The Court of Appeal has dismissed Peter and Alan Woods’s appeal over the wording of a discovery order in their dispute with Fresh Opportunities Stepaside Limited, affirming the High Court order made on 28 July 2023.
The dispute concerns an Insomnia-branded café operating inside a Fresh supermarket at Belarmine Plaza, Stepaside. The Woods, who were the landlords, say the arrangement breached a lease covenant barring the tenant from allowing another person to occupy the premises as a licensee, franchisee or concessionaire. Fresh Opportunities says it operated the café itself. The Court of Appeal did not decide that underlying lease dispute.
The landlords initially sought documents about arrangements between the tenant, Insomnia-related entities and BWG Foods-related entities. The High Court ordered discovery of contracts, agreements, side letters and negotiating correspondence concerning the terms under which Insomnia was permitted to occupy a Fresh outlet or sell products there. The landlords later sought a broader formulation covering the presence of Insomnia-branded cafés and products in Fresh supermarkets.
Delivering judgment on 12 November 2024, Mr Justice Allen said the appeal was not a rehearing of the discovery application. The appellants had to show that the High Court’s discretionary decision fell outside the range reasonably open to it, involved an error of principle, or that justice required appellate intervention. He found that they had not done so. The High Court judge had heard the parties’ competing proposals and made adjustments during the hearing; it was the appellants’ responsibility to formulate the documents they sought by reference to the issues.
The Court of Appeal noted that Fresh Opportunities had made discovery under the order, including documents relating to the removal or addition of Insomnia branding and marketing materials. The court had not seen the discovery affidavit, but it was not claimed that the tenant had said there was nothing to disclose under category 7(a). Allen J. was unconvinced that the order exposed the landlords to a real risk of injustice. He also noted that witnesses could be questioned at trial about whether, and on what terms, Insomnia was permitted to occupy the supermarket or sell products there.
The court dismissed the appeal and affirmed the High Court order. It said the respondent had succeeded entirely and was entitled to its appeal costs. The proposed costs arrangements were provisional: either party could make written submissions on costs, and the court indicated that execution of the costs order might be stayed pending final determination of the action. The judgment does not record a final costs determination.