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  4. Starzi Pty Ltd as Trustee for the Moore Family Trust A.C.N. 124 787 220 v Boss Building Maintenance (Australia) Pty Ltd A.C.N. 144 866 615 - [2016] QDC 19

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Starzi Pty Ltd as Trustee for the Moore Family Trust A.C.N. 124 787 220 v Boss Building Maintenance (Australia) Pty Ltd A.C.N. 144 866 615[2016] QDC 19

Starzi Pty Ltd as Trustee for the Moore Family Trust A.C.N. 124 787 220 v Boss Building Maintenance (Australia) Pty Ltd A.C.N. 144 866 615[2016] QDC 19

DISTRICT COURT OF QUEENSLAND

CITATION:

Starzi Pty Ltd as Trustee for the Moore Family Trust A.C.N. 124 787 220 v Boss Building Maintenance (Australia) Pty Ltd A.C.N. 144 866 615 & Another [2016] QDC 19

PARTIES:

STARZI PTY LTD AS TRUSTEE ACN 124 786 992

Plaintiff

v

BOSS BUILDING MAINTENANCE (AUSTRALIA) PTY LTD ACN 144 866 615

First Defendant

AND

RADNIC PTY LTD AS TRUSTEE ACN 124 787 220

Second Defendant

AND

CLINTON JOHN MOORE AND ANGELA MICHELLE MOORE

First Defendant added by Counterclaim

AND

ROSS ALEXANDER DAY AND NICOLE MAREE DAY

 

Second Defendant added by Counterclaim

FILE NO/S:

D129/2015

DIVISION:

Civil

PROCEEDING:

Application for further disclosure

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

18.2.16

DELIVERED AT:

Maroochydore

HEARING DATE:

12.2.16

JUDGE:

Robertson DCJ

ORDER:

  1. Within 14 days the First Defendant make further disclosure to the Plaintiff by way of a supplementary list of documents in accordance with the letter from Griffiths Parry Lawyers written pursuant to Rule 444 of the Uniform Civil Procedure Rules 1999 (‘UCPR’) dated 22 December 2015.
  1. Within 14 days the Second Defendant make disclosure to the Plaintiff by way of a list of documents, in accordance with the letter from Griffiths Parry Lawyers written pursuant to Rule 444 of the UCPR dated 18 January 2016.
  1. Pursuant to Rule 687 of the UCPR, the First Defendant pay the Plaintiff’s costs of this Application assessed by the Court at $2,000.
  1. Pursuant to Rule 687 of the UCPR, the Second Defendant pay the Plaintiff’s costs of this Application assessed by the Court at $2,000.

CATCHWORDS:

APPLICATION; DISCLOSURE; whether documents are “directly relevant to an allegation in issue in the pleadings”: Rule 211(1)(b) Uniform Civil Procedure Rules 1999; where a document (or class of documents) is only disclosable if “directly relevant in the sense only if it tends to prove or disprove an allegation in issue in the proceedings”.

 

 

 

 

 

COUNSEL:

SOLICITORS:

Legislation considered

Uniform Civil Procedure Rules 1999

Cases considered

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323

Meredith, J. for the plaintiff

Griffiths Parry Lawyers for the plaintiff

Spire Law for the first defendant

  1. [1]
    On 3.2.16 the plaintiff by application sought further disclosure from both the first and second defendants. By the time of the hearing, the first defendant had made further disclosure and its solicitor had given assurances that further documents would be disclosed within a short time. The second defendant was served with the application but did not appear. The first defendant argues only that one class of documents referred to in the Rule 444 letter of the plaintiff’s solicitor Mr McClymont dated 22.12.15 (p. 8 of TAMI filed 3.2.16) is now no longer disclosable as it is not “directly relevant to an allegation in issue in the pleadings”: Rule 211(1)(b). To understand the argument it is necessary to briefly examine the pleadings to understand what is still in issue. As has been repeatedly said, the duty to disclose encapsulated in Rule 211(1)(b) is more confined than the duty at common law. A document (or class of documents) is only disclosable if “… directly relevant to prove or disprove an allegation in issue in the proceedings”: Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323 at [45] per McMurdo J (as his Honour then was).

