Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors

Supreme Court of NSW|2007-05-25|Before: Brereton J, Ms P, Mr J

CITATION : Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 689

HEARING DATE(S) : 25 May 2007 JUDGMENT OF : Brereton J

DECISION : First & second defendants' notice of motion dismissed with costs

CASES CITED : Street & 7 ors v Luna Park Sydney Pty Ltd & 3 ors [2006] NSWSC 533

Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) PARTIES : Robert Simkin (sixth plaintiff) Glen Federick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant)

Mr T Alexis SC w Ms P M Sibtain (plaintiffs) COUNSEL : Mr T G Parker SC w Mr J A Potts (first & second defendants) Mr J R Clarke (third & fourth defendants)

Wise Legal (laintiffs) SOLICITORS : Clayton Utz (first & second defendants) Esplins (third & fourth defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2267/05 Joan Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors JUDGMENT (ex tempore) 1 HIS HONOUR: Since 21 November 2002 the first defendant Luna Park Sydney has operated various thrill rides in the area to the north of Coney Island at Luna Park. In these proceedings the plaintiffs allege that development approvals for Luna Park, pursuant to which those rides are operated, were procured by misleading and deceptive conduct of the second defendant Metro Edgley Pty Limited. At the time of the conduct about which the plaintiffs complain, Luna Park Sydney had not been incorporated. The relief claimed by the plaintiffs includes injunctions restraining the second defendant, and the first defendant which is said to be its agent, from locating and operating the relevant rides in the area north of Coney Island, either at all or, alternatively, outside certain hours. 2 Paragraph 4.7 of the fourth amended statement of claim pleads: At all material times after 21 November 2002 the first defendant has acted as the agent of the second defendant in relation to the 2002 consent and the location and operation of the 'Ranger', the 'Spider' and the other thrill rides to the north of Coney Island at Luna Park. Paragraph 9.7 of the fourth amended statement of claim is in identical terms. 3 On 12 May 2006, I delivered a judgment [[2006] NSWSC 533] in which I refused an application by the first and second defendants for an order that paragraph 4.7 of the fourth amended statement of claim be struck out. The reasons I then gave are relevant to the present application and set out the relevant background up to that point, and this judgment should be read in conjunction with them. In short, it was originally contemplated that Metro Edgley would be lessee and operator of the Park; in late 2002, Luna Park Sydney was substituted in that role. The arrangement between Metro Edgley and Luna Park Sydney, by which that substitution occurred, and the continuing relationship between Luna Park Sydney and Metro Edgley in that respect, was not then apparent. However, it appeared that Metro Edgley held 50 percent of the shares in Luna Park Sydney. Possible explanations of the relationship was that Luna Park Sydney beneficially acquired Metro Edgley's interest by way of purchase, or that it was in some way a sub-tenant of Metro Edgley, or that it held its interest upon trust for Metro Edgley, or that it was an agent for Metro Edgley.

4 The particulars supplied to that point amounted to no more than, first, that Luna Park Sydney was implementing the development approval original granted to Metro Edgley and, secondly, that Metro Edgley retained an interest in the theme park business as a result of its shareholding in Luna Park Sydney. I concluded that those particulars were insufficient to found a case that Luna Park Sydney had ostensible authority, and that they were also insufficient to found a case that Metro Edgley had conferred authority on Luna Park Sydney by way of ratification, leaving only the allegation of a contractual agency. 5 In that respect, while the plaintiffs were unable to say whether the contract was oral or written or both, they apparently contended that the existence of a contract conferring authority on the second defendant could be inferred from, first, the relationship between Metro Edgley and Luna Park Sydney, secondly, the circumstance that Luna Park Sydney was now performing the functions originally envisaged for Metro Edgley and, thirdly, that Metro Edgley was then said to remain the owner of the relevant rides, a circumstance that has since been disputed by Metro Edgley. While those asserted facts were not necessarily sufficient to establish that Luna Park Sydney was Metro Edgley's agent, they at least raised a sufficiently arguable possibility that the more probable explanation in all the circumstances was a relationship of agency to justify the pleading, and having regard to the relative knowledge and means of knowledge of the parties as to the relationship between Metro Edgley and Luna Park Sydney, I concluded that it was appropriate to defer provision of further particulars until after discovery. However, I observed that if further particulars were not provided, there would be a powerful case for excluding evidence at the trial if it were tendered to prove an agency on a basis other than that which I have described. 6 Since then, a number of things have occurred. First, on 28 July 2006 and, by consent, I made a direction that the plaintiffs provide further particulars of agency as previously requested, by 31 August 2006; that has not been done. Secondly, the defendants have, in correspondence, repeatedly pressed for those further particulars. Thirdly, in correspondence, the plaintiffs have equally repeatedly maintained that they are unable to provide further particulars until discovery is completed, and they contend that discovery has not been fully completed. 7 Although their position has apparently shifted somewhat from time to time, the plaintiffs' current position is encapsulated in a letter dated 23 May 2007 from their solicitors Wise Legal to the defendants' solicitors Clayton Utz, in the following terms: We informed you on 21 February 2007 that we would provide you with further agency claim particulars should the need arise immediately after your client has provided us with proper discovery. This remains our position. For the reasons set out in this letter and in previous correspondence we do not accept we have been given proper discovery.

