Grimson, M. v O'Donnell, G.F. [1995] FCA 527

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG 737 of 1994 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION )

BETWEEN: MARTIN GRIMSON Applicant

AND: GARY FRANCIS O'DONNELL Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 5 MAY 1995

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: I am of the opinion that the claims made against the first and second respondents in this matter are claims released by the deed of release of 16 April 1992. It seems to me that this is apparent beyond the possibility of argument to the contrary. The relevant covenant is clause 3 of the deed. This clause releases the landlord, that is to say Evenlong Pty Limited, and the representatives of Evenlong, and that includes Mr Gary O'Donnell, from any claim existing or arising in the future in relation to the representations concerning the sale of the business by Evenlong to the present applicant and Ricky Martin Grimson. Accordingly, this proceeding is in my opinion an abuse of process, insofar as it relates to the claims against the first and second respondents. It is appropriate to exercise the power given by order 20 rule 2 and dismiss the action insofar as those two respondents are concerned. In relation to the third respondent, Enima Pty Limited, the situation is different. That company was not a party to the deed of release and is not sued in this case on the basis that it represented a party to the arrangement at the time of the negotiations. There is an affidavit of Gary O'Donnell, the first respondent, who is also a director of the third respondent, stating that the third respondent does not now have, and has not at any material time had, an interest in or involvement with the hotel premises nor the business carried on at that hotel. If I was satisfied that the applicant had received adequate notice of this affidavit before today, so as to enable him to take such steps as he wished to take in order to present evidence of involvement or to contest Mr O'Donnell's affidavit; and if, nonetheless, the statement appeared to be the correct position, I would take the view that the proceeding was an abuse of process as against the third respondent. But I am not so satisfied. Through an unfortunate chain of events - heavily contributed to by the failure of the solicitor on the record, Mr James McCrudden, to take any interest in the matter or to return telephone calls from the solicitor for the respondent, it is possible that Mr Grimson was not aware of Mr O'Donnell's affidavit until today. In these circumstances, I think it is only fair to allow Mr Grimson some time to investigate the position. The evidence, so far, on the question is confined to the tender of a valuation of the hotel in which the valuer states that he was acting under instructions "from Mr Gary O'Donnell, Enima Pty Limited, 147 Newcastle Street, Fyshwick, ACT, 2609". This, of course, is not evidence that any representations that were made were made on behalf of Enima Pty Limited. It merely indicates that the valuer associated Mr O'Donnell with Enima when he prepared the valuation. This is not surprising, given that Mr O'Donnell is a director of Enima and apparently held that office at the relevant time. However, as I say, it is desirable to allow the applicant to investigate the matter further. Accordingly, insofar as the motion relates to the position of the third respondent, I stand it over for further hearing on 27 July 1995. I grant leave to the applicant to serve subpoenas returnable at 9.30am on any Wednesday before a Registrar of the Court. I dismiss the proceeding as against the first and second respondents. I order that the applicant pay the costs of the proceeding incurred by the first and second respondents. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox. Associate: Dated: 5 May 1995 APPEARANCES Counsel for the Applicant: I H Wallach Solicitors for the Applicant: J McCrudden Counsel for the Respondent: J W Stevenson Solicitors for the Respondent: Clayton Utz Date of hearing: 5 May 1995