W J Green and Co (1984) Pty Ltd v Tace Pty Ltd [No 2]
[2008] WASC 82
•12 MAY 2008
W J GREEN & CO (1984) PTY LTD -v- TACE PTY LTD [No 2] [2008] WASC 82
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 82 | |
| Case No: | CIV:2329/2006 | 8 APRIL 2008 | |
| Coram: | MASTER SANDERSON | 12/05/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Action removed from Inactive Cases List Further discovery ordered | ||
| B | |||
| PDF Version |
| Parties: | W J GREEN & CO (1984) PTY LTD (ACN 008 851 867) GRAEME WILLIAM GREEN TACE PTY LTD (ACN 009 204 915) WESTERN AUSTRALIAN REAL ESTATE CUSTODIAN LTD (ACN 069 896 966) AUSTRALIAN REAL ESTATE INVESTMENTS LTD (ABN 64 076 608 681) |
Catchwords: | Practice and procedure Application to remove action from Inactive Cases List Application for further and better discovery Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
GRAEME WILLIAM GREEN
Second Plaintiff
AND
TACE PTY LTD (ACN 009 204 915)
First Defendant
WESTERN AUSTRALIAN REAL ESTATE CUSTODIAN LTD (ACN 069 896 966)
Second Defendant
AUSTRALIAN REAL ESTATE INVESTMENTS LTD (ABN 64 076 608 681)
Third Defendant
Catchwords:
Practice and procedure - Application to remove action from Inactive Cases List - Application for further and better discovery - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Action removed from Inactive Cases List
Further discovery ordered
Category: B
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
First Defendant : Mr T Galic
Second Defendant : Mr T Galic
Third Defendant : Mr T Galic
Solicitors:
First Plaintiff : Lavan Legal
Second Plaintiff : Lavan Legal
First Defendant : Galic & Co
Second Defendant : Galic & Co
Third Defendant : Galic & Co
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: These reasons deal with two applications. The first in time was the defendants' application filed 20 March 2008 to have the matter removed from the Inactive Cases List (the List).
2 On 3 April 2008, I made that order and reserved the question of costs. I indicated at the time that I would publish reasons for my decision and these are those reasons.
3 The second application is by the plaintiffs and was filed on 11 April 2008. That application requires the third defendant to provide what amounts to further and better discovery. This application was foreshadowed at the hearing on 3 April when I indicated that I would make the orders sought. Again, I indicated that I would publish reasons for making the orders. These are those reasons. I have also dealt with the question of costs.
4 On 12 February 2008, Registrar Dixon made the following case management order:
Unless the parties give discovery on oath by 4 March 2008 the action be entered into the Inactive Cases List.
5 The plaintiffs complied with that order. The defendants did not. Accordingly, in rather unusual circumstances, the matter went on to the List. Much to the credit of the defendants, realising what had occurred, it was they that sought the order that the matter be removed from the List. Not surprisingly, the plaintiffs had no objection to that order being made. Accordingly, the matter was removed from the List.
6 That leaves the question of costs.
7 The matter went on to the List because of the default of the defendants. An affidavit has been filed by the defendants' solicitor Tihomir Galic sworn 20 March 2008 explaining the reasons for the delay. Essentially, it is said that pressure of work on a sole practitioner was such that time was not available to comply with the orders. In particular, the solicitor had court commitments in New South Wales which took him out of the jurisdiction and limited his capacity to comply with the orders. It is possible to have sympathy for a busy sole practitioner attempting to juggle competing demands. But the fact is the order was made, it provided plenty of time within which discovery should be given and it was not complied with. The only party who could have possibly benefited by the failure to comply with that order were the defendants.
(Page 4)
8 In the circumstances, I am satisfied that the defendants ought pay the costs of the application, including reserved costs, such costs to be taxed and paid forthwith. I would not order that the costs be on an indemnity basis. I think the affidavit of the defendants' solicitor makes plain that he attempted to comply with the order and the circumstances are not such as to justify an indemnity costs order.
9 Turning then to the plaintiffs' application for further and better discovery, the orders sought were:
1. Within 7 days the defendant provide discovery on oath of all documents relevant to and relating to:
(a) the receipt by the third defendant of the proceeds of the sale of the Summerfield Shopping Centre; and
(b) the utilisation or disposition of those funds.
2. The third defendant pay the plaintiffs' costs in respect of this application on an indemnity basis.
10 This action, commenced in 2006, is the latest instalment of what has proved to be a long-running and intractable dispute between these parties. The present action arose because the third defendant sold the Summerfield Shopping Centre. What the plaintiffs are attempting to do by these proceedings is find out what became of the proceeds of sale of the shopping centre to ensure that they can lay claim to any funds to which they are entitled.
11 As I understand the defendants' position, they say that to give discovery as sought by the plaintiffs would, in effect, amount to giving the plaintiffs the relief they seek in the proceedings. That is, discovering the particular documents which show where the funds went and by whom they are held.
12 The obligations of a party in relation to discovery are well understood and need no repetition. A party must discover all documents that are related to a matter in issue between the protagonists. The whereabouts of the funds provided on sale of this shopping centre is clearly a matter related to an issue in question between the parties. The documents must therefore be discovered. There is no merit at all in the defendants' complaints as to the effect of discovery.
13 Clearly, the plaintiffs are entitled to their costs. However, I am not satisfied that the situation is such that the costs should be made payable on
(Page 5)
- an indemnity basis. They should be paid by the third defendant in any event. Further, a period of seven days is, I think, unreasonable. The third defendant should have 14 days to file a supplementary affidavit of discovery.
14 With these amendments, I made orders in terms of the chamber summons.
0
0
1