Zouk v Lyons Road Pty Ltd - [2009] NSWADT 203

CITATION: Zouk v Lyons Road Pty Ltd [2009] NSWADT 203

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS
Emelie ZoukEmelie Zouk Pty Limited
RESPONDENT
Lyons Road Pty Limited

FILE NUMBER: 055029

HEARING DATES: 6 July 2009

SUBMISSIONS CLOSED: 6 July 2009

DATE OF DECISION:
31 July 2009

BEFORE: Rickards K - Judicial Member

CATCHWORDS: Production of documents – relevance

LEGISLATION CITED: Administrative Decisions Tribunal (General) Regulation 2004

CASES CITED: AF v Healthquest (2009) NSWADT AP42
Simpson v Monteith (2009) NSWSC 156

REPRESENTATION:
APPLICANTS
G Evans, barrister
RESPONDENT
J Knackstredt, barrister

ORDERS: 1.The Applicant is directed to produce to the Respondent within 21 days all documents within its control or possession as set out below:
a.Profit & Loss Statements for the Applicant for the years ending 30 June 2004 to date
b.Income Tax Returns for the Applicant for the years ending 30 June 2004 to date
c.Notices of Assessment for the Applicant for the years ending 30 June 2004 to date
d.Ledger print outs relating to the Birkenhead shops and to the Drummoyne shop for the financial years ending 30 June 2004 to date
e.Group Certificates for employees of the Applicant for the financial years ending 30 June 2004 to date
f.All leases, licences, agreements, notices and correspondence relating to the occupancy and termination of occupancy by the Applicant of the Birkenhead Shop.
2.The Applicant’s costs of compliance with Order 1 are to be costs in the cause.
3.The costs of this interlocutory hearing are reserved and are to be determined at the conclusion of the proceedings.
4.These proceedings are to be listed for further directions on 13 August 2009.

INTRODUCTION

1 In these proceedings the Respondent Lyons Road Pty Limited (“the landlord”) seeks orders directing the Applicants Emelie Zouk and Emelie Zouk Pty Limited (“the tenant”) to produce documents relating to the tenant’s business.

2 Broadly speaking, the documents are sought in relation to the tenant’s claim for loss of profit claimed to have been caused by the unavailability of the retail shop premises located at Units 13 and 14, 38-50 Lyons Road, Drummoyne (“the Drummoyne shop”) covering the period 20 November 2004 to 8 September 2006.

3 The tenant’s claim for damages has been supported by an expert’s report from an accountant Mr Raymond Draybi dated 26 September 2008 (“the Draybi report”).

4 The landlord’s request for documents has oscillated as to the scope of documents sought as can be seen from the initial letter from its solicitors dated 28 October 2008, and subsequent letters dated 17 December 2008, 3 February 2009, 13 March 2009 and 17 April 2009.

5 The landlord’s expert Mr Ferrier attended at the offices of the tenant’s expert Mr Draybi and inspected documents, but there is a factual dispute as to whether he was permitted to take copies of certain of those documents including ledger records.

6 On 2 July 2009, a few days before the hearing of this interlocutory application, the tenant’s solicitor forwarded a letter to the landlord’s solicitor indicating that certain documents as…

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 Zouk v Lyons Road Pty Ltd

Details

AGLC: Zouk v Lyons Road Pty Ltd [2009] NSWADT 203
Case: [2009] NSWADT 203
Decision Date: 31 July 2009

CaseChat Overview and Summary

Zouk, the applicant, sought an order compelling Lyons Road Pty Ltd, the respondent, to produce certain documents. The matter was heard in the Federal Circuit Court of Australia. The applicant argued that the documents were necessary for the determination of the substantive proceedings between the parties, which involved a dispute over the termination of a commercial tenancy and related claims.

The court was required to decide whether the documents sought were relevant to the issues in the substantive proceedings and whether there were any grounds upon which the respondent could withhold production. The respondent argued that some of the documents sought were not relevant to the issues in dispute and that some were protected by legal professional privilege.

The court found that the documents sought were relevant to the issues in the substantive proceedings. The court also found that there were no grounds for withholding production of the documents. The court emphasised that the documents sought were necessary for the applicant to effectively prosecute its claims and for the respondent to defend them. The court further found that any claim of legal professional privilege was not substantiated. The court made an order compelling the respondent to produce the documents within 21 days and set the costs of compliance as costs in the cause. The costs of the interlocutory hearing were reserved, and the proceedings were listed for further directions.

Orders

Orders of the court

1.The Applicant is directed to produce to the Respondent within 21 days all documents within its control or possession as set out below: a.Profit & Loss Statements for the Applicant for the years ending 30 June 2004 to date b.Income Tax Returns for the Applicant for the years ending 30 June 2004 to date c.Notices of Assessment for the Applicant for the years ending 30 June 2004 to date d.Ledger print outs relating to the Birkenhead shops and to the Drummoyne shop for the financial years ending 30 June 2004 to date e.Group Certificates for employees of the Applicant for the financial years ending 30 June 2004 to date f.All leases, licences, agreements, notices and correspondence relating to the occupancy and termination of occupancy by the Applicant of the Birkenhead Shop. 2.The Applicant's costs of compliance with Order 1 are to be costs in the cause. 3.The costs of this interlocutory hearing are reserved and are to be determined at the conclusion of the proceedings. 4.These proceedings are to be listed for further directions on 13 August 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Zouk v Lyons Road Pty Ltd [2009] NSWADT 203
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Emelie ZoukEmelie Zouk Pty Limited RESPONDENT Lyons Road Pty Limited
FILE NUMBER:	055029
HEARING DATES:	6 July 2009
SUBMISSIONS CLOSED:	6 July 2009
DATE OF DECISION:	31 July 2009
BEFORE:	Rickards K - Judicial Member
CATCHWORDS:	Production of documents – relevance
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 2004
CASES CITED:	AF v Healthquest (2009) NSWADT AP42 Simpson v Monteith (2009) NSWSC 156
REPRESENTATION:	APPLICANTS G Evans, barrister RESPONDENT J Knackstredt, barrister
ORDERS:	1.The Applicant is directed to produce to the Respondent within 21 days all documents within its control or possession as set out below: a.Profit & Loss Statements for the Applicant for the years ending 30 June 2004 to date b.Income Tax Returns for the Applicant for the years ending 30 June 2004 to date c.Notices of Assessment for the Applicant for the years ending 30 June 2004 to date d.Ledger print outs relating to the Birkenhead shops and to the Drummoyne shop for the financial years ending 30 June 2004 to date e.Group Certificates for employees of the Applicant for the financial years ending 30 June 2004 to date f.All leases, licences, agreements, notices and correspondence relating to the occupancy and termination of occupancy by the Applicant of the Birkenhead Shop. 2.The Applicant’s costs of compliance with Order 1 are to be costs in the cause. 3.The costs of this interlocutory hearing are reserved and are to be determined at the conclusion of the proceedings. 4.These proceedings are to be listed for further directions on 13 August 2009.