Crown International Consortium Pty Ltd v Bruce Lyon [2008] NSWSC 1334

New South Wales Supreme Court

CITATION : Crown International Consortium Pty Ltd v Bruce Lyon [2008] NSWSC 1334

HEARING DATE(S) : 5/12/08 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 5 December 2008

DECISION : See para [32] of the judgment.

CATCHWORDS : PROCEDURE – application for extension of time to serve evidence – less than diligent approach by plaintiff to date – no specific prejudice to defendants – extension granted – additional order that proceedings be dismissed unless evidence served in accordance with orders. - DISCOVERY AND INTERROGATORIES – plaintiff proposes to obtain expert evidence – seeks further discovery – documents sought not logically or reasonably connected to subject matters of expert evidence – application dismissed.

LEGISLATION CITED : Civil Procedure Act 2004

CASES CITED : Phornpisutikul v Mileto {2006] NSWSC 57

Crown International Consortium Pty Ltd (Plaintiff) PARTIES : Bruce Lyon (Holdings) pty Limited (First Defendant) Cloudgard (No.240) Pty Limited (Second Defendant) Bruce Lyon Pty Limited (Third Defendant)

FILE NUMBER(S) : SC 50192/07

COUNSEL : I R Pike (Plaintiff) M A Ashhurst SC (Defendants)

SOLICITORS : Slater & Gordon Lawyers (Plaintiff) McCabe Terrill Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

5 December 2008 (ex tempore revised 5 December 2008)

50192/07 CROWN INTERNATIONAL CONSORTIUM PTY LTD AND ANOR v BRUCE LYON (HOLDINGS) PTY LTD & 2 ORS JUDGMENT 1 HIS HONOUR: The plaintiff (Crown) seeks orders:

(1) That the defendants (collectively, Bruce Lyon) provide further discovery within seven days; and (2) That Crown thereafter have further time for the service of expert evidence. 2 In very brief compass, Crown's claim in these proceedings is founded on a joint venture agreement made between it and Bruce Lyon. The joint venture was for the development of a property at Epping. The third defendant, presumably a licensed real estate agent, was to be the exclusive selling agent of the units to be brought into existence through the execution of the joint venture project. 3 Crown asserts that the third defendant was to be an exclusive agent for three years from 31 March 2004 until 31 March 2007. It says that the exclusive agency came to an end on the latter date and that the third defendant was thereafter (presumably, in default of some other action being taken) no more than a non-exclusive agent for the sale of the units. 4 Up until recently, Bruce Lyon seems to have taken the position that the third defendant's exclusive agency continued after 31 March 2007, presumably until some step was taken thereafter to terminate it. However, on 25 September 2008, Bruce Lyon's current solicitors notified Crown's current solicitors that Bruce Lyon would not oppose a declaration that the agency between Crown and the third defendant ceased to be exclusive on 31 March 2007, and continued as a non-exclusive agency thereafter until terminated. 5 Crown appears to assert that its damages are the loss of the opportunity to effect sales after 31 March 2007 because, through what it says was Bruce Lyon's intransigence, the joint venture was not able to appoint other non-exclusive selling agents - at least, presumably, until 25 September 2008. As I understand it, Crown wishes to argue that if other non-exclusive agents had been appointed, and had marketed the units in an appropriate and effective way, further sales would have been achieved than those (if any) that were achieved after 31 March 2007. 6 To that end, Crown wishes to put on evidence from an expert in the field of marketing real estate developments. It has identified someone whom it says is an appropriate expert, Mr David Viarella. Mr Viarella has agreed to provide an expert report. 7 The questions on which Mr Viarella has been asked to express an opinion are (paraphrased):