Economos v Bowlers Club [2000] NSWSC 1065

New South Wales Supreme Court

CITATION : Economos v Bowlers Club [2000] NSWSC 1065 FILE NUMBER(S) : SC 20952/97 HEARING DATE(S) : 30/08/2000 JUDGMENT DATE : 24 November 2000

PARTIES : Economos & Co Pty Limited & Ors v Bowlers Club of NSW Limited & Ors JUDGMENT OF : James J at 1

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT 20952/97 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

S J Archer - Westpac Financial Services COUNSEL : J S Drummond - Jones Lang Lassale B Hull - Bowlers Club of NSW Corrs Chambers Westgarth - WFS SOLICITORS : Middletons Moore & Bevins - JLL Malcolm Johns & Company - Bowlers Club of NSW CATCHWORDS : Discovery - further discovery - Supreme Court Rules Part 23. CASES CITED : National Australia Bank v Idoport DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 24 November 2000

20592/97 - Economos & Co Pty Limited & Ors v Bowlers Club of New South Wales Limited & Ors

JUDGMENT 1 HIS HONOUR: This is an appeal from a decision of Master Harrison made on 29 May 2000, dismissing an application by the appellant Jones Lang Lasalle (NSW) Pty Limited ("JLL") for further discovery of documents by the respondents, the Bowlers Club of New South Wales Limited ("the Bowlers Club") and Westpac Financial Services Limited ("WFS"). JLL formerly had a different name, JLW (NSW) Pty Limited ("JLW") and its business was originally carried on by a partnership and not a company but these changes in the appellant's name and in the structure of the entity carrying on its business are of no significance. 2 For a proper understanding of the appeal, it is necessary to give an outline of the background to the principal proceedings in which the application for further discovery was brought. No affidavit providing such an outline was filed by any party. The outline I am about to give has been derived by me from the pleadings in the principal proceedings, the Master's judgment, the written submissions on the appeal from the Master's judgment and what I was told by counsel from the bar table during the hearing of the appeal. The outline does not purport to be comprehensive and may in some respects be inaccurate or at least controversial. However, it seems to me that the outline is likely to be sufficiently comprehensive and sufficiently accurate for the purposes of the present appeal. 3 On 7 September 1994 a fire broke out in a city building at 95-99 York Street, Sydney ("the building"). The Bowlers Club had been the owner of the building since 1968. In about July 1985 the Bowlers Club entered into a head lease of the building to Permanent Nominees (Aust) Limited ("PNA"). PNA held its interest as head lessee as trustee of two trusts, the Westpac Property Trust (sometimes referred to as "the WPT") and the Westpac Real Property Growth Trust (sometimes referred to as "the WRPGT"). It would seem that from August 1990 onwards PNA held its interest as head lessee solely as trustee of the Westpac Real Property Growth Trust. The manager of both the Westpac Property Trust and the Westpac Real Property Growth Trust was WFS. In 1985, at about the time at which it acquired its interest as head lessee, PNA entered into a management agency agreement with JLL, (sometimes referred to as "the MAA") whereby JLL agreed to manage the building for PNA. 4 PNA as head lessee entered into a large number of sub-leases of different parts of the building. In 1992 PNA sub-leased part of level 2 of the building to the Bowlers Club. This part of the building was used by the Bowlers Club for social and business functions. On or about 2 August 1994 PNA surrendered its interest as head lessee to the Bowlers Club, with the consequence that the parties who had been sub-lessees of PNA became head lessees of the Bowlers Club. There had been an earlier proposal in 1992 that PNA should surrender its interest as head lessee to the Bowlers Club but that proposal had not proceeded. 5 Upon the surrender by PNA of its interest as head lessee the management agency agreement between PNA and JLL was terminated. Discussions took place between the Bowlers Club and JLL with a view to JLL becoming the manager of the building for the Bowlers Club but these discussions had not produced any concluded agreement by 7 September 1994. 6 As I have already indicated, on 7 September 1994 a fire broke out in the building. The fire started on level 2 of the building and level 2 was destroyed. Smoke from the fire spread to other parts of the building, causing extensive damage. 7 A number of possible causes of the spread of the fire through the building have been identified. These causes include:-