The pleadings

  1. [2]
    Without descending into details of the pleadings, it is common ground that in May 2007, the second defendant and the plaintiff entered into a franchise agreement with another entity to supply building services (in the Maroochydore, Sunshine Coast area) which agreement was assigned to the First Defendant on 27.6.11. The Second Defendant has not participated in the litigation, however, for these purposes it is tolerably clear that it and the plaintiff operated as franchisees in partnership until 30.6.15 when the second defendant purported to dissolve the partnership. The plaintiff (in the Statement of Claim) sues for unpaid invoices it alleges were sent to the first defendant from 2013 – 2015 which have not been paid. The Claim and Statement of Claim make no claim at all against the Second Defendant.
  1. [3]
    On 22.10.2015, the First Defendant counterclaimed against the plaintiff, the second defendant, and Mr and Mrs Moore (the people behind the plaintiff) and Mr and Mrs Day (the people behind the second defendant). As against the plaintiff it claims damages for breach of the franchise agreement. As against the Days and the Moores it claims damages pursuant to personal guarantees and also seeks to restrain the plaintiff and the Days and Moores from acting in competition with it for a period of 12 months. It also seeks alternatively “equitable damages” against these entities.
  1. [4]
    The Plaintiff filed a reply and answer on 17.11.15, and the dispute before me focusses on some paragraphs in the answer which is the defence of the plaintiff and the Moores to the first defendant’s counterclaim.
  1. [5]
    Paragraph 22 of the Counterclaim is in these terms:

“As a consequence of the breaches of the FTA pleaded at paragraphs 14, 16, 18 and 21 herein, the first defendant has suffered, and will continue to suffer loss and damage.

    Particulars

  1. (a)
    The first defendant has suffered, and will continue to suffer, loss of income which it would have otherwise derived under the TFA;
  1. (b)
    The first defendant will provide full particulars of its current loss after the completion of disclosure.”
  1. [6]
    Paragraph 20 of the Answers of the plaintiff and the Moores is in these terms:

“The plaintiff and the Moores deny the allegations contained in paragraph 22 of the Counterclaim as:

  1. (a)
    the allegations are contrary to fact and law;
  1. (b)
    it repeats and relies upon the facts pleaded in the Statement of Claim and in this Answer;
  1. (c)
    BBMA has not sustained any loss or damage because;
  1. (i)
    it has provided a new trade franchise/s to the second defendant and/or the second defendant added by counterclaim (the new franchises);
  1. (ii)
    the new franchises are undertaking the same type of work that the plaintiff completed for BBMA pursuant to the TFA;
  1. (iii)
    the new franchises are mitigating BBMA’s losses by quoting on and undertaking work for BBMA in the Territory, and also in the geographical areas defined as SCCS 040201 and SCS 040201 within the TFA.
  1. (d)
    any losses sustained by BBMA, which are denied, are:
  1. (i)
    limited to royalties BBMA may have been entitled to recover under the TFA for work completed within the Territory which is defined as ‘the geographical area indicated as SCCN 040203 on the map attached to this Agreement’;
  1. (ii)
    as a direct consequence of BBMA providing the second defendant, and/or the second defendant added by counterclaim, with a trade franchise (or the equivalent) for the areas referred to in the TFA as SCCS 040201 and/or SCS 040201, which it knew the existing Trade Franchisee obtained most of its work and revenue;
  1. (iii)
    alternatively, as a direct consequence of it inducing and procuring a breach of contract, being the partnership agreement that existed between the plaintiff and second defendant, or an associated or and entity related to the second defendant or its directors;
  1. (iv)
    a result of a breach by BBMA of the Franchise Code of Conduct ‘obligation to act in good faith’ in bringing the TFA to an end by inducing and procuring the new franchises when it knew, or could reasonably be expected to have known, that the second defendant was already in partnership with the plaintiff and operating the Trade Franchise under the existing TFA;
  1. (v)
    as a consequence of the second defendant’s unilateral decision to dissolve the partnership with the plaintiff and to take up other Trade Franchise/s with BBMA without the consent of the plaintiff;
  1. (vi)
    as a result of BBMA’s acquiescence to the discussion of the partnership that was the Trade Franchisee under the TFA.”
  1. [7]
    In his Rule 444 letter (at a time when the first defendant had not filed a reply to his clients Answer), Mr McClymont sought disclosure of:

“4. All contracts, quotes, tenders, work orders the First Defendant has obtained or received since 1 July 2015 for any “Approved Services” (as that term is defined in (the Agreement) within the Territory (as the that term is defined in (the Agreement)), or otherwise in the branch territories know as SCCN 040203, SCCS 040202 and/or SCS 040201 in the map attached to (the Agreement) referred to in the Statement of Claim”.

