Magic Millions Sales Pty Ltd v Thexton
[2004] QDC 451
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- Unreported Judgment
- Magic Millions Sales Pty Ltd v Thexton[2004] QDC 451
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Magic Millions Sales Pty Ltd v Thexton[2004] QDC 451
Magic Millions Sales Pty Ltd v Thexton[2004] QDC 451
DISTRICT COURT | No D983 of 2001 |
CIVIL JURISDICTION
JUDGE BOULTON
MAGIC MILLIONS SALES PTY LTD ACN (079 396 317) | Plaintiff |
and
MARY ANN THEXTON | Defendant |
and
GADEN HOLDINGS PTY LTD ACN 009 602 662 | Third Party |
SOUTHPORT
..DATE 22/10/2004
JUDGMENT
HIS HONOUR: This is the matter of the Magic Millions Sale Pty Ltd and Mary Ann Thexton and Gaden Holdings Pty Ltd, third party. And these are applications which I heard on Monday of last week. As time was short, I was reserved my decision. I have now had an opportunity to read the material. The action itself, concerns the purchase of a yearling colt, which I hereinafter call “The horse”, at the well known Magic Millions Sales on the Gold Coast.
The plaintiff has not been paid to this point of time, and the action is a relatively straight forward action seeking payment, with defences based upon misrepresentations and what would seem to be perhaps a total failure of consideration or some defence based upon what is alleged to be the defective state of the animal.
The defendant has made applications against the plaintiff and the third party for further and better disclosure. The defendant also applies for leave to join a second third party, to the proceedings. The existing third party, seeks to enforce an order for costs, made against the defendant by the imposition of a time limit and seeks a default provision for a stay, if the costs are not paid.
I was informed that the issue of disclosure between the defendant and the plaintiff has been resolved. No mention was made to me, for any order as to the costs of that part of the application. I will give the parties liberty to apply within seven days concerning the issue of costs, but in the absence of such further application being made there will be no order as to the costs of that issue.
As to the defendant's application for disclosure against the third party, the defendant seeks disclosure of the communications between the third party and the plaintiff, concerning the entry of the horse for sale and its suitability for racing. She also seeks copies of farm diaries, horse records, veterinary notes, concerning or arising out of the veterinary examinations, the care or treatment of the horse, which might be relevant to the health or condition of the horse at the time of sale.
I indicated during the hearing that if certain classes of such documents exist, or existed, they would seem to be plainly disclosable. The nil response from the third party would seem to suggest that the third party has not had, and does not have, such documents in its possession or control.
Mr Ambrose, in his written submissions, refers to the decision of Pincus, JA in the case of Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants and Bars Pty Ltd (2001) 1 QdR 276 at 282, 283 and quote:
“It is not enough, to justify an order for disclosure, to hold the opinion that ‘it is reasonable to suppose [that the document] contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary’. Nor, if a document sought is not directly relevant to an allegation in issue, does it matter whether or not it ‘is a document which may fairly lead [the party requiring discovery] to a train of injury, which may have either of these two consequences’. See per Brett L J at 63.
No doubt this deliberate narrowing of the obligation to provide disclosure makes it all the more important that practitioners and their clients earnestly fulfil their obligations under the rules relating to the topic; but drawing attention, as Mr Wilson does, to a chance that a particular category of undisclosed documents may help one side's case will not necessarily provide a basis for an order for further disclosure.”
In the face of such comments, it does not appear to me, that the applicant can succeed on its application for further disclosure from the third party.
I propose, however, for the time being, to reserve the costs of that portion of the application to the trial Judge. I must say that some of the submissions made, by the defendant, appear to me to have quite a degree of cogency and it might be preferable to leave it to the trial Judge to deal with those costs, when the issues in the case are determined at trial.
In the course of argument, I indicated to the defendant, who is appearing on her own behalf, that this is a case which might well have required the delivery of interlocutories. It seems that it may be a case where the knowledge of certain important facts, might be peculiarly within the area of particular parties to the mitigation, and unknown, in this instance, to the defendant.
Now, of course, it is a matter for the defendant, to decide whether or not to deliver such interlocutories, it is well known at the present time, of course, that such interlocutories must not be unduly prolix and must be very carefully directed to the issues in the case.
But having regard to what I intend to do and concerning the other aspect of the application, it would seem to me to be appropriate that the defendant have leave, within 14 days, to apply to the Court, as she must, to deliver interlocutories, and it will then, of course, be up to another Judge to decide whether or not to grant such leave.