We note that his Honour's judgment of 12 May 2006 provided that 'if those further particulars are not provided in due course then the defendants will have a powerful case for resisting the admission at the hearing of evidence to prove the agency on any basis other than that already particularised'.

As we pointed out to you on 2 November 2006 his Honour's judgment already provides a regime for the giving of any particulars after discovery has been completed and the likely outcome if they are not provided in due course.

The regime does not provide for a strike out of the agency claim, nor does it order that further particulars must be given.

In those circumstances, we do not see the utility of arguing the motion tomorrow and accordingly invite you to withdraw it. Should your motion fail we will tender this letter and our letter of 2 November 2006 on any application for indemnity costs.

8 On the other hand, the defendants have consistently maintained that discovery, at least in respect of what they say is the relevant category, has been completed. The defendants say that the relevant category was Category 1 in the requested categories of discovery, which comprised: "All documents recording or evidencing any contract or agreement of agency, between LPS and MEPL in respect of the location and operation of rides in the area north of Coney Island". The defendants, unsurprisingly, say that there are no documents in that category. Of course, opinions may vary as to what is a contract or agreement of agency, and the defendants may bona fide deny that there is any document within that category. Notwithstanding that, there might be - I do not suggest for a moment that the evidence shows that there are -documents which, on another view, might fall within it.

9 The category was perhaps unfortunately narrowly worded because, as appears from the correspondence, documents not evidencing a contract or agreement of agency, but showing what was the relationship between Luna Park Sydney and Metro Edgley would, it seems to me, at this stage quite conceivably be relevant to the agency issue. For example, a document that showed that the relationship was one of vendor and purchaser would be relevant to the agency issue, because it would tend to negate the agency argument. 10 In subsequent correspondence, the solicitors for the plaintiffs have requested some additional documents outside the agreed categories of discovery and the solicitors for the first and second defendants have provided at least some of the further documents requested. However, it is not clear that all documents have been discovered which might cast light on the nature of the relationship between Luna Park Sydney and Metro Edgley - and, in particular, the transaction by which, and circumstances pursuant to which Luna Park Sydney was substituted for Metro Edgley and conducts the park as it now does.

11 The result is that, it seems to me, the position is no different, in substance, from the position when I delivered the earlier judgment to which I have referred. I take the plaintiffs' position to be that they are unable to provide any better particulars than they have already, notwithstanding such discovery as has so far taken place. In the previous judgment, I pointed out that the obligation of a party pleading was to give the best particulars that it could, and that the arrangements between the first defendant and the second defendant was within the means of the defendants and not of the plaintiffs. Discovery to date has apparently not cast further light on that issue. Recourse has apparently not been had to interrogatories for the purpose of further illuminating the issue. 12 Are the particulars, so far as they go, sufficient to justify the pleading? Again, it is to be remembered that a party is required to provide the best particulars it can, but not the evidence with which it will prove the case. The particulars so far provided describe the context in which the plaintiff will contend that the Court should find that the first defendant was the agent of the second defendant. Further evidence may emerge - including in the course of cross-examination - which illuminates the true nature of the relationship between the first and second defendants. The first and second defendants, if they wish, could produce documents which cast light on that relationship. The absence of evidence from persons who would know what that relationship was might be significant in the Court's decision making process as to what inferences might be drawn. 13 This is not a case in which the plaintiff is suing on a contract to which it is a party, in which circumstances a defendant reasonably expects the plaintiff to be able to particularise the plaintiff's version of the contract. Here, to make out its case, the plaintiff has to prove what was the relationship between two defendants. That, ultimately, will be proved one way or the other by the evidence at the trial and the inferences available from the evidence.

14 The particulars so far given, in my view, sufficiently apprise the defendants of the nature of the case against them in this respect to enable them to meet it. It is manifest that the plaintiffs will contend that the agency arises from the circumstances and transactions in whicih the second defendant was substituted for the first defendant as lessee and operator of the rides. 15 Accordingly, in my view, the notice of motion should be dismissed with costs.

16 The plaintiffs have foreshadowed an application that their costs be assessable on an indemnity basis, but given that the plaintiffs consented to a direction that they provide further particulars of the agency by 31 August and have never moved to vary or set aside that direction, I think they are, in part, the authors of their own misfortune and I am not inclined to make an indemnity costs order.

17 I order that the first and second defendants' notice of motion filed on 18 May 2007 be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Cases Cited (1)