  1. [8]
    On the day of the hearing of the application, namely the 12th February, Mr Carpenter (Solicitor for First Defendant) filed by leave without objection his clients reply to the Answer by the plaintiff and the Moores.
  1. [9]
    In relation to paragraph 20(c) the first defendant pleads:

“(a) admits the allegation that it has not suffered loss and damage because of the allegations contained in paragraphs 20(c)(i), 20(c)(ii) and 20(c)(iii);

(b) admits the allegations contained in paragraphs 20(c)(i) and 20(c)(ii);

(c) admits the allegations contained within paragraph 20(c)(iii) that the new franchisee is quoting on and undertaking work for BBMA in the Territory and also in the geographical area defined as SCCS040201 within the TFA but says that mitigation is not in issue as a matter of fact and law;

(d) repeats and relies upon the matters pleaded in its defence and counterclaim and says that it has suffered loss and damage.”

  1. [10]
    As can be seen, the issues in dispute in relation to this aspect of the proceeding was directed at the first defendant’s duty to mitigate its loss which it admits it is now doing.

The arguments of the parties

  1. [11]
    Mr Carpenter argues that the plaintiffs claim relates to monies allegedly owing under the Agreement until 30.6.15, and therefore documents created after that day are not relevant to an issue in dispute. He submits that the admission contained in his clients reply filed by leave on 12.2.16, has the result that the issue of mitigation (pleaded in 20(c)) of the Answer filed 17.11.15) is no longer in dispute.
  1. [12]
    Mr Meredith (for the Plaintiff) submits that the documents referred to in item 4 are directly relevant to an issue in dispute relating to the alleged damage flowing from restraint provisions in the agreement raised in the first defendants Counterclaim and his clients answer.

Discussion

  1. [13]
    As Mr Meredith observes, the issues in dispute (relevantly) are not confined to the now admitted pleading in 20(c) of his client’s answer. In Mr McClymont’s letter, as well as the documents referred to in 4, at 5 – 7 he seeks disclosure of other documents at least 2 of which are categorised as documents that came into existence after 1 July 2015, to which the First Defendant does not object. I think the problem for Mr Carpenter is the breadth of his clients claim for damages as pleaded in the Counterclaim encapsulated in paragraph 22 of that pleading. The pleading in 20(d) of Mr Meredith’s clients answer is denied in paragraph 3 of the first defendant’s reply. It is still very much an issue in dispute between the active parties that “the first defendant has suffered, and will continue to suffer loss and damage”, and to try and avoid disclosure of one only class of documents created after 1 July 2015 which are directly relevant to this disputed issue, is unrealistic.
  1. [14]
    The plaintiff is entitled to the orders (including costs orders against both the first and second defendants) sought in the draft handed up to me at the conclusion of the hearing. The second defendant and Mr and Mrs Day were served with the application and did not appear. In those circumstances the orders sought against them in the application should be made, even though, at this stage, the plaintiffs have not alleged any cause of action against them.
  1. [15]
    It is ordered that:
  1. Within 14 days the First Defendant make further disclosure to the Plaintiff by way of a supplementary list of documents in accordance with the letter from Griffiths Parry Lawyers written pursuant to Rule 444 of the Uniform Civil Procedure Rules 1999 (‘UCPR’) dated 22 December 2015.
  1. Within 14 days the Second Defendant make disclosure to the Plaintiff by way of a list of documents, in accordance with the letter from Griffiths Parry Lawyers written pursuant to Rule 444 of the UCPR dated 18 January 2016.
  1. Pursuant to Rule 687 of the UCPR, the First Defendant pay the Plaintiff’s costs of this Application assessed by the Court at $2,000.
  1. Pursuant to Rule 687 of the UCPR, the Second Defendant pay the Plaintiff’s costs of this Application assessed by the Court at $2,000.
Close

Editorial Notes

  • Published Case Name:

    Starzi Pty Ltd as Trustee for the Moore Family Trust A.C.N. 124 787 220 v Boss Building Maintenance (Australia) Pty Ltd A.C.N. 144 866 615 & Another

  • Shortened Case Name:

    Starzi Pty Ltd as Trustee for the Moore Family Trust A.C.N. 124 787 220 v Boss Building Maintenance (Australia) Pty Ltd A.C.N. 144 866 615

  • MNC:

    [2016] QDC 19

  • Court:

    QDC

  • Judge(s):

    Robertson DCJ

  • Date:

    18 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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