Some of the grievances that the defendant was referring to, might well be addressed more advantageously through that means, rather than by further disclosure.
I move onto perhaps what was the most significant issue in the application, and that was this. The defendant seeks to join her estranged husband, as a second third party. At the time of purchase of the horse, she deposes to the fact that the two of them were both partners in D J and M Thoroughbred Partnership trading as Thexton Racing Stables.
Mr Morrow, who appeared on behalf of the plaintiff, adverted, of course, to the fact that this is at a late stage of proceedings, and such joinder can be expected to delay the action somewhat. The plaintiff, of course, is seeking to have the matter determined.
However, for a number of reasons, it seems to me to be highly desirable that Mr Thexton be made a party to the proceedings. Some of these are:
- (1)The material before me strongly suggests that Mr Thexton was a partner in the purchase of the horse and therefore he might well have useful knowledge of matters surrounding the purchase. And, further more, he might expect to be affected by the outcome of the proceedings, in which instance, he should be allowed to be a party to those.
- (2)He would seem to have been closely involved in the conduct of these proceedings, on behalf of the defendant, until fairly recently. And as a result, can be expected to be already familiar with the issues.
- (3)His joinder as a third party, would not seem to complicate the principal issues in the case concerning the horse. The plaintiffs action would therefore not seem to be changed appreciably, from its present shape.
- (4)In the event that the plaintiff succeeds against the defendant, he will then be available, as a party, to bear such part of the judgment, and/or such part of the costs, as the trial Judge might consider to be just.
- (5)There are apparently other legal proceedings between the defendant and himself in the high Court of New Zealand, and Family Court proceedings in Australia, which I am told, have been stayed, pending the outcome of the New Zealand proceedings. These actions could potentially delay a full resolution of this current matter, if Mr Thexton is not joined as a party.
I therefore order that the defendant be given leave to issue a third party notice and claim, in the form, which is Exhibit 1, to the affidavit of the defendant, sworn the 4th of October 2004, to join Mr Thexton as a second third party.
I make no order as to the costs of her application, as against the current third party. She should, however, pay the plaintiff's costs of the application, to be assessed. I direct though, that the assessment of those costs await the determination of the action, or earlier order of the Court. And I reserve for the trial Judge, her entitlement to seek contribution or indemnity for those costs against the second third party.
As for the costs ordered by Judge Robin, on the 31st of May 2004, which were assessed by the Deputy Registrar on the 29th of July 2004, I order that such costs be paid within 28 days. However, I decline at this stage to make a self-executing order on the non-payment of those costs.
Nothing further? Do you want liberty to reply?
MR COVES: Well, we will need some directions, your Honour, to control the speed of that - of those new third-----
HIS HONOUR: Yes.
MR COVES:-----party proceedings.
HIS HONOUR: Well, perhaps I will give the parties liberty to reply within seven days.
If you seek some directions, you'll have to have the matter - well, hopefully, you might be able to consent to them, and if you can consent to them, just provide a minutes of order to my associate. I'll be in Brisbane, and I'll make the orders as per the minutes of order. If they can't be agreed to, my associate will arrange to have the matter brought back on. Either it can come before me in Brisbane, I'll only be available for the next fortnight though. Or you could bring it on before the chamber Judge here on the Gold Coast, as far as directions go. That might be the better option, actually.
MR COVES: Could your Honour make some direction concerning the time committed to the defendant to issue that third party notice, so gran her - she's already drafted it?
HIS HONOUR: Yes.
MR COVES: Say-----
HIS HONOUR: She should be able to do it within seven days.
MR COVES: Within sevens days and-----
HIS HONOUR: Yes. Well, you write that please, that - where I've given her leave to issue that third party notice and claim-----
MR COVES: It's inserted-----
HIS HONOUR: -----within seven days?
MR COVES: Forthwith serve-----
HIS HONOUR: No, to be served - well, perhaps the best phrase to use is, “to file and serve the third party notice and claim within seven days.”
MR COVES: Thank you, your Honour.
HIS HONOUR: She doesn't appear to be here. I!ll have my associate - I'm not sure that she's - did she leave a fax?
ASSOCIATE: She did.
HIS HONOUR: Right. We can fax her a copy of my reasons. Thank you both.
MR COVES: Thank you, your Honour.
MR MORROW: Thank you, your Honour.
-----