163 Clarence Street Pty Ltd v New World Oil & Developments Pty Ltd & Ors [1995] FCA 136

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 249 of 1993 GENERAL DIVISION ) Between: 163 CLARENCE STREET PTY LIMITED ACN 001 042 262 Applicant And: NEW WORLD OIL & DEVELOPMENTS PTY LIMITED ACN 008 979 422 First Respondent/ First and Third Cross Applicant JAMINO PTY LIMITED ACN 002 704 047 Second Respondent/ First and Third Cross Applicant And: OPTIMUS PTY LIMITED ACN 0001 847 785 First Cross Respondent/Second Cross Applicant CARRIER AIRCONDITIONING PTY LIMITED ACN 000 024 742 Second Cross Respondent INTERIOR DIRECTIONS PTY LIMITED ACN 003 715 697 Third Cross Respondent REASONS FOR JUDGMENT EINFELD J SYDNEY 24 FEBRUARY 1995 The respondents moved on 4 January 1995 for a number of orders. Several of them have been dealt with orally or in the run of the hearing of the motion on 10 and 13 January. One significant application remains, viz. that

3. The hearing of the Applicant's claim against the Respondents and the hearing of the Respondents' claim against the Cross Respondents be returned to a joint hearing.

If this order is made, another order sought for the vacation of the hearing date on 13 March 1995 will have to be granted. This is because if one cross claim is rejoined to the hearing, all should be, and two of the cross respondents, having been joined only recently, could not be expected to be ready for hearing in such a short time. The facts do not need to be stated because they appear in the two written judgments I gave on 31 May and 25 November 1994 on the question of whether the applicant's claim and the cross claims should be heard together. In the first of those judgments Optimus was allowed to be joined in the existing proceedings on terms so as to expedite preparation. In the second (the November judgment) the trials of the principal claim and the first cross claim were separated. Since that time two additional cross claims have been filed, one by Optimus against Carrier Air Conditioning Pty Ltd (Carrier) and one by the respondents against Interior Directions Pty Ltd (Interior Directions) provisionally allowed pending further submissions on the matter, and ultimately decision by the Court, of the question of joinder. The matter is not merely academic, forensic or argumentative. The two previous judgments have outlined the extraordinary delays in this matter caused in major part by the respondents and Optimus. Other events have taken place during the interlocutory stages of the case which to say the least do not bring credit on the respondents. If the present fixture was vacated and the cross claims joined in a new hearing, the case presently fixed for one week would blow out to many weeks if not months. Both because of the time needed by Carrier and Interior Directions to fully prepare for the hearing, and because of the pressure of work in the Court, such a hearing could not take place this year. By the time a judgment could be written, any success enjoyed by the applicants would be very long delayed. The costs would be enormous, with the applicant a silent participant during much of the hearing while the cross claims were pursued. Apart from the increased inconvenience and discomfort from faulty airconditioning that would then have been proved, the applicant's lease of level 22 would be nearly concluded, with the consequence that at least some of the relief granted, including any section 87 relief, would be comparatively moot. There is considerable doubt that further delay could be adequately compensated in damages, and costs would certainly not compensate the applicant for the loss of the hearing date. Moreover, it has now become clear from the evidence and submissions that the respondents do not essentially deny that the airconditioning on level 22 does not function adequately and as they represented it would function. In all the circumstances a heavy responsibility devolves upon those who seek orders which would have these results. The respondents submitted that the judgment of 24 November 1994 was "inappropriate" and "wrong" and that it should be reversed. They say that since the November judgment the issues in the cross claim against Optimus have been "significantly narrowed". The factual issue between them is now described as "whether the airconditioning on level 22 is deficient and if so in what respects". This issue, to be decided on expert evidence, "will involve determining the nature and extent of any problem in the operation of the airconditioning, including determining the cause of any problems, whether the problems are capable of rectification and if so at what cost" (respondents' written submissions filed 27 January 1995). The respondents allege that this issue is "at the heart of their defence to the statement of claim and that the (November) judgment misconceived the nature of the defence" and the respondents' evidence. The applicants of course must primarily prove that the respondents' representations about the airconditioning amounted to misleading or deceptive conduct. The respondents concede, as was said in the November judgment, that although there may be some limited expert evidence it will not be necessary for the applicant to prove what the technical source of the problem with the airconditioning is, but only that the occupants of level 22 find it uncomfortable. The respondents describe this situation as establishing that the issues in the applicant's claim "correspond precisely" to the issues in the Optimus cross claim. It seems to me that the respondents' own definitions deny their conclusion.