Murphy v Overton Investments Pty Ltd [1999] FCA 689

FEDERAL COURT OF AUSTRALIA

Murphy v Overton Investments Pty Ltd [1999] FCA 689

JOHN JAMES MURPHY v OVERTON INVESTMENTS PTY LTD N 159 OF 1999 EMMETT J 18 MAY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 159 OF 1999

BETWEEN: JOHN JAMES MURPHY

Applicant

AND: OVERTON INVESTMENTS PTY LIMITED

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 18 MAY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The statement of claim filed on 23 February 1999 be struck out.

2. Leave be given to the applicant to file an amended statement of claim and an amended application no later than 8 June 1999.

3. The respondent file a defence to any such amended statement of claim no later than 22 June 1999.

4. The amended notice of motion filed in court on 18 May 1999 by the respondent, Overton Investments Pty Ltd, be stood over for further hearing on 30 June 1999 at 10.15am.

5. The applicant pay the costs thrown away by the adjournment to 30 June 1999.

6. Leave be given to the respondent to tax a bill of those costs forthwith.

7. The applicant pay the costs thrown away by any amendment in any event.

8. Liberty be reserved to restore the matter for directions on any Friday on 3 days' notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 159 OF 1999

BETWEEN: JOHN JAMES MURPHY

Applicant

AND: OVERTON INVESTMENTS PTY LIMITED

Respondent

JUDGE: EMMETT J

DATE: 18 MAY 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 The Applicant has brought proceedings under Part IVA of the Federal Court of Australia Act 1976 ("the Act") in which damages and other relief are sought from Overton Investments Pty Limited ("Overton"). The claims arise out of the relationship which exists between the Applicant and the other members of the prospective class on the one hand ("the residents"), and Overton on the other, concerning a retirement village known as "The Heritage Retirement Village" at Padstow Heights in south-west Sydney. The owner of the land and the manager of the retirement village is Overton. 2 In August 1996, Overton commenced proceedings in the Residential Tenancies Tribunal concerning a complaint that the various residents in the retirement village had failed to approve budgets for 1994 to 1997. In the course of those proceedings, Overton was ordered to provide the residents with copies of the audited financial statements and on 24 September 1996 in accordance with the Tribunal's orders, Overton supplied audited financial statements for the year ended 30 June 1996, showing an annual deficit of $123,987. On 4 October 1996, Overton demanded payment of the June 1996 shortfall from the residents. 3 On 11 December 1996, the Residential Tenancies Tribunal dismissed Overton's proceedings and held that it had no jurisdiction to make the orders that had been sought. On 10 January 1997, Overton started proceedings in the Local Court against 84 residents to recover the shortfall which was claimed in letters of demand which had been delivered in December 1996. 4 In response to those proceedings, the residents commenced proceedings in the Supreme Court of New South Wales and, on 27 February 1997, they obtained an injunction preventing Overton from proceeding with the Local Court proceedings. Those proceedings continued in the Supreme Court of New South Wales before Simos and Windeyer JJ. In those proceedings, Overton filed a cross-claim seeking the amounts which it had sought in the Local Court. 5 A defence was filed to that cross-claim. The defences raised matters of estoppel and other factual matters relating to misrepresentations allegedly made by or on behalf of Overton to the residents in connection with the negotiations that led to the grant of their tenancies of units within the village. A number of factual matters were referred to Mr Taylor SC for a report pursuant to Part 72 of the Supreme Court Rules. Mr Taylor reported in due course on a number of questions which were ultimately the subject of orders made by the Supreme Court. 6 In particular, on 23 April 1999 Windeyer J directed that all matters arising under certain paragraphs of the amended defence to the cross-claim, being the matters relating to estoppel and misrepresentations, be brought to trial by separate action by the residents and otherwise that judgments be entered on the cross-claim, without regard to such defences, but subject to any application for a stay. On the same day, Windeyer J directed that judgment be entered for Overton on the cross-claim against individual cross defendants for separate amounts set forth in a document which is annexed to the orders which he made on that day. 7 His Honour also ordered that proceedings for enforcement of the judgments against the cross defendants be stayed upon condition that the cross defendants pay to Overton 50% of the amount shown against the name of such cross-defendant in the document. Such payment was to be made within 21 days of the date of the order. His Honour further ordered that the stay continue until the conclusion of the Federal Court proceedings or earlier order of the Supreme Court. 8 Overton has now applied to the Court for orders as follows: