Moloney v Bells Securities Pty Ltd
[2005] QSC 141
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- Unreported Judgment
- Moloney v Bells Securities Pty Ltd[2005] QSC 141
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Moloney v Bells Securities Pty Ltd[2005] QSC 141
Moloney v Bells Securities Pty Ltd[2005] QSC 141
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 25 May 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 May 2005 |
JUDGE: | Moynihan J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – where application brought by third defendant for order for disclosure of instructions given to valuers. Uniform Civil Procedure Rules (Qld) 1999. Interchase Corporation Limited (In Liquidation) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141; Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia Pty Ltd [20001] QSC 7. |
COUNSEL: | Mr T Sullivan for the plaintiffs Ms C Swain (sol) for the first and second defendants Mr G Jorgensen (self rep) for the third defendant Mr B Heath (sol) for the fifth defendant |
SOLICITORS: | Gadens Lawyers for the plaintiffs Minter Ellison Lawyers for the first and second defendants Thynne & Macartney Solicitors for the fifth defendant |
[1] MOYNIHAN J: This is an application by the third defendant for an order for disclosure of the instructions given to valuers preparing reports to be used in the case. The action arises out of a managed investment scheme. The plaintiffs are court appointed trustees.
[2] They sue Bell Securities Pty Ltd the vehicle for the scheme, the members at the relevant time of a partnership carrying on practice as solicitors under the name Bell Solicitors, the third defendant, a company which carried on the business of valuers. The third and fourth defendants were employees of the third defendants.
[3] The claim against the valuer defendants is for negligent valuation and that valuation is relevant to the claim advanced against the first and second defendants.
[4] Two expert valuer reports have been prepared, one in July 2004 by Landmark White valuers and the other by Brian Cox. It is not disputed that the reports are caught by UCPR 428 and 429 and copies of them have been served.
[5] The application was brought on behalf of the third defendant. The application was argued by Mr Jorgensen, a valuer and a director of the third defendant, without objection by the other parties.
[6] The fifth defendant supported the application. The first and second defendants opposed it as did the plaintiff on the basis that the instructions were the subject of legal professional privilege citing Interchase Corporation Limited (In Liquidation) v Grosvenor Hill (Queensland) Pty Ltd (No 1)[1] and Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia Pty Ltd[2].
[7] The applicant submits that disclosure of the instructions to valuers could result in a more efficient and expeditious disposition of the matter. That contention is not without merit.
[8] Mr Jorgensen is also concerned that the instructions may reveal, if the face of the valuations do not, that the valuations were prepared on false premises. That is always a prospect with valuations.
[9] It may also be accepted that there is an increasing trend reflected in for example the Australian Property Institute 2004 Guidelines Manual and the Australian Property Institute Professional Practice 2004 Manual for instructions to be expressed in or annexed to valuations.
[10] UCPR 428(2)(b) requires that an expert’s report must include:
“(b)all material facts, whether written or oral, on which the report is based;”
[11] The reports purport to do so. For example Mr Cox summarises the issues he has been instructed to address. Until it is demonstrated otherwise the valuations are to be taken as complying with the rule. That compliance goes some distance at least in addressing Mr Jorgensen’s concerns. The instructions as such however remain privileged; see the cases referred to in [6].
[12] As to Mr Jorgensen’s concern that the valuations are based on false premises, compliance with UCPR 428(2) should facilitate exposing this, if it be the case. In any event valuations being matters of opinion have to be founded on facts provable or proven at the trial. Any misconceptions can be canvassed at the trial.
[13] The application is refused.