ICT PTY LTD v SEA CONTAINERS LTD; BUQUEBUS INTERNATIONAL LTD v SEA CONTAINERS LTD [1995] NSWCA 205

ICT PTY LID v SEA _ CONTAINERS LID; BUQUEBUS INTERNATIONAL LTD v SEA CONTAINERS LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and SHELLER JA 19 May 1995

[1995] NSWCA 205

Clarke JA. Miss Needham who appears for Buquebus International Pty Ltd has handed to the Court some draft short minutes of order. Mr Rayment, appearing for Sea Containers, does not dispute that those draft short minutes of order reflect the reasons of this Court, except insofar as in those orders the appellants, Buquebus Ltd and Lopez Mena, have sought that the costs of what could shortly be called the issue of tortious interference with contractual relations be paid on an indemnity basis.

The argument that the Court has entertained has been directed solely to that issue as there was no dispute that the other orders flow from the reasons of the Court. In support of the application for indemnity costs Miss Needham made the following points:

(1) The allegation against Buquebus was one of tortious interference with contractual relations.

(2) Damage is an essential ingredient of that tort.

(3) The plaintiff, Sea Containers, did not prove any damage.

It is not envisaged that any of the statements to be served will deal with this question and the plaintiff disputes that this is a proper request at that stage and defers responding to it until after the completion of the liability hearing.

BBI did not respond to that letter for reasons which were given, and to which I will shortly refer, but more importantly did not, prior to the commencement of the hearing or at an early stage of the hearing, seek clarification of the boundaries within which the hearing would be conducted.

It is true that BBI was joined at a late stage of the proceedings, that is on 23 July 1993. The joinder did, however, occur before the order for separate determination of issues, which was made on 20 August 1993, possibly about a month before the hearing commenced in September 1993.