the deposit of $160,000.

1. The contract of sale was conditional upon approval or registration by the Registrar of Titles on or before 30 June 2000 of the three lot plan of subdivision in the form of the three lot plan of subdivision attached to the contract.

1. What occurred thereafter, according to the plaintiff, is that the defendant ultimately sought and obtained approval of a subdivision of the land into not three but four lots.  The sale of the original Lot 2 to the plaintiff included the provision of easements and covenants, one of which was that the structures to be erected on Lot 3 would not, as I understand it, be closer than 20 metres from the boundaries of Lot 2 and the structure on Lot 2 would not be further forward than 52 metres of the southern boundary of Lot 2.  At all events, in the new subdivision the structure to be built on Lot 3, as I understand it, will be within 2 metres not 20 metres of the structure to be built on Lot 2.

1. The plaintiff complains of a number of other features of the subdivision of the property as now proposed by the defendant by comparison with the subdivision of the property when he purchased Lot 2 and he alleges that by those changes the defendant has, in fact, repudiated his contract.

1. On 29 February of this year the plaintiff's solicitors wrote to the defendant's solicitors accepting that repudiation and seeking a return of the $160,000 deposit.  The defendant has refused to return the deposit, hence the present proceeding.

1. The further discovery sought by the defendant relates to another property quite some distance away which it alleges the plaintiff agreed to purchase some three months after he entered into the contract to purchase Lot 2.

1. In my opinion, any documentation relating to a subsequent purchase by the plaintiff of another property is quite irrelevant to the issues between the parties in this proceeding.  This proceeding will be determined according to the documentation the parties signed in relation to the sale and purchase of Lot 2.  The fact that the plaintiff having declined to proceed with that purchase for the reasons I have endeavoured to indicate then later purchased another property, in my opinion, is as best a matter of cross-examination as to the plaintiff's credit.  I can see no error on the part of the Master's finding in relation to the matter and for that reason I dismiss the appeal.  I would also dismiss it, in any event, on the basis that this proceeding was before the Listing Master for directions on 22 August last, 17 October last and 14 November last when it was fixed for trial and no such application was made to the Listing Master on any of those occasions.

1. The appeal will be dismissed with costs to be taxed and paid by the defendant